QSBL and Minister for Home Affairs (Migration) - [2018] AATA 2074

QSBL and Minister for Home Affairs (Migration) [2018] AATA 2074 (2 July 2018)
Division:GENERAL DIVISION
File Number:2018/1996
Re:QSBL
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans
Date:2 July 2018
Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated 6 April 2018 not to revoke the mandatory cancellation of the Applicant’s visa pursuant to
s 501CA(4) of the Migration Act 1958 (Cth), is affirmed.
...................[sgd]....................................................
Senior Member Dr M Evans
CATCHWORDS
Migration – decision not to revoke mandatory cancellation of visa – two-day rule – character test – substantial criminal record – Ministerial Direction no. 65 – primary and other considerations – international non-refoulement obligations – protection of the Australian community – best interests of minor children – step-children – expectations of the Australian community – nature and seriousness of criminal offending – risk of engaging in future criminal conduct – strength, nature and duration of ties to Australia – extent of impediments if returned to Sudan – mental health – decision under review affirmed
LEGISLATION
Migration Act 1958(Cth) – s 195A, s 499, s 499(1), s 499(2A), s 500, s 500(1)(ba),
s 500(6B), 500(6H), s 500(6J), s 500(6L), s 501, s 501(1), s501(3A), s 501(6), s 501(7),
s 501(7A), s 501CA, s 501CA(3), s 501CA(4), s 501E(2), s 501G(1)
Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (No. 2) (Cth)
CASES
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513; FCAFC 83
BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456; FCAFC 96
Do and Minister for Immigration and Border Protection [2016] AATA 390
Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378
HSKJ and Minister for Immigration and Border Protection [2017] AATA 1802
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
XFKR and Minister for Immigration and Border Protection [2017] AATA 2385
SECONDARY MATERIALS
Direction No. 65 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA – paras 6.1, 6.2, 6.3, 7, 8, 13, 14, Part C
REASONS FOR DECISION
Senior Member Dr M Evans
2 July 2018
BACKGROUND

The Applicant is a 36 year old man who is a citizen of Sudan. He left Sudan when he was 13 years of age due to war.
He arrived in Australia in 1998 as a 17 year old (Exhibit R1) (G4, page 15). He was granted a Class BA Subclass 202 – Global Special Humanitarian visa (Visa) on 16 May 1998.
The Applicant was recently in a relationship with a woman who is an Australian citizen. However, the relationship ended when the Applicant commenced a term of imprisonment in January 2017 for domestic violence offences against her. She has…

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: [2018] AATA 2074
Decision Date: 2 July 2018

CaseChat Overview and Summary

This matter concerned an application for review of a delegate's decision not to revoke the mandatory cancellation of the applicant's visa. The applicant's visa was cancelled on 15 February 2017 because he did not pass the character test, having a substantial criminal record. This record included convictions for unlawfully assaulting with circumstances of aggravation in 2010, and more recently, for being armed or pretending to be armed in a way that may cause fear and unlawfully assaulting with bodily harm with circumstances of aggravation in 2017, which were domestic violence offences. The applicant made representations to the delegate, highlighting his long residence in Australia since 1998, his departure from Sudan due to war, his family ties in Australia, a diagnosed mental illness, and his relationship with an Australian citizen and two minor step-children who regarded him as a father. Despite these representations, the delegate decided not to revoke the visa cancellation. The applicant subsequently applied to the Administrative Appeals Tribunal for a review of this decision.

The Tribunal was required to determine two primary issues. Firstly, whether the applicant passed the character test as defined by section 501(6) of the *Migration Act 1958* (Cth). Secondly, if the applicant did not pass the character test, whether there was another reason why the mandatory cancellation decision should be revoked, having regard to the primary and other considerations set out in Ministerial Direction No. 65. These considerations included the protection of the Australian community, the best interests of minor children, international non-refoulement obligations, the expectations of the Australian community, the nature and seriousness of the criminal offending, the risk of future criminal conduct, the strength and duration of ties to Australia, impediments to return to Sudan, and the applicant's mental health.

The Tribunal considered the applicant's criminal history, noting the seriousness of the domestic violence offences. It also weighed the applicant's personal circumstances, including his long period of residence in Australia, his family ties, and his mental health issues. The Tribunal's reasoning focused on balancing these factors against the need to protect the Australian community and uphold the integrity of the migration system. The Tribunal ultimately affirmed the delegate's decision not to revoke the mandatory cancellation of the applicant's visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

