QQYJ and Minister for Home Affairs (Migration)

Case [2019] AATA 770

QQYJ and Minister for Home Affairs (Migration) [2019] AATA 770 (29 April 2019)

Division:GENERAL DIVISION

File Number:           2019/0633

Re:QQYJ  

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Member T Eteuati

Date:29 April 2019

Place:Brisbane

The Tribunal sets aside the decision under review and remits the matter for reconsideration with the direction that the discretion in section 501(1) of the Act, to refuse to grant the Applicant a Bridging visa, not be exercised.

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Member T Eteuati

Catchwords

MIGRATION – refusal of application for Bridging visa under section 501(1) – Applicant failed to pass the character test under section 501(6)(d)(i) - whether the discretion to refuse to grant the Bridging visa should be exercised - application of Direction No. 79 –decision under review set aside and remitted for reconsideration

Legislation

Migration Act 1958 (Cth)

Cases

Afu v Minister for Home Affairs [2018] FCA 1311

CCYW and Minister for Home Affairs (Migration) [2019] AATA 241

Coker v Minister for Immigration and Border Protection[2017] FCA 929

DKXY v Minister for Home Affairs [2019] FCA 495

Doan and Minister for Home Affairs (Migration) [2019] AATA 169

Frazer (Migration) [2018] AATA 593

FYBR v Minister for Home Affairs [2019] FCA 500

Hussain Hazara and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 159

Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160

Oluwafemi v Minister for Home Affairs [2018] FCA 1389

QKVH and Minister for Home Affairs (Migration) [2018] AATA 1855

Re Lavery and Registrar, Supreme Court of Queensland and Ors (No. 2)(1996) 23 AAR 52

Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970

Subasinghe and Minister for Home Affairs (Migration) [2019] AATA 751

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

TGXY and Minister for Home Affairs (Migration) [2019] AATA 757

Toki and Minister for Home Affairs (Migration) [2019] AATA 742

Uelese v Minister for Immigration and Border Protection [2015] HCA 15

Uelese v Minister for Immigration and Border Protection [2016] FCA 348

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Secondary Materials

Direction No 65 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

Explanatory Memorandum Migration Legislation Amendment (Strengthening of Provisions Related to Character and Conduct Bill 1998 (No.2)

Explanatory Memorandum Migration Amendment (Character and General Visa Cancellation) Bill 2014

REASONS FOR DECISION

Member T Eteuati

29 April 2019

BACKGROUND

  1. This is an application by QQYJ (“the Applicant”) for review of a decision made by the delegate of the Minister for Home Affairs (“the Minister”) on 1 February 2019 to refuse to grant the Applicant a Bridging E (Class WE) visa, under section 501(1) of the Migration Act 1958 (Cth) (“the Act”).[1]

    [1] G Documents, G2, pages 9 - 19, Notice of visa refusal under section 501(1) of the Migration Act 1958, dated 4…

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Details
AGLC
QQYJ and Minister for Home Affairs (Migration) [2019] AATA 770
Case
[2019] AATA 770
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of QQYJ and the Minister for Home Affairs concerning an application for a Bridging visa. The applicant had failed to pass the character test under section 501(6)(d)(i) of the Migration Act 1958 (Cth), leading to the refusal of their visa application by the Minister's delegate. The central dispute revolved around whether the discretion to refuse the Bridging visa should have been exercised, particularly in light of Direction No. 79.

The legal issues before the Tribunal included whether the Minister's delegate had erred in refusing the Bridging visa application and, more broadly, how the discretion under section 501(1) of the Act should be exercised in this specific case. The Tribunal also considered the permissibility of the Respondent seeking to rely on an alternative ground, paragraph 501(6)(c) of the Act, before the Tribunal to support the argument that the applicant did not pass the character test, a practice generally permitted.

The Tribunal reasoned that while the Minister's delegate relied solely on subparagraph 501(6)(d)(i) for the character test refusal, the Respondent was entitled to advance an alternative basis before the Tribunal. The Tribunal's primary consideration was the protection of the Australian community from criminal or serious conduct, as outlined in Direction No. 79. This involved assessing the nature and seriousness of the applicant's conduct, including a conviction for possessing a dangerous drug for which no conviction was recorded but a fine was imposed. The Tribunal noted that the applicant's conduct occurred while he was an unlawful non-citizen and that he had subsequently absconded from immigration detention. However, the Tribunal ultimately found that the Minister's delegate's decision to refuse the Bridging visa should be set aside.

