QKVH and Minister for Home Affairs (Migration) [2018] AATA 1855 (20 June 2018)
Division:General Division
File Number: 2016/5428
Re:QKVH
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Date:20 June 2018
Place:Melbourne
The Tribunal decides to affirm a decision of the respondent dated 21 September 2016 refusing to grant a Partner (Temporary) (Class UK) visa to the applicant under s 501 of the Migration Act 1958.
.................[sgd]..................................................
S A FORGIE
Deputy President
MIGRATION – refusal to grant visa – risk of applicant engaging in criminal conduct – failure to pass character test – exercise of discretion – decision affirmed.
Legislation
Acts Interpretation Act 1901
Legislation Act 2003
Migration Act 1958 ss 5, 29, 30, 31, 52, 499, 500, 501, 501CA
Migration Regulations 1994 r 1.03
Cases
Brennan v Comcare [1994] FCA 1147; (1994) 50 FCR 555; 122 ALR 615; 19 AAR 542
Damjanovic & Sons Pty Ltd v The Commonwealth [1968] HCA 42; (1968) 117 CLR 390
Dolan and Australian and Overseas Telecommunications Corporation [1993] FCA 202; (1993) 42 FCR 206; 31 ALD 510
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299
Minister for Immigration v Baker (1997) 73 FCR 187; 153 ALR 463; 45 ALD 136;
24 AAR 457
Minister for Immigration v Jia Legeng [2001] HCA 17; 205 CLR 507; 75 ALJR 679;
65 ALD 1; 178 ALR 421
Ogden Industries Pty Ltd v Lucas [1970] AC 113; [1969] 1 All ER 121
Re Beckner and Minister for Immigration, Local Government and Ethnic Affairs
[1991] FCA 264; (1991) 30 FCR 49
Re CBYQ and Minister for Immigration and Border Protection [2018] AATA 91
Re KQHR and Minister for Immigration and Border Protection [2018] AATA 684
Re Maikantis and Minister for Immigration and Border Protection [2018] AATA 40
Re Visa Cancellation Applicant and Minister for Immigration and Citizenship
[2011] AATA 690
Secretary, Department of Social Security v Ekis (1998) 85 FCR 382; 52 ALD 246;
28 AAR 36
Uelese v Minister for Immigration and Border Protection [2016] FCA 348; (2016)
248 FCR 296
Williams v Minister for Immigration and Citizenship [2013] FCA 702; (2013) 136 ALD 299
YNQY and Minister for Immigration and Border Protection [2017] FCA 1466
Other Material
Chambers 21st Century Dictionary, 1999, reprinted 2004
Direction Number 65
REASONS FOR DECISION
Deputy President S A Forgie
A differently constituted Tribunal affirmed a decision made by a delegate of the then Minister for Immigration and Border Protection (Minister) on 21 September 2016 refusing to grant a Partner (Temporary) (Class UK) visa to QKVH.[1] On 28 August 2017, the Federal Court issued a writ of certiorari directed to the Tribunal quashing its decision and issued a writ of mandamus requiring it to determine the application made to it for review of the decision according to law. The Federal Court did so by…
Continue reading QKVH v Minister for Home Affairs
Sign in free to access the full text
- AGLC
- QKVH v Minister for Home Affairs [2018] AATA 1855
- Case
- [2018] AATA 1855
- Decision Date
CaseChat Overview and Summary
The Tribunal was required to determine whether QKVH met the character requirements for a visa, specifically in light of his criminal conduct and his failure to comply with the terms of his previous student visa. This involved assessing whether his circumstances warranted an exception to the general policy that non-citizens entering or remaining in Australia are expected to be law-abiding.
Deputy President Forgie P applied the principles outlined in Direction No. 65, which guide the assessment of visa applications where character is an issue. The Tribunal reasoned that Australia expects non-citizens to obey its laws, and QKVH had failed to do so over a significant period, both in relation to criminal laws and migration laws. The Tribunal noted QKVH's convictions and his continued presence in Australia after his visa expired, despite his obligation to update his address. Furthermore, his failure to study as required by his student visa was also considered a breach of his visa conditions. While acknowledging that QKVH was young and may have been distracted by personal circumstances, the Tribunal emphasised that compliance with visa conditions and Australian laws is expected. The Tribunal also considered the potential impact on minor children and immediate family members, although this aspect was not elaborated upon in the provided text.
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
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
The Principles set out in paragraph 6.3 are based on the notions that:(1)Entry to and presence in Australia are privileges conferred on persons in the expectation that they are, and have been, law-abiding, will respect its institutions and will not cause or threaten harm to individuals or the Australian community: paragraph 6.3(1);(2)Australia has a low tolerance or any criminal or other serious misconduct but the level of its tolerance in any particular case will be determined by reference to matters such as the nature of the offending or misconduct, the time that a person has been in Australia and the contribution made in the past to the Australian community: paragraphs 6.3(3)-(6); and(3)Regard must be had of the consequences of a visa refusal or cancellation on minor children and other immediate family members: paragraph 6.3(7).C.2 Consideration: QKVH’s circumstances As Direction No. 65 states, the Australian community expects non-citizens to obey its laws while they are in Australia. QKVH has not done that and he has not done that consistently over approximately a two year period. He has not done that either in relation to its criminal laws or to its migration laws. I have set out the offences of which he has convicted and the table also reflects that he remained in Australia after the expiration of his visa. Even though I accept that QKVH was homeless and would not have received notice of the cancellation, he had an obligation to advise the Minister’s Department of his address if were to change it for more than 14 days.[89] He did not do so. Furthermore, as the holder of a Student (Temporary) (Class TU) visa, he had an obligation to be aware that its terms required him to study. He ceased studying very shortly after he started his degree course at Deakin University because he met Valentina in August 2008 and his Diploma from MIBT was awarded in March 2009. QKVH had some 2½ years to contemplate his visa status before the Department cancelled his student visa but he did nothing to regularise his situation. I find that he and Valentina considered marrying and it is arguable that he could have taken that opportunity to apply for a partner visa. Whether he could have, there is no evidence that he considered the matter. [89] Migration Act; s 52(3B) Australia welcomes students to its shores and to its universities, colleges and schools but the Australian community expects that they will comply with the law and with the obligations imposed by the conditions attached to their visas. A student visa is issued to enable students to attend for the specific purpose of studying and for fixed periods. The restrictions can be limiting for a young 19 year old, as QKVH was, who has just left the more protected environment of school and family and wants to enjoy the freedoms of a new country and a new experience. At the same time, those restrictions must be observed because, although the Australian community welcomes them and wants them to enjoy their time in Australia, it also expects them to comply with the law. And the great majority of them do comply with the law. They are young and it is to be expected that some will meet their life partner while they are here and yet they do not distract themselves from their studies and start offending against local laws.