After considering these representations, on 6 April 2018 a delegate of the Respondent decided not to revoke the mandatory cancellation of the Applicant’s visa pursuant to s 501CA(4) of the Migration Act (the Reviewable Decision) (Exhibit R1) (G3, page 13). The Reviewable Decision was communicated to the Applicant in a letter from the Department of Home Affairs dated 10 April 2018 which was hand-delivered to the Applicant, in immigration detention, on the same date (Exhibit R1) (G2, page 10). On 16 April 2018, the Applicant lodged an application for review of the Reviewable Decision in the General Division of the Administrative Appeals Tribunal (the Tribunal) (Exhibit R1) (G1, page 1). ISSUES The issues for determination by this Tribunal are whether:(a)the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the mandatory cancellation decision (that is, the Reviewable Decision) should be revoked (see s 501CA(4) of the Migration Act), having regard to the primary and other considerations in Ministerial Direction no. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction No. 65). JURISDICTION This application is made pursuant to s 500(1)(ba) of the Migration Act. This section allows applications to be made to the Tribunal for review of decisions of a delegate of the Respondent not to revoke a decision to cancel a visa. The Reviewable Decision of 6 April 2018 was communicated to the Applicant on 10 April 2018, and as noted above, he lodged his application for review on 16 April 2018. The Applicant is in immigration detention, and is in the migration zone. He therefore lodged his application for review by the Tribunal within the nine day period after he received the decision in accordance with s 501G(1) and s 500(6B) of the Migration Act. The Tribunal is therefore satisfied that the application was lodged within time, and that the Tribunal has jurisdiction to review the Reviewable Decision.MATERIAL BEFORE THE TRIBUNAL The application was heard by the Tribunal on 21 June 2018. The Applicant appeared by video link from the detention centre. He was self-represented. The Applicant spoke English well and did not require an interpreter. The Respondent was represented by Mr Arran Gerrard from the Australian Government Solicitor who appeared in person. The Applicant, as well as his former partner, gave evidence and was cross-examined. The Tribunal had the following documents before it:(a)handwritten statement from the Applicant, undated, but filed with the Tribunal on 11 June 2018 (Exhibit A1);(b)handwritten statement from the Applicant’s former partner dated 18 June 2018 (Exhibit A2); (c)the s 501 documents (G documents) from G1 to G28 (Exhibit R1);(d)the Supplementary s 501 documents (Supplementary G Documents) from SG1 to SG28 (Exhibit R2); and(e)the Statement of Facts, Issues and Contentions of the Respondent dated 15 May 2018 (Exhibit R3).

Ratio Decidendi

Legal Principle Established

The Applicant signed, on 31 January 2014, the following acknowledgment of receipt of the decision of 29 January 2014 which states:I…acknowledge that I have received the Notice of decision not to cancel a visa under subsection 501(2) of the Migration Act 1958. I understand that I can again be considered for refusal or cancellation of any visa granted to me if further information of relevance comes to the attention of the Department at any time in the future and that if this happens, my past conduct and previous relevant information can also be reconsidered (Exhibit R1) (G23, page 90). (Original emphasis.) On 15 February 2017, the Applicant’s Visa was cancelled on the basis that he did not pass the character test under s 501(3A) of the Migration Act (Exhibit R1) (G25, page 105). This was because the Applicant had a “substantial criminal record” within the meaning of s 501(6)(a) of the Migration Act (on the basis of s 501(7)(c) of the Migration Act) because he had been sentenced by the Perth Magistrate’s Court on 20 August 2010 to a suspended term of imprisonment of 12 months for “unlawfully assaulted with circumstances of aggravation” (Exhibit R1) (G25, page 105). The letter from the Department of Immigration and Border Protection dated 15 February 2017, which advised the Applicant of his visa cancellation, also generally noted the sentencing remarks of the Magistrate but did not elaborate on what those remarks were (Exhibit R1) (G25, page 106). Additionally, the letter noted that the Applicant was convicted on 9 January 2017 and was currently serving a full-time custodial sentence of imprisonment of six months, for the offences of “being armed or pretending to be armed in a way that may cause fear” and “unlawfully assault and thereby did bodily harm with circumstances of aggravation” (Exhibit R1) (G25, page 106). These were domestic violence offences against his former partner. The Applicant was invited to make representations, which he did on 3 March 2017 (Exhibit R1) (G4, page 14). These were summarised by the delegate as follows:·[the Applicant] has resided in Australia since 1998, when he was 17 years old;·[the Applicant] left Sudan when he was 13 years of age due to the war;·[the Applicant’s] brothers and sisters are in Australia;·[the Applicant] was diagnosed with mental illness in 2001, which he states sometimes makes it hard for him to cope;·[the Applicant] is in a relationship with an Australian citizen and has two minor … [step-children] … through the relationship, who regard him as a father and whose best interests would be at risk if the cancellation is not revoked (Exhibit R1) (G4, page 15). After considering these representations, on 6 April 2018 a delegate of the Respondent decided not to revoke the mandatory cancellation of the Applicant’s visa pursuant to s 501CA(4) of the Migration Act (the Reviewable Decision) (Exhibit R1) (G3, page 13). The Reviewable Decision was communicated to the Applicant in a letter from the Department of Home Affairs dated 10 April 2018 which was hand-delivered to the Applicant, in immigration detention, on the same date (Exhibit R1) (G2, page 10).