Consequently, the Tribunal ordered that the decision under review be set aside and remitted for reconsideration. The Tribunal directed that the discretion in section 501(1) of the Act to refuse to grant the applicant a Bridging visa not be exercised, deeming this the preferable outcome in the circumstances.

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 Minister’s delegate relied solely on subparagraph 501(6)(d)(i) of the Act in finding that the Applicant did not pass the character test. However, before the Tribunal, the Respondent also sought to rely on paragraph 501(6)(c) of the Act to support an argument that the Applicant did not pass the character test. Such reliance on an alternative ground before the Tribunal is generally permissible: see the decisions of Deputy President Forgie in Hussain Hazara and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 159 and Re Lavery and Registrar, Supreme Court of Queensland and Ors (No. 2)(1996) 23 AAR 52 at [56]. Summary of evidence of witnessesThe Applicant The Applicant stated that he was born in in Fiji and lived there until he arrived in Australia on 15 December 2014. He said that in 2014 he had been granted a visa to attend a rugby tournament in Australia. He said he missed the tournament but travelled to Australia nonetheless as he wanted to spend his school holidays in Australia. In addition, the Applicant said that he needed to leave Fiji as he feared persecution from his uncle and police in Fiji. The Applicant said that he also now feared persecution from his community in Fiji and the people of his village as rugby players from his village had been denied visas because the Applicant overstayed his visa in Australia. For the purposes of this decision, the Applicant’s specific protection claims are not relevant. The Applicant said that when he arrived in Australia he travelled to Mareeba in Far North Queensland. The Applicant said that he began a relationship with his de facto partner in early 2015. He said that they had met in January 2015 as his partner was the property manager for the house in which the Applicant was living. Around the same time, in January 2015, the Applicant’s visa expired and he became an unlawful non-citizen. He said that he remained in Australia without a visa as he feared that he would be harmed or killed if he returned to Fiji. The couple’s child was born on 16 May 2017. The Applicant’s father passed away in Fiji on 20 July 2017. The Applicant said that on 12 March 2018 he attended the Mareeba Magistrate’s Court in relation to the charge of possessing a dangerous drug on 7 January 2017. No conviction was recorded and he was fined $300. The Applicant said that the offence related to him possessing a small amount of marijuana for personal use. He said he began smoking marijuana to deal with the stress and anxiety relating to his fears of returning to Fiji, that his father had been taken to hospital in Fiji and that his partner was pregnant with their first child. The Applicant said that after he was dealt with by the court on 12 March 2018 he was taken into immigration detention by two Serco officers. He said that he was staying with the Serco officers at a hotel in Cairns in transit to an Immigration Detention Centre. He said that he took a shower and after the shower he found that the Serco officers were nowhere to be seen. The Applicant said that the door of the hotel room was open and he thought the Serco officers had gone home. He said that he walked out of the hotel room. The Applicant said that he did so because he was worried about his partner and young daughter being by themselves; was worried that his partner would suffer from an anxiety attack not knowing that the Applicant had been detained; and that he feared that he would be removed to Fiji where he said that he would face persecution.

Decision

Reasons for decision

Therefore, the Tribunal finds that the Minister’s delegate’s decision, to refuse the Applicant’s application for a Bridging visa, should be set aside and that the matter be remitted for reconsideration with the direction that the discretion in section 501(1) of the Act, to refuse to grant the Applicant a Bridging visa, not be exercised. The Tribunal considers that this is the preferable decision in this case.DECISION The Tribunal sets aside the decision under review and remits the matter for reconsideration with the direction that the discretion in section 501(1) of the Act, to refuse to grant the Applicant a Bridging visa, not be exercised.

Ratio Decidendi

Legal Principle Established

These proceedings will not determine whether the Applicant is allowed to enter or to remain in Australia. Rather, the outcome of these proceedings will determine whether the Applicant can await the ultimate outcome of proceedings relating to his Protection visa application with his family in the community, or whether he must await the ultimate outcome of proceedings relating to his Protection visa application in detention.PRIMARY CONSIDERATION A: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 11.1(1) of the Direction provides that there is a low tolerance for visa applicants who previously engaged in criminal or other serious conduct. Paragraph 11.1(1) of the Direction also provides that decision-makers should 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 11.1.1(1) of the Direction specifies that decision-makers must have regard to a number of 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) 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; 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 under section 197A of the Act;e) The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;f) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;g) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;h) The cumulative effect of repeated offending;i) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;j) Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.