Quirke and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Case [2020] AATA 142

Quirke and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 142 (11 February 2020)

Division:GENERAL DIVISION

File Number(s):      2019/1185

Re:William John Quirke

APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd  

RESPONDENT

DECISION

Tribunal:Senior Member Linda Kirk

Date:11 February 2020

Place:Sydney

The Reviewable Decision dated 7 February 2019 to refuse to revoke the Mandatory Visa Cancellation Decision is affirmed.

.......................[sgd].............................................

Senior Member Linda Kirk

CATCHWORDS

MIGRATION – Mandatory cancellation of Class UC subclass 457 Temporary Work (Skilled) visa – substantial criminal record – character test – whether there is any other reason why the visa cancellation decision should be revoked – Ministerial Direction No. 79 – primary considerations – protection of the Australian community – best interests of minor children – expectations of the Australian community – other considerations – strength, nature and duration of ties – extent of impediments if removed – drink driving –alcohol fuelled offences – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth) ss 499, 500, 501 and 501CA.

CASES

Afu v Minister for Home Affairs [2018] FCA 1311

Dalley and Minister for Home Affairs (Migration) [2019] AATA 3738

DKXY v Minister for Home Affairs [2019] FCA 495

FYBR v Minister for Home Affairs [2019] FCA 500

FYBR v Minister for Home Affairs [2019] FCAFC 185

Minister for Home Affairs v Buadromo [2018] FCAFC 151

PNLB v Minister for Immigration and Border Protection [2018] AATA 162

Saleh v Minister for Immigration and Border Protection (Migration) [2017] AATA 367

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

SECONDARY MATERIALS

Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Senior Member Linda Kirk

11 February 2020

INTRODUCTION

  1. Mr William John Quirke (‘the Applicant’), a citizen of Ireland, was born in 1985. He first arrived in Australia on 9 November 2012 on a working holiday visa.[1] On 24 November 2014, the Applicant was granted a Class UC subclass 457 Temporary Work (Skilled) visa valid for four years.[2] The Applicant left Australia for short periods in May 2015, December 2015 and July 2017 but was otherwise in Australia for approximately six years.[3]

    [1] G documents, G61, 370.

    [2] Supplementary documents, G71, 68-73.

    [3] G documents, G61, 370.

  2. On 10 August 2018, the Applicant was convicted in the Local Court of New South Wales of “Drive with high range PCA – 1st offence]”, and sentenced to 16 months’ imprisonment.[4]

    [4] G documents, G3, 29.

  3. On 5 October 2018, the Department issued the Applicant with a Notice of Visa Cancellation (‘the Mandatory Visa Cancellation Decision’) under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’).[5] The delegate was satisfied the Applicant did not meet the character test because of the operation of s 501(6)(a) of the Act as he has a substantial criminal record (s 501(7)(c)), and he was then serving a sentence of full-time imprisonment at…

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AGLC
Quirke and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 142
Case
[2020] AATA 142
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Mr Quirke, against the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs' decision to affirm the mandatory cancellation of his Class UC subclass 457 Temporary Work (Skilled) visa. The cancellation was based on the applicant having a substantial criminal record, failing to pass the character test. The applicant sought to have the cancellation decision revoked, arguing there was another reason why it should be. The case was heard by Linda Kirk SM in the Administrative Appeals Tribunal.

The Tribunal was required to determine whether there was any "other reason" why the mandatory visa cancellation decision should be revoked, having regard to Ministerial Direction No. 79. This involved considering the primary considerations outlined in the Direction, including the protection of the Australian community, the best interests of minor children, and the expectations of the Australian community, as well as other relevant considerations such as the strength and duration of the applicant's ties to Australia and the extent of impediments to his removal.

In its reasoning, the Tribunal considered the applicant's criminal history, which included multiple instances of drink driving, public nuisance, and obstruction of police officers. The Tribunal noted that while the offences were primarily alcohol-related, this did not diminish their seriousness, particularly the 2017 offences involving highly reckless and dangerous driving that posed a significant risk to life. The Tribunal applied the principles in Ministerial Direction No. 79, specifically focusing on the protection of the Australian community by assessing the nature and seriousness of the applicant's conduct and the risk of future offending. The Tribunal found that the applicant's offending, particularly the cumulative effect of repeated offences and the seriousness of the driving offences, did not satisfy the threshold for an "other reason" to revoke the cancellation.

Ultimately, the Tribunal was not satisfied that there was any "other reason" to revoke the mandatory visa cancellation decision. Accordingly, the Tribunal affirmed the decision to refuse to revoke the mandatory visa cancellation.

