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Pinder and Minister for Home Affairs (Migration)

Pinder and Minister for Home Affairs (Migration)

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Pinder and Minister for Home Affairs (Migration) [2019] AATA 1398 (21 June 2019)
Division:GENERAL DIVISION
File Number: 2019/1854
Re:Kendal Nathaniel Pinder
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:21 June 2019
Place:Perth

The decision under review is set aside and substituted with the decision that the cancellation of the Applicant’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
...........[sgd].............................................................
Deputy President Boyle
CATCHWORDS
MIGRATION – Migration Act 1958 (Cth) – mandatory visa cancellation – s 501CA(4) – Direction 79 – protection of the Australian community – nature and seriousness of the conduct – the risk to the Australian community – nature of harm – expectations of the Australian community – strength, nature and duration of ties – extent of impediments if removed – 24 years since last offence – best interests of minor children – decision under review set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) – ss 500(1)(ba), 501(3A), 501(6), 501(7)(c), 501CA(4), 501CA(4)(b)(ii)
Australian Citizenship Act 1948 (Cth)
CASES
Afu and Minister for Home Affairs [2018] FCA 1311
Briginshaw v Briginshaw (1938) 60 CLR 336
CZCV and Minister for Home Affairs [2019] AATA 91
DKXY v Minister for Home Affairs [2019] FCA 495
Doan and Minister for Home Affairs [2019] AATA 169
FYBR v Minister for Home Affairs [2019] FCA 500
Kumeroa and Minister for Home Affairs [2018] AATA 3744
Magarach and Minister for Home Affairs [2019] AATA 353
NDBR and Minister for Home Affairs [2019] AATA 612
Nathanson and Minister for Home Affairs [2019] AATA 642
Nguyen and Minister for Home Affairs [2018] AATA 3726
Re Harrison and Minister for Immigration & Citizenship (2009) 106 ALD 666
The State of Western Australia v Pinder [No 2] [2016] WADC 119
Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Zyaran and Minister for Home Affairs [2018] AATA 3785
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multiculutral Affairs, Direction No. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s502 and revocation of a mandatory cancellation of a visa under s501CA (Department of Home Affairs, 22 December 2014) – para 11.3
Minister for Immigration, Citizenship and Multicultural Affairs, Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Department of Home Affairs, 28 February 2019) – paras 2, 6.1, 6.2, 6.3, 6.3(4), 7(1)(b), 8, 8(3), 8(4), 8(5), 9.1.2(1), 11.1.2(1), 13(2), 13.1, 13.1(2)(a), 13.1.1(1), 13.1.1(1)(a), 13.1.1(1)(b), 13.1.1(1)(e), 13.1.1(1)(h), 13.1.2, 13.1.2(1)(a), 13.2, 13.2(4)(a), 13.2(4)(b), 13.3, 13.3(1),13.5, 14, 14.2, 14.5(1)
REASONS FOR DECISION
Deputy President Boyle
21 June 2019
THE APPLICATION

The Applicant seeks review of a decision of a delegate of the Respondent dated
29 March 2019 (the decision) not to revoke, under s 501CA(4) of the Migration…

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 1398
Decision Date: 21 June 2019

CaseChat Overview and Summary

This matter concerned an application by the Applicant for review of a delegate's decision not to revoke the mandatory cancellation of his visa under section 501CA(4) of the *Migration Act 1958* (Cth). The Administrative Appeals Tribunal (Tribunal) had jurisdiction to review the decision. The central issue before the Tribunal was whether there was another reason why the visa cancellation decision should be revoked, given that the Applicant did not pass the character test.

The Tribunal was required to determine if the Applicant passed the character test and, if not, whether there was another reason to revoke the cancellation. In considering the protection of the Australian community, the Tribunal had regard to Direction 79, which mandates consideration of the nature and seriousness of the Applicant's conduct and the risk to the community of further offending. The Direction specifies that violent and sexual crimes are viewed very seriously, as are crimes against vulnerable members of the community. The frequency and cumulative effect of offending, as well as whether the non-citizen has re-offended after being warned about migration consequences, are also relevant factors.

The Applicant, a citizen of the Bahamas, had resided in Australia since 1985, playing professional basketball. He was convicted of sex-related offences committed in 1988 and 1990, for which he served a significant period of imprisonment. He was subsequently convicted of further sex offences committed in 1995, leading to the cancellation of his parole and his visa. Despite the Applicant's long period of residence in Australia and his ties to the community, the Tribunal found that the seriousness and nature of his criminal conduct, particularly the sex offences, weighed heavily against revoking the visa cancellation. The Tribunal ultimately determined that there was no other reason to revoke the cancellation decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

