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

Case [2024] AATA 2163

PYYV and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 2163 (1 July 2024)

Division:GENERAL DIVISION

File Number:          2024/2247

Re:PYYV

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:1 July 2024

Place:Hobart

Pursuant to s 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal decides to affirm the decision under review.

............................[signed]..................................

Senior Member D. J. Morris

Catchwords

MIGRATION – applicant is a citizen of the Republic of India – applicant held skilled visa – visa cancelled owing to substantial criminal record – sexually based offences involving a child – applicant made representations to delegate of Minister – delegate refused to revoke mandatory cancellation – request for review by Tribunal – new ministerial direction – primary considerations – protection of Australian community from criminal or other serious conduct – strength, nature and duration  of ties to Australia – expectations of Australian community – legal consequences of decision – extent of impediments if removed – low risk of reoffending is found but very serious nature of offending and recklessness of offending means even low risk is unacceptable - decision under review is affirmed

Legislation

Administrative Appeals Tribunal 1975 (Cth)
Community Protection (Offender Reporting) Act 2005 (Tas)

Criminal Code Act 1934 (Tas)
Migration Act 1958 (Cth)
Sentencing Act 1997 (Tas)

Victims of Crime Compensation Act 1994 (Tas)

Cases

FYBR v Minister for Home Affairs (2019) 272 FCR 454
Ismail and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 2
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354
Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441

Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197

Secondary Materials

Migration Act 1958 – direction under s 499 – Direction No. 110 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (made 7 June 2024/commenced 21 June 2024)

The Concise Oxford Dictionary; Fourth Ed. 1951. Oxford University Press; London

REASONS FOR DECISION

Senior Member D. J. Morris

1 July 2024

  1. The Tribunal has made an order under s 35 of the Administrative Appeals Tribunal Act 1975 (‘the AAT Act’) prohibiting the publication of the Applicant’s name in these proceedings. The reason is because the principal offending which will be referred to relates to a minor. The identity of other individuals in these reasons will be anonymised. The Applicant will be known by the anonym ‘PYYV.’

  2. PYYV was born in the Republic of India in July 1990, and is a citizen of that country. He is aged 33. He first arrived in Australia in July 2014 as the holder of a student visa. He was granted a Class SN Subclass 190 Skilled Nominated visa on 21 February 2022 and held that visa until it…

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Details
AGLC
PYYV and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 2163
Case
[2024] AATA 2163
Decision Date

CaseChat Overview and Summary

This matter concerned an application by PYYV, a citizen of the Republic of India, for review of the mandatory cancellation of his skilled visa. The visa had been cancelled due to PYYV possessing a substantial criminal record, stemming from sexually based offences involving a child. PYYV had made representations to the Minister's delegate seeking to revoke the cancellation, which were refused. The Administrative Appeals Tribunal was tasked with reviewing this refusal.

The Tribunal was required to determine whether there was "another reason" to revoke the mandatory visa cancellation, considering the criteria set out in the Ministerial Direction. This involved weighing various primary considerations, including the protection of the Australian community from criminal or other serious conduct, the strength, nature, and duration of ties to Australia, the expectations of the Australian community, and the legal consequences of the decision. The Tribunal also had to consider the extent of impediments to removal from Australia and the risk of reoffending.

In its reasoning, the Tribunal applied the principles outlined in the new Ministerial Direction, which generally mandates greater weight be given to the primary consideration of protecting the Australian community compared to other primary considerations. While acknowledging that the applicant presented a low risk of reoffending, the Tribunal found that the very serious nature and recklessness of his offending meant that even a low risk was unacceptable. The Tribunal also noted that the Direction, while providing guidance on the weighting of considerations, still leaves the ultimate decision to the individual decision-maker, and that an "other consideration" is not incapable of outweighing a primary consideration. Ultimately, the Tribunal concluded that the discretion to revoke the cancellation was not enlivened, as there was no "another reason" to do so.

The Tribunal decided to affirm the decision of 5 April 2024 not to revoke the mandatory cancellation of the Applicant’s visa.