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

If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision must be revoked.EVIDENCE BEFORE THE TRIBUNALCriminal History A Nationally Coordinated Criminal History Check dated 24 September 2018[10] issued in respect of the Applicant, discloses six occasions (not including appeals) where the Applicant has appeared before a court in relation to 11 separate offences. In his representations to the Department and the Tribunal, the Applicant did not dispute the convictions and sentences in the Nationally Coordinated Criminal History Check.[10]G documents, G3, 28-29.2013 offences In August 2013, approximately nine months after his arrival in Australia, the Applicant was spoken to by police on the street in the early afternoon when they observed him to be highly intoxicated.[11] According to Queensland Police records, two females, aged 16 and 20, approached police and indicated that the Applicant had spoken to the younger girl in an offensive manner. A male aged 17 also complained to police that the Applicant had spoken to him indicating that he wanted a fight. The Police records indicate that when the Applicant was taken to the watch house, he became belligerent and hostile and made various threats and used offensive language towards the officers.[12] Police conducted a breath test of the Applicant and recorded a breath analysis reading of 0.321% which resulted in them releasing him into the care of another person. The Applicant was convicted on 28 August 2013 of “commit public nuisance” and “assault or obstruct police officer”. No conviction was recorded and a fine was issued.[13] The Applicant was asked about this offence at the hearing, and he said he does not remember using any offensive or aggressive language towards anyone on this occasion.[14][11] Supplementary documents, G69, 57.[12] Supplementary documents, G69, 53.[13] G documents, G3, 29.[14] Transcript p8. Queensland Police records indicate that on 17 November 2013, the Applicant was observed in the early hours of a Sunday morning urinating in a public place.[15] He indicated to police that he had applied to stay in Australia, and that he was the holder of a working holiday visa. He refused to provide his details to police. He was arrested and charged. On 5 December 2013, the Applicant was convicted of “Urinating in a public place” and again no conviction was recorded but he was fined.[16] The Applicant was asked about this offence at the hearing and he said that it is ‘not a thing [he is] proud of.’[17][15] Supplementary documents, G69, 48.[16] G documents, G3, 29.[17] Transcript p9. Australian Federal Police records indicate that the Applicant's Queensland driver’s licence was suspended and he was disqualified from driving on 14 August 2013 for driving under the influence.[18][18] Supplementary documents, G67, 17; G4, 31.2014 offences On 7 July 2014, NSW Police were called to a disturbance at a backpacker’s hostel in Sydney involving the Applicant and another male. Both were observed to be highly intoxicated and police observed that the Applicant had a slightly red chin. Both were noted to be uncooperative with police who took no further action. The Applicant was removed from the premises.[19] The Applicant was asked about this incident at the hearing and he said that ‘a lot of people turned on [him] and there was a lot of complaints made there against [him].[20][19] Supplementary documents, G68, 40-41.[20] Transcript p11.

Decision

Reasons for decision

The Tribunal is not satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, and therefore the decision to refuse to revoke the Mandatory Visa Cancellation Decision is affirmed.DECISION The Reviewable Decision dated 7 February 2019 to refuse to revoke the Mandatory Visa Cancellation Decision is affirmed.

Ratio Decidendi

Legal Principle Established

In determining whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must take into account the considerations in Part C of the Direction, informed by the Principles in paragraph 6.3.Primary Consideration A – Protection of the Australian community Primary Consideration A of Part C is the Protection of the Australian Community. Paragraph 13.1(1) of the Direction provides:1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved. Paragraph 13.1(2) directs that decision-makers should also give consideration to: (a) the nature and seriousness of the non-citizen's conduct to date; and(b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. Paragraph 13.1.1(1) sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:(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) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;(e) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;(f) The cumulative effect of repeated offending;…(a) Nature and seriousness of the Applicant’s conduct to date In considering the seriousness of the Applicant’s criminal offending, particularly the 2017 offences for which he received a 16 month sentence of imprisonment, the Tribunal has had regard to a number of factors, including those listed in paragraph 13.1.1(1). The Applicant’s offences are primarily traffic or driving offences or other behavioural offences related to his overconsumption of alcohol. His convictions include five offences where he drove under the influence of alcohol with a high range PCA. In addition, his offences include public nuisance offences, unlicensed driving, licence expiry and assault or obstruction of a police officer. While the Applicant’s offending may be characterised as drink driving and other alcohol related offences, this does not negate the seriousness of his offending. The 2017 offences involved the Applicant driving in a highly reckless and extremely dangerous manner, which could have resulted in the loss of multiple lives, and are therefore very serious. This is reflected both in the sentencing comments of the Magistrate as well as the actual sentence imposed which involved a period of full time custody.