In addressing the above issue, the Tribunal must determine:(a)whether the Applicant passes the character test (as defined in s 501(6) of the Act); and(b)if he does not, whether the Tribunal is satisfied that there is another reason why the cancellation decision should be revoked.BACKGROUND The Applicant was born on 25 April 1956 and is a citizen of the Commonwealth of the Bahamas. He left the Bahamas with his family as a 10 year old and moved to Florida in the United States. He has never been back to the Bahamas (Transcript at 12). The Applicant played professional basketball in the United States with North Carolina State, Chicago Bulls and Harlem Globetrotters (statement of Calvin Bruton – A3 and R4, page 666). The Applicant first visited Australia in 1982 at the age of 26 on a basketball tour with the Harlem Globetrotters (Transcript at 26). He returned to Australia in 1985 to take up a contract to play with the Sydney Supersonics in the National Basketball League (NBL) where he played the 1985 and 1986 seasons. In 1987 the Applicant moved to Perth to play with the Perth Wildcats in the NBL. He played for the Wildcats from 1987 to 1992. The Applicant was arrested in 1992 and in June of that year he was convicted on sex related offences committed in 1990 and was imprisoned. In 1993 the Applicant was also convicted of sex offences which occurred in May 1988 and received terms of imprisonment totalling seven and a half years (five years taking into account concurrent terms). In the end the Applicant was sentenced for the offences committed in 1988 and 1990 to a total effective term of seven years and six months imprisonment from 29 May 1992 to 28 November 1999. The Applicant was released on parole in February 1995 (R4, page 803). The Applicant’s conditions of parole were varied to allow him to relocate to New South Wales where he had secured a contract to play for the Illawarra Hawks. He played, or at least commenced, the 1995 NBL season with that team. At some time in 1995 the Applicant was arrested on the charges relating to sex offences committed in New South Wales on 5 May 1995 (see [21] below). The Applicant was imprisoned in New South Wales in November 1995 and in January 1996 was convicted of the offences committed on 5 May 1995. He was sentenced to five years’ and one and a half years’ (concurrent) imprisonment respectively for these offences with a requirement to serve three years and nine months imprisonment. On 8 December 1995 the Applicant’s parole relating to his Western Australian offences was cancelled because of the offences committed in New South Wales and a warrant for his apprehension was issued (R4, page 803). The Applicant’s evidence at the hearing was that he was not aware of the cancellation of his parole or the issue of the warrant for his apprehension until he appeared in the Burwood Local Court in December 2013 on the larceny offence (Transcript at 34). The Applicant was granted Australian citizenship in September 1989 (R4, page 714). This was revoked (deprived) on 27 June 2007 under the Australian Citizenship Act 1948 (Cth) (R3, G73).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Applicant seeks review of a decision of a delegate of the Respondent dated 29 March 2019 (the decision) not to revoke, under s 501CA(4) of the Migration Act 1958 (Cth) (the Act), a decision under s 501(3A) of the Act to cancel the Applicant’s Class BB Subclass 155 visa (the visa). The application for review is made in accordance with s 500(1)(ba) of the Act, which allows applications to be made to the Administrative Appeals Tribunal (Tribunal) for review of decisions of a delegate of the Minister under s 501CA(4) of the Act not to revoke a decision to cancel a visa. The Tribunal is satisfied that the application has been made in accordance with the relevant legislation and that the Tribunal has the jurisdiction to review the decision.THE ISSUES The issue is whether the Tribunal should exercise the power in s 501CA(4) of the Act in favour of revoking the mandatory cancellation of the visa. In addressing the above issue, the Tribunal must determine:(a)whether the Applicant passes the character test (as defined in s 501(6) of the Act); and(b)if he does not, whether the Tribunal is satisfied that there is another reason why the cancellation decision should be revoked.BACKGROUND The Applicant was born on 25 April 1956 and is a citizen of the Commonwealth of the Bahamas. He left the Bahamas with his family as a 10 year old and moved to Florida in the United States. He has never been back to the Bahamas (Transcript at 12). The Applicant played professional basketball in the United States with North Carolina State, Chicago Bulls and Harlem Globetrotters (statement of Calvin Bruton – A3 and R4, page 666). The Applicant first visited Australia in 1982 at the age of 26 on a basketball tour with the Harlem Globetrotters (Transcript at 26). He returned to Australia in 1985 to take up a contract to play with the Sydney Supersonics in the National Basketball League (NBL) where he played the 1985 and 1986 seasons. In 1987 the Applicant moved to Perth to play with the Perth Wildcats in the NBL. He played for the Wildcats from 1987 to 1992. The Applicant was arrested in 1992 and in June of that year he was convicted on sex related offences committed in 1990 and was imprisoned. In 1993 the Applicant was also convicted of sex offences which occurred in May 1988 and received terms of imprisonment totalling seven and a half years (five years taking into account concurrent terms). In the end the Applicant was sentenced for the offences committed in 1988 and 1990 to a total effective term of seven years and six months imprisonment from 29 May 1992 to 28 November 1999. The Applicant was released on parole in February 1995 (R4, page 803). The Applicant’s conditions of parole were varied to allow him to relocate to New South Wales where he had secured a contract to play for the Illawarra Hawks. He played, or at least commenced, the 1995 NBL season with that team. At some time in 1995 the Applicant was arrested on the charges relating to sex offences committed in New South Wales on 5 May 1995 (see [21] below).

Ratio Decidendi

Legal Principle Established

The Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) for the mandatory cancellation of his visa to be revoked. The issue therefore is whether the discretion under s 501CA(4)(b)(ii) should be exercised. In other words, is there another reason why the original decision should be revoked?PRIMARY CONSIDERATIONSFirst primary consideration: Protection of the Australian Community from criminal or other serious conduct (13(2)(a)) Paragraph 13.1 of Direction 79 provides that when decision-makers are considering the protection of the Australian community, they:(1) ...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. Remaining in Australia is a privilege that Australia confers on noncitizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.(2) 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 13.1(2)(a)) Paragraph 13.1.1(1) of Direction 79 provides:(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very 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) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;e) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;f)The cumulative effect of repeated offending;g) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;h) 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);i)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; or 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;