RDVN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 5141

RDVN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 5141 (21 December 2020)
AppID:  RDVN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
MatterType:    Migration
Division:GENERAL DIVISION
File Number:          2020/6060
Re:RDVN
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:21 December 2020
Place:Melbourne

The Tribunal decides to set aside the decision of the delegate of the Respondent dated 23 September 2020. In its place, under section 43(1) of the Administrative Appeals TribunalAct 1975, the Tribunal substitutes a decision that the Applicant not be refused a Bridging E (Class WE) visa under s 501(1) of the Migration Act 1958.
...[sgd]....................................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – refusal of Bridging E (Class WE) visa – section 501 of Migration Act – does applicant pass character test – if not should discretion be exercised not to grant applicant visa – consideration of Ministerial Direction No. 79 – primary considerations – protection of Australian community from criminal or other serious conduct – the best interests of minor children in Australia – expectations of the Australian community – other considerations – international non-refoulement obligations – impact on family members – impact on victims – impact on Australian business interests – disposition of the applicant – decision set aside and new decision substituted
Legislation
Administrative Appeals Tribunal Act 1975, s 33A
Migration Act 1958, ss 116, 499, 501, 501K
Cases
Ahori and Minister for Immigration and Border Protection, Re [2017] AATA 601
FYBR v Minister for Home Affairs [2019] FCAFC 185
Secondary Materials
Migration Act 1958 (Cth) – Direction under s 499 – Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (commenced 28 February 2019)
REASONS FOR DECISION
Senior Member D. J. Morris
21 December 2020
BACKGROUND

The Applicant in this matter applied for a Bridging E (Class WE) visa on 6 July 2020.

On 23 September 2020, a delegate of the Respondent decided to exercise the discretion in section 501(1) of the Migration Act 1958 (the Act) to refuse RDVN’s application for the visa. On 5 October 2020, RDVN applied to the Tribunal seeking review of this decision.
A hearing was held on 7 and 8 December 2020 by videoconference, as provided for by section 33A of the Administrative Appeals Tribunal Act 1975. The Applicant was represented by Mr Dushan Nikolic with Ms Leah Perkins of Carina Ford Immigration Lawyers. The Respondent was represented by Ms Rachael Law of Clayton Utz. The Act provides, at section 501K, that the identity of applicants for protection visas or protection-related bridging visas may not be published. The Applicant is in this category, so the Tribunal has assigned the anonym ‘RDVN’ to the Applicant. The identity of certain other persons will be anonymised in these reasons.
The Applicant gave evidence and was cross-examined. The following other witnesses…

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

AGLC: RDVN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 5141
Case: [2020] AATA 5141
Decision Date: 21 December 2020

CaseChat Overview and Summary

This matter concerned an application for a Bridging E (Class WE) visa by RDVN, a citizen of India, following the refusal of his protection visa application. The core dispute revolved around whether RDVN satisfied the character test under section 501 of the *Migration Act 1958* (Cth) and, if not, whether the discretion to grant the visa should be exercised in his favour. The case was heard by D. J. Morris SM.

The legal issues before the Tribunal were whether RDVN passed the character test, given his conviction for attempting to pervert the course of justice and his resulting 12-month prison sentence, which constituted a substantial criminal record. Consequently, the Tribunal had to determine whether to exercise the discretion under section 501(1) of the Act not to refuse the visa, considering the criteria outlined in Ministerial Direction No. 79. This involved weighing primary considerations such as the protection of the Australian community, the best interests of minor children, and community expectations, against other considerations including international non-refoulement obligations and the impact on family members and victims.

The Tribunal reasoned that RDVN, by virtue of his 12-month prison sentence, did not pass the character test. However, in exercising the discretion under section 501(1), it considered the primary considerations. While acknowledging the seriousness of his offending, including admitted offences related to stalking, threatening to kill, and breaching family violence orders against his partner and son, the Tribunal noted that these did not involve violence against children and that contact with his son was permitted and considered safe. It also observed that RDVN had no prior criminal history in Australia or India before 2015, and had previously worked and contributed to the community. The Tribunal emphasised that any future offending would jeopardise his immigration status.

