Pretorius and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 1869

Pretorius and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1869 (15 June 2021)
Division:GENERAL DIVISION
File Number: 2020/8167
Re:Rene Pretorius
APPLICANT

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

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:15 June 2021
Place:Brisbane

The decision under review is set aside and substituted with a decision that the Tribunal does not exercise the discretion in s 501(1) of the Act to refuse to grant the Applicant a Visitor (Class FA) Subclass 600 Visa.
.........................[sgd]............................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – review of decision under s 501(1) of the Migration Act 1958 (Cth) refusing to grant a Class FA subclass 600 visitor visa – where the visa Applicant does not pass the character test – where there is a substantial criminal record – consideration of Ministerial Direction Number 90 – decision under review set aside and substituted
Legislation
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Secondary Materials
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
DECISION
REASONS FOR DECISION
BACKGROUND
ISSUES
DOES THE APPLICANT PASS THE CHARACTER TEST?
SHOULD THE TRIBUNAL EXERCISE ITS DISCRETION TO REFUSE TO GRANT THE VISA TO THE APPLICANT?
The principles in paragraph 5.2
The Primary and Other Considerations
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
Application of Factors in Paragraph 8.1.1(1) of the Direction
Prioritisation of the evidence
Analytical framework
Background to the Applicant’s recruitment and his state of mind when joining the coup
The Applicant’s criminal conviction – breach of the South African Civil Aviation Offences Act
The events of the attempted coup – generally
The Applicant’s perspective on his involvement in the coup
Application of paragraph 8.1.1 of the Direction
Conclusion on the nature and seriousness of the Applicant’s offending
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct (8.1.2(2)(a))
The likelihood of the non-citizen engaging in further criminal or other serious conduct (8.1.2(2)(b))
The Applicant’s contention
Respondent’s contention
Travel to other countries
The extent of the Applicant’s offending history (including the “other conduct”)
The level of the Applicant’s rehabilitation
The Applicant’s current physical condition
Remorse
Age and maturity

Conclusions on likelihood of re-offending
Is the risk of harm affected by any of the factors referred to in 8.1.2(2)(c)?
Conclusions on risk
Conclusion: Primary Consideration 1
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Identification of relevant child/ren
Consideration of factors
Conclusion: Primary Consideration 3
PRIMARY CONSIDERATION 4: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Analysis – Allocation of Weight to this Primary Consideration 4
Conclusion: Primary Consideration 4
OTHER CONSIDERATIONS
(a) International…

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: Pretorius and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1869
Case: [2021] AATA 1869
Decision Date: 15 June 2021

CaseChat Overview and Summary

This matter concerned an application for review of a decision to refuse a Class FA subclass 600 visitor visa to the Applicant, Mr Pretorius. The refusal was based on the Applicant failing to pass the character test due to having a substantial criminal record. The decision-maker was required to consider Ministerial Direction Number 90 in determining whether to refuse the visa.

The primary legal issue before the court was whether the decision-maker had erred in exercising the discretion to refuse the visa, having regard to the Applicant's past conduct and the considerations outlined in Ministerial Direction Number 90. Specifically, the court had to assess the weight to be given to various primary and other considerations, including the Applicant's links to the Australian community, the expectations of the Australian community, and the best interests of a grandchild.

The court reasoned that while the Applicant did not pass the character test, a holistic assessment of the relevant considerations favoured granting the visa. The court found that the Applicant's strong links to the Australian community, particularly his daughter, son-in-law, and infant granddaughter, weighed heavily against refusal. This was balanced against the seriousness of his past offending, which involved participation in a failed coup attempt 40 years prior. However, the court noted the Applicant's exemplary conduct in the intervening years, his long marriage, successful career, and minimal risk of re-offending. Ultimately, the court concluded that the cumulative weight of the considerations favouring the Applicant, particularly his family ties in Australia, outweighed the factors supporting refusal.

The court set aside the original decision to refuse the visa and substituted a decision to grant the visa.

