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

Case [2020] AATA 1640

Rascovici and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1640 (4 June 2020)

Division:GENERAL DIVISION

File Number:          2020/1695

Re:Cristian Rascovici

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A. Nikolic AM CSC

Date:4 June 2020

Place:Melbourne

The Tribunal affirms the decision under review.

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

Senior Member A. Nikolic AM CSC

MIGRATION – Mandatory visa cancellation – citizen of Romania – Class BC Subclass 100 Partner (Migrant) visa – failure to pass good character test – extensive criminal history – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)

CASES
Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
Brown v The Minister for Immigration and Citizenship (2010) 183 FCR 113
FYBR v Minister for Home Affairs [2020] HCA 056
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hughes v The Queen [2017] HCA 20; 344 ALR 187
HVLC v Minister for Home Affairs [2019] FCA 616
Jagroop v Minister for Immigration and Border Protection [2016] 241 FCR 461
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567
Minister for Immigration and Citizenship v Obele [2010] FCA 1445; (2010) 119 ALD 358  
Murphy v Minister for Home Affairs [2018] FCA 1924
Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 304 ALR 535
RJE v Secretary to the Department of Justice [2008] VSCA 265; 21 VR 256
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 162 ALD 13
WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705; (2015) 148 ALD 117

SECONDARY MATERIALS

Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501C

REASONS FOR DECISION

Senior Member A. Nikolic AM CSC

4 June 2020

INTRODUCTION

  1. The applicant, Mr Cristian Rascovici, seeks review of a decision by a delegate of the respondent, made under s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), not to revoke the mandatory cancellation of his Class BC Subclass 100 Partner (Migrant) visa (“the visa”).[1]

    [1] Exhibit R1, 7.

  2. The hearing was held in Melbourne on 27 May 2020. Mr Rascovici was represented by
    Ms Souvlakis of Ethos Migration Lawyers. The Minister was represented by Mr Orchard of Sparke Helmore Lawyers.

  3. For the following reasons, the Tribunal affirms the decision under review.

    BACKGROUND

  4. Mr Rascovici is a 38-year old citizen of Romania who came to Australia in 2006 when he was 25 years of age. He met and married his Australian…

Details
AGLC
Rascovici and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1640
Case
[2020] AATA 1640
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Mr Rascovici, a Romanian citizen, against the mandatory cancellation of his visa. Mr Rascovici arrived in Australia in 2006 and, despite having criminal convictions in Romania, was granted a visa. He was warned at that time about the consequences of failing to disclose criminal convictions in future applications. He subsequently acquired approximately 100 convictions in Australia between 2008 and 2019, including offences involving dishonesty, violence, and drug possession. His visa was cancelled under section 501 of the *Migration Act 1958* (Cth) due to his failure to pass the character test. The Administrative Appeals Tribunal was required to determine if there was "another reason" why the mandatory cancellation should be revoked.

The primary legal issue before the Tribunal was whether Mr Rascovici had established "another reason" to revoke the mandatory visa cancellation, as contemplated by section 501CA(4)(b)(ii) of the *Migration Act 1958* (Cth). This required the Tribunal to consider whether any identified reasons carried sufficient weight or significance to warrant the revocation of the cancellation decision, beyond simply passing the character test. The Tribunal also had to assess the nature and seriousness of Mr Rascovici's criminal offending, the cumulative effect of his repeated offending, and whether he had re-offended after being warned by immigration authorities.

The Tribunal reasoned that Mr Rascovici did not pass the character test due to his extensive criminal history and the serious nature of his offending, which included violent acts against his wife and persistent dishonesty. The Tribunal found that his claims of rehabilitation were aspirational and unpersuasive, noting his failure to alter his behaviour despite previous opportunities, warnings, and increasingly severe sentences. Furthermore, the Tribunal considered his stated intention to reside with his wife, whom he had previously blamed for his addictions, and concluded that his post-release plans would likely return him to the circumstances that contributed to his past offending, rendering his risk of recidivism unacceptably high. The Tribunal also found his claims of playing a positive parental role unconvincing, given his past neglect and limited meaningful contact with his daughter. Consequently, the Tribunal determined that the seriousness and persistence of his criminal conduct, coupled with a lack of genuine rehabilitation, weighed heavily against revoking the visa cancellation.