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

The Tribunal proceeds on that understanding to below refer to all the primary and other considerations in the Direction and, where relevant, has assigned weight to particular considerations according to the circumstances of the Applicant.SUMMARY OF ORAL EVIDENCEThe Applicant The Applicant adopted his statement of 23 May 2024. He said he first came to Australia in 2014 to attend the University of Tasmania. He has since graduated with a degree from that University. He then was granted a two-year postgraduate visa, subclass 485, and subsequently was nominated by the State for a permanent visa. He first was awarded a bridging visa and then the visa which is the subject of the cancellation being reviewed. Before coming to Australia, PYYV had undertaken a diploma in food production in India which was assessed by the qualifications authorities in Australia. In terms of travel, PYYV said in 2015 he travelled to New Zealand to see an ex-girlfriend who was living there, but was only out of Australia for about 20 days. After graduating he worked in an uncle’s restaurant in Tasmania and then worked part-time, and later full-time, as a truck driver, driving a milk tanker. He had been working in the same job for about 15 months before he was incarcerated. At the time of the index offending, PYYV said he was working for a trucking company. Another driver had a crash, so management was looking at footage of the trucks. He was identified using his mobile phone while driving. He was stood down and told they would consider his future employment on the basis of this infraction, because that was company policy. He was told to go home. He did so, and told some friends. Two friends came to his house. Together with a housemate, the four went to a bottle shop and got a carton of beers and food. PYYV estimated to the Tribunal that he had four or five cans of beer that evening. PYYV said that he had occasionally used the Grindr dating application, he estimated two or three times a month for the previous six months, for random ‘hook-ups.’ He said he used it on weekends because he worked six days a week. He said that he had met married couples, males and females through Grindr. He said couples had come to his house for ‘threesomes.’ He said he had never met anyone who was not at least 18 years old; he estimated the couples he met were generally in their 30s. PYYV said that a person does not have to share personal details on Grindr and that the application is famous for sexual hook-ups. He agreed that the website is generally for gay males and bisexual people. On the night of the offending PYYV said one of his friends left, his housemate went to bed in his room, and another friend went to sleep on the couch. The Applicant went to bed. He said he was stressed about the possibility of losing his job and could not sleep, so he watched a movie on his mobile phone. The victim (who will be called ‘TC’) had earlier that day sent him intimate photographs of herself and said she was ‘looking for fun’ which he took to mean she wanted to catch up for sex. He also sent her naked photographs.

Decision

Reasons for decision

The conclusion of the Tribunal therefore is that the discretion provided in s 501CA(4)(b)(ii) of the Act is not enlivened. Therefore, there is not ‘another reason’ to revoke the mandatory cancellation of the visa. The consequence of that finding is that the reviewable decision will be affirmed.DECISION The Tribunal decides to affirm the decision of 5 April 2024 not to revoke the mandatory cancellation of the Applicant’s visa.

Ratio Decidendi

Legal Principle Established

Importantly, the new Direction says, at paragraph 7(2):The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.(emphasis added) The emboldened words are new in this Direction. Applying the ordinary dictionary definition of the words “generally” and “otherwise,” the Tribunal considers that the logical way the new Direction should be interpreted is to apply a hierarchy in the way it should generally assign weight within the primary considerations. Having said that, it is important to note that the Direction still notes, as its predecessor did, at paragraph 7(3), that one or more primary considerations may outweigh other primary considerations. In addition, the Full Court of the Federal Court of Australia said the following about the use of the qualifying word ‘generally’ in an earlier version of the Direction, in Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461 at [57]: Notwithstanding these features, as the Minister submitted, the terms of Direction No 55 do not purport to direct a decision maker as to the outcome of the s 501(2) residual discretion in relation to any given individual, or categories of individuals. Further, by the use of qualifying words such as “generally” (for example, in cl 8(4) that primary considerations “should generally be given greater weight than the other considerations”), the weighing process in each case is in substance left, as it must be, to the individual decision maker exercising the power under s 501. In addition, the Full Court also held in Minister for Home Affairs v HSKJ [2018] FCAFC 217 at [35] that the Tribunal would err if it concluded that an ‘other consideration’ in the Direction was incapable of outweighing a primary consideration. So, the pathway set down by the new Principle 2, and the new wording of paragraph 7(2), that the Tribunal has decided it is logical to follow is this: as a general rule the primary consideration concerning the protection of the Australian community carries greater weight than the other four primary considerations, and, apart from that, the other four primary considerations should be given greater weight than the three ‘other’ considerations which are set out at paragraph 9(1) of the Direction. The Tribunal proceeds on that understanding to below refer to all the primary and other considerations in the Direction and, where relevant, has assigned weight to particular considerations according to the circumstances of the Applicant.SUMMARY OF ORAL EVIDENCEThe Applicant The Applicant adopted his statement of 23 May 2024. He said he first came to Australia in 2014 to attend the University of Tasmania. He has since graduated with a degree from that University. He then was granted a two-year postgraduate visa, subclass 485, and subsequently was nominated by the State for a permanent visa. He first was awarded a bridging visa and then the visa which is the subject of the cancellation being reviewed.