Orders

Orders of the court

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Background

Background to the litigation

To my mind, it is useful to examine two aspects of this matter separately to best understand the nature and seriousness of the Applicant’s conduct. First, I will consider the Applicant’s state of mind and level of involvement in the time leading up to the attempted coup. Second, I will consider the Applicant’s actions while the coup was underway.Background to the Applicant’s recruitment and his state of mind when joining the coup The Applicant first enlisted for national service in South Africa in 1972. This involved a compulsory year of national service, then applicable to male South African citizens. After that year of national service, he went to university for four years. Upon completion of his university studies, he returned to the military in or about December 1976. He remained in the military for approximately two years and left it in 1978.[16] In that year, he met his wife and they married in July 1978.[17][16] See Transcript, 23.[17] Ibid. The Applicant therefore spent approximately two-three years in civilian life trying to establish a civilian career. He was then contacted in 1981 and presented with plans of the proposed coup operation. According to his evidence in cross-examination, the Applicant “was told there was a job for us to do where they needed our skills and that the military, in the form of the army, was behind us, and that the Bureau of State Security knew all about it, and that the CIA was actually behind it.”[18][18] Transcript, 23, lines 44–46; 24, lines 1–2. In cross-examination, the Applicant confirmed that he was aware that the coup involved the overthrow of a foreign government. He said he was not clear about the size and scope of the operation (at least in terms of number of mercenary participants) until he arrived in the Seychelles. It suffices to say that he “[…] knew that there would be quite a substantial number of us.”[19] [19] Transcript, 24, line 20. He confirmed in cross-examination that at the time of his recruitment he thought that the operation was a very serious one that carried potentially very important political consequences. He also explained that the operation was intended to be non-violent (though, obviously, the possibility of violence entered the recruits’ minds):“Mr Dekker: Well you see - can I just say this? That the whole plan was to have a bloodless coup. That was a given. And being disciplined soldiers, we - I know that there would not be unnecessary bloodshed.”[20][20] Transcript, 24, lines 26–30. The Applicant was asked to confirm his awareness that the coup operation could have resulted in the loss of his own life and the lives of others. He said: “[y]es, I was. I was a soldier, remember.”[21] He said that he was aware that this coup operation could have “potentially” caused harm to other people.[22][21] Transcript, 29, lines 39–40.[22] Transcript, 29, line 44. The Applicant was then asked how he became motivated to join the coup. He said there was a prevailing mentality in South Africa at that time about actual or potential threats from hostile neighbouring countries. When asked to explain his understanding of the goal of the operation, he said this: “Ms Liang:[23] Mr Dekker, did you believe in the goals of the operation?Mr Dekker: In the goal of the operation.Ms Liang: The outcome that they wanted to achieve. Do you believe in that?Mr Dekker: Yes. And let me explain why. I said this in my various statements, that in South Africa in those days, we had a mentality foisted upon us of the total onslaught by communists and socialists. And that’s how we grew up. When I was in the army, that was reinforced in the Reconnaissance Commando and the Special Forces. And when we were told that the guys in charge of the Seychelles at that time - the government - were leaning towards the Russian way of doing things - the communism and the socialism - you know, that said, well, it was a legitimate job to do, and we must get rid of them. Plus, the fact that the CIA were there because they wanted that satellite tracking station on Mahé, the main island. And They wanted that safeguarded against possible Russian - you know - being taken by the Russians. So, all that together made it, for me at least, a legitimate (indistinct). And the aim of overthrowing that government and putting a more Western-orientated government in charge, seemed to me to be reasonable.Ms Liang: Mr Dekker, you said before that the intention was for there to be a bloodless coup. But I want to ask you, what was the final goal of the operation? Was it to capture the president, to assassinate him? Is that something you could comment upon?Mr Dekker: No, I can’t. I was not one of the officers, or the main planners, of that coup. And if you read the court case, then you will see that my name is noted nowhere.”[24][23] Ms Jiadi Liang, Senior Associate, Clayton Utz, legal representative for the Respondent.[24] Transcript, 25, lines 4–28.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The weight allocable to the Other Considerations relevant to the present matter can be summarised as follows:(a)international non-refoulement obligations: not relevant; (b)extent of impediments if removed: not relevant;(c)impact on victims: not relevant; and (d)links to the Australian community: strong weight in favour of the Applicant.CONCLUSIONGeneral observations This application involves a refusal to grant a short stay visa for this South African-based Applicant to come to Australia. Forty years ago, the visa Applicant was involved in a failed operation that he thought was being conducted on behalf of the South African government. He was in no way an organiser of that operation. In the intervening 40 years, the Applicant has never travelled to or spent any time in Australia. The visa Applicant is now retired, and wants to visit his biological daughter and his son-in-law who both settled in Australia in 2016. The daughter and son-in-law now have a one year old child who is the biological granddaughter of the Applicant. The Applicant has been separated from his daughter and son-in-law for around four years. He has never seen his one year old granddaughter in person because of the COVID-19 pandemic. He has led an exemplary and blameless family life with a marriage of over 40 years that bore three children. He has led a similarly exemplary corporate career that saw him rise to high-ranking managerial and board positions in an international paper and pulp manufacturing company, at which he spent his entire working career. Across that corporate career, he had occasion to travel to numerous other countries with no issue ever being raised about his singular offending episode in 1981. He represents a miniscule risk of re-offending and otherwise breaching Australian laws in the event he is granted the short-stay visa to come here. Should the Tribunal exercise its power to refuse to grant the Applicant’s visa? As I have noted and found above, the Applicant does not pass the character test. Having regard to the Direction and to the totality of the evidence before me, I am of the view that this Tribunal should not exercise the power conferred by s 501(1) to refuse to grant the subject visa to the Applicant. In reaching that conclusion, I have had regard to the considerations referred to in the Direction. I find as follows: ·Primary Consideration 1 weighs moderately in favour of refusal;·Primary Consideration 2 is not relevant;·Primary Consideration 3 weighs strongly against refusal;·Primary Consideration 4 weighs moderately in favour of refusal; and ·I have outlined the weight attributable to the Other Considerations. I consider that the totality of the strong weight I have attributed to Other Consideration 4, when combined with the strong weight I have attributed to Primary Consideration 3, outweighs the weight I have allocated to the remaining Primary Considerations;·A holistic view of the considerations in the Direction therefore favours the grant of the visa sought by the Applicant.

Ratio Decidendi

Legal Principle Established

I am therefore of the view (and I find) that the cumulative best interests of Grandchild E in Australia weigh strongly in favour of the Tribunal not exercising the discretion to refuse the requested short-stay visa sought by this Applicant. I qualify this finding by saying that the weight attributable to this Primary Consideration 3 does not on its own, determine this Application in favour of the Applicant.PRIMARY CONSIDERATION 4: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[82] The Direction further explains:“This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.4(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case”[83][82] Direction, paragraph 8.4(3).[83] Direction, paragraph 8.4(4). Paragraph 8.4(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185. In assessing the weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides two separate propositions which are worth examining separately. The first is that the Australian community expects non-citizens to obey Australian laws while in Australia. The second, proposition is that where a non-citizen has engaged in serious conduct in breach of the community’s expectations, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia. In addition to the guidance provided by paragraph 8.4(1) of the Direction, paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:(a)acts of family violence; or(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or(f)worker exploitation.