The Tribunal affirmed the decision to cancel Mr Rascovici's visa, finding no "another reason" that would justify its revocation. The Tribunal concluded that the mandatory cancellation of his visa should stand.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the following reasons, the Tribunal affirms the decision under review. BACKGROUND Mr Rascovici is a 38-year old citizen of Romania who came to Australia in 2006 when he was 25 years of age. He met and married his Australian citizen wife while she was holidaying in Romania in 2003,[2] and she subsequently sponsored his migration to Australia.[2] Ibid, 45 [25]; 66 [16]; 128. At the time of Mr Rascovici’s intended migration, consideration was given by Australian immigration authorities to refuse his visa application on character grounds, due to criminal offending in Romania. On 20 January 2006 it was decided not to refuse the visa application, but Mr Rascovici was advised through his authorised recipient[3] of the following:[4]‘It is important that your client note that if he ever makes a future application for a visa or Australian Citizenship, or completes an incoming passenger card when entering Australia, he is required by law to disclose all of his criminal convictions in that application or on his passenger card. The consequences of failing to disclose his convictions are serious and include:·Refusal of entry to Australia;·Refusal of citizenship;·Visa cancellation;·Removal from Australia, and· Criminal prosecution.’[3] World-Aus Immigration and Community Services. [4] Exhibit R1, 102-103. Mr Rascovici arrived in Australia on 11 March 2006. In the section of his incoming passenger card that asks, ‘Do you have any criminal convictions?’ the ‘No’ box is crossed.[5][5] ibid, 115. Approximately five years after arriving in Australia, Mr Rascovici returned to Romania for a three-month holiday.[6] On that occasion, in response to the question on the incoming passenger card ‘Do you have any criminal convictions?’ the ‘Yes’ box is ticked.[7][6] Ibid, 114; 225.[7] Ibid, 116. Mr Rascovici stated in his 2019 Personal Circumstances Form (“2019 PCF”) that his immediate family, including his parents, two brothers and other relatives live in Romania.[8] He stated at the hearing that one of those brothers now lives and works in Germany. The relatives Mr Rascovici has in Australia are his 16-year old daughter, a stepson who is almost 20 years of age,[9] and members of his wife’s immediate family.[10][8] Ibid, 133.[9] Ibid, 129.[10] Ibid, 133. Mr Rascovici has an extensive criminal history in Australia between November 2008 and March 2019, consisting of approximately 100 convictions.[11] In 2013 consideration was again given to refusing a partner visa application he lodged on character grounds.[12] The application was subsequently approved, but on 6 March 2014 a delegate of the respondent warned Mr Rascovici of the potential consequences of any further offending in the following terms (“2014 Warning”):‘On this occasion, a delegate of the Minister has decided not to exercise their discretion to refuse your visa application under subsection 501(1) of the Act. However you are warned that if you engage in any further conduct that might bring you within the scope of section 501, cancellation of any visa that you hold and/or refusal of any future visa applications may be considered and if so, the fact of this warning may weigh heavily against you…It is important to note that if you ever make a future application for a visa or Australian citizenship, or complete an incoming passenger card when entering Australia, you are required by law to disclose any criminal convictions that you may have in that application or passenger card. The consequences of failing to disclose your convictions are serious…’[11] Ibid, 26-29.[12] Ibid, 109-113.

Evidence

Evidence Before The Court

It remains to be determined under s 501CA(4)(b)(ii) of the Act if there is ‘another reason’ why the mandatory visa cancellation should be revoked. The task of identifying ‘another reason’ was elaborated upon by the Full Court of the Australian Federal Court in Viane v Minister for Immigration and Border Protection [2018] 162 ALD 13 per Colvin J at [64]:There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.EVIDENCE BEFORE THE TRIBUNAL The following were tendered into evidence by the applicant:(a)A letter to Mr Rascovici’s daughter dated 18 July 2018 from The Private Eye Clinic, estimating the cost of medical expenses for ‘Squint Surgery’;[18](b)A letter dated 3 May 2018 from medical oncologist Dr Muhammad Alamgeer, regarding treatment received by Mr Rascovici’s father-in-law following surgery;[19] (c)A letter dated 20 May 2020 from general practitioner, Dr Constantin Jigau, stating that he provides medical care for Mr Rascovici, Mr Rascovici’s wife, children and parents-in-law;[20](d)An undated statement from the applicant’s wife;[21](e)A statement dated 6 May 2020 from Mr Rascovici’s stepson;[22](f)An undated statement purportedly from Mr Rascovici’s 16-year old daughter;[23] and(g)An unsigned statement dated 5 May 2020, purportedly from Mr Rascovici’s former employer, Mr Dean Culibrk.[24][18] Exhibit A1.[19] Exhibit A2.[20] Exhibit A3.[21] Exhibit A4.[22] Exhibit A5.[23] Exhibit A6.[24] Exhibit A7. The following were tendered into evidence by the respondent:(a)Documents numbering 228 pages;[25] (b)Supplementary documents numbering 667 pages;[26] and (c)Further supplementary documents numbering 8 pages.[27] [25] Exhibit R1.[26] Exhibit R2.[27] Exhibit R3. The Tribunal heard oral evidence from Mr Rascovici, his wife, and stepson. The Tribunal was advised at the commencement of the hearing that witnesses included Mr Rascovici’s daughter, who would give evidence by telephone. Multiple efforts to contact her on the number provided were unsuccessful, notwithstanding advice that she was expecting the Tribunal to call. The Tribunal also attempted to contact Mr Dean Culibrk, from whom a statement was provided by Ms Liliana Rascovici. Multiple efforts to contact Mr Culibrk on the telephone number provided were unsuccessful. The statement, purportedly from Mr Culibrk, is discussed later in these reasons. National Criminal History

Decision

Reasons for decision

No additional considerations were advanced by the parties and I have not identified any additional ‘other considerations’ relevant to the specific circumstances of Mr Rascovici’s application, as provided for at cl 14(1) of the Direction. CONCLUSION Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, Mr Rascovici does not pass the character test. In determining if there is ‘another reason’ why the mandatory cancellation of his visa should be revoked, the Tribunal has applied the considerations at Part C of the Direction to the specific circumstances of his case. Considering he has committed approximately 100 convictions since 2008, the nature and seriousness of Mr Rascovici’s offending is a significant factor weighing heavily against revoking his visa cancellation. Mr Rascovici’s conduct reflects a persistent disregard for Australia’s law enforcement framework and a degree of recklessness towards the wellbeing of other community members. Mr Rascovici’s rehabilitation claims are aspirational at best. He has failed to take advantage of the court’s leniency and previous opportunities to meaningfully alter the course of his life. He has not been dissuaded from further offending despite undertaking some rehabilitation in the past, or by increasingly severe sentences, or after a formal warning from immigration authorities, or by the interests of his family. The Tribunal found his claims about protective factors unpersuasive, particularly his intention to reside with his wife, who he previously blamed for his drug addiction and propensity to reoffend. Mr Rascovici’s post-release plans would return him to the same contextual circumstances in which much of his past offending occurred. Mr Rascovici’s risk of recidivism is unacceptably high. Mr Rascovici’s daughter has been in the care of her maternal grandmother for some years including periods when Mr Rascovici and his wife were unable to do so as a result of their addictions, imprisonment, or when intervention orders restricted Mr Rascovici’s contact. This has resulted in prolonged absences and limited meaningful contact, during which Mr Rascovici did not play the parental role he now aspires to. Given Mr Rascovici’s daughter is approaching adulthood in under two years, the Tribunal considers the prospect of him playing a positive parental role is unpersuasive and speculative at best. The totality of the evidence shows Mr Rascovici has been a neglectful father, and the interests of his child have not previously motivated the meaningful changes he again promises to make. In terms of the deemed community expectation, Mr Rascovici has persistently acted in ways that are contrary to the privilege bestowed on visa holders to remain in Australia. Considering the very serious and persistent nature of his crimes since 2008, the community would expect him to forfeit the privilege of remaining in Australia. Mr Rascovici has spent approximately 14 years in Australia, started offending two years after arrival and has reoffended frequently since. There is little evidence of any positive contribution. In terms of his ties to Australia, the Tribunal accepts he has some family, work and community ties to Australia, and his repatriation would have an emotional and perhaps financial effect on some family members.

Ratio Decidendi

Legal Principle Established

Clause 13.1.1(1) sets out factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. Decision-makers must have regard to factors including:a) The principle that, without limiting the range of offences that may be considered serious, violent and / or sexual crimes are viewed 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;g) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;h) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);i) 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; or 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 against section 197A of the Act.Tribunal consideration: The nature and seriousness of the conduct There is no dispute that Mr Rascovici’s prior criminal history in Australia is serious. That is evident from the 2019 sentencing remarks, which state:‘Mr Rascovici, some of this offending is appalling. The residential burglaries are serious offences and there’s a spate of them, particularly stealing motor vehicles, ransacking people’s premises while they’re home. It’s appalling. It is traumatic for the people involved and I have to denounce that behaviour.’[56][56] Exhibit R1, 49-50. Mr Rascovici agreed that his offending traversed several categories, including dishonesty offences, offences involving violence or the threat of violence, conditional liberty offences, drug offences, and vehicle/driving offences. He also agreed that media reports about him being apprehended with drugs in his car,[57] stolen goods in his car while holidaying with his wife and daughter,[58] and stealing a puppy from a pet shop in 2008 with the help of his children,[59] were correct.[57] Ibid, 64.[58] Ibid, 72-73.[59] Ibid, 77. Mr Orchard submitted that the totality of Mr Rascovici’s offending must be considered very serious and weighed heavily against revocation. That was particularly so given the violent nature of some offending and persistent dishonesty, motor vehicle and driving offences, which reflected an ‘ongoing (and cumulative) belligerence to Australian laws.’ In relation to the convictions for recklessly cause injury and make threats to kill in November 2009, Mr Orchard referred to records in evidence showing that Mr Rascovici punched and kicked his wife to her head, face and upper body, kicked her while she was on the ground, and made threats to kill her on two occasions.[60] Mr Orchard also highlighted Mr Rascovici’s multiple custodial sentences, repeated recidivism after being formally warned by immigration authorities in March 2014,[61] and provision of false or misleading information by not disclosing Romanian convictions on his incoming passenger card in 2006.[62] [60] Exhibit R2, 74.[61] Exhibit R1, 104.[62] Ibid, 115.Tribunal findings: The nature and seriousness of the conduct