Ultimately, the Tribunal decided to set aside the delegate's decision to refuse the Bridging E (Class WE) visa. In substitution, it determined that RDVN should not be refused the visa under section 501(1) of the Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Respondent tendered three volumes of documents, which will be described as GD (admitted as exhibit R1); SGD (exhibit R2) and FSGD (exhibit R3). The Applicant submitted two bundles of documents of numbered annexures. Annexures 1 to 11 were admitted as exhibit A1 and annexures 12 to 17 were admitted as exhibit A2. Both parties also submitted written Statements of Facts, Issues and Contentions. At the conclusion of the hearing the Tribunal reserved its decision.Migration background of the Applicant RDVN was born in 1990 and is a citizen of the Republic of India. In June 2006 he arrived in Australia on a Tourist (Subclass 676) visa (GD, p 186). He departed Australia at the end of July 2006 (GD, p 186). In October 2007, RDVN arrived in Australia on a Student (subclass 570) visa (GD, pp 186, 231) and in November 2008 he was granted a Vocational Education and Training Sector Student (subclass 572) visa. In June 2010, RDVN applied for a Temporary Skilled Regional Sponsored (subclass 487) visa as a dependant applicant on his wife’s visa application, which was granted in July 2013, and then in July 2015 he applied for a Skilled Resident (subclass 887) visa (GD, p 231). In January 2017, RDVN was granted a bridging visa (SGD, p 548) which was cancelled on 13 March 2018 under section 116 of the Act. The Applicant withdrew his application for the Skilled Resident visa in September 2019 (GD, p 232). On 20 October 2019, RDVN applied for a Protection visa (subclass 866) (GD, p 189). On 6 November 2019, he was granted a Bridging E visa associated with his protection visa application (GD, p 232). On 21 November 2019, RDVN’s application for a protection visa was refused by a delegate of the Respondent (GD, p 227). On 6 July 2020, RDVN applied for a Bridging E (Class WE) visa, to enable him to remain in the community while his protection visa application is heard by the Migration and Refugee Division of this Tribunal. The refusal of this bridging visa is the matter before this hearing.LEGISLATIVE FRAMEWORK Section 501(1) of the Act provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. Section 501(6) of the Act sets out the grounds for failing the character test. It states, in part:(6)For the purposes of this section, a person does not pass the character test if:(a)The person has a substantial criminal record (as defined by subsection (7)); or… Section 501(7) of the Act states, relevantly in this matter, in setting out what a substantial criminal record is:(7)For the purposes of the character test, a person has a substantial criminal record if:…(c)the person has been sentenced to a term of imprisonment of 12 months or more; or … The Applicant (ASFIC, p 1) conceded that he does not pass the character test prescribed in the Act because he had been convicted and sentenced to a sentenced to a term of imprisonment of 12 months. The Tribunal had before it a National Police Certificate (GD, pp 33–34) which records that in October 2019 RDVN was convicted of the offence of Attempt to pervert the course of justice and sentenced by the County Court of Victoria to 12 months’ imprisonment. Because of this sentence, he has a substantial criminal record by force of section 501(7)(c) of the Act.

Evidence

Evidence Before The Court

Ms Law, for the Minister, submitted that notwithstanding the requirements that may be applied to a bridging visa, the issue before the Tribunal is whether the discretion should be exercised under section 501(1) of the Act to grant the visa, taking into account the considerations set out in the Direction.EVIDENCEEvidence of RDVN RDVN told the Tribunal that he first came to Australia in June 2006 and stayed for over a month before returning to India. He then finished his schooling and returned to Australia in October 2007 on a student visa to study an English language course in Melbourne, which he completed. RDVN agreed that the movement record compiled by the Department of Home Affairs (GD, p 186) was accurate and that he had spent around six months out of Australia since arriving here to study in October 2007. In terms of family members in Australia, RDVN told the Tribunal that his partner, Ms AP and son AC live here, as does: his widowed mother Ms AM; his brother, his brother’s wife and their three children; his sister (Ms AS), her husband and their two children; and the brother of Ms AP. All these persons are Australian citizens or permanent residents, except for Ms AP’s brother, who holds a student visa. RDVN said that he met Ms AP when they were both studying. He worked at that time as a security guard but was limited to 20 hours a week by the conditions of his visa. He said that after about 18 months he obtained full working rights and then worked for his brother who had a courier company with a contract with Australia Post. RDVN said at first he delivered mail and then at the end of 2011 he was promoted to be a supervisor. He worked for this courier company from 2011 until 2015. RDVN said he finished working for the company in August 2015 and then worked at a car wash from 2015 to 2017 as a manager. RDVN said he commenced a romantic relationship with Ms AP and they subsequently started living together in early September 2008 and were married at the end of that month. They later travelled to India for a traditional marriage ceremony early in 2010. RDVN said they had a good relationship; both were employed, and household finances were good. Ms AP fell pregnant and in August 2015 their son AC was born. RDVN said that his brother’s courier business ceased in August 2015, days after AC was born. Ms AP was still in hospital after the birth. He said he suddenly found himself without work and with a newborn child. RDVN said he felt depressed and under pressure. He told the Tribunal that, about two months later, a fellow worker at the car wash brought drugs to work and offered RDVN to try them. RDVN said he started using heroin but felt ashamed and did not tell his family. RDVN said he had never used illicit drugs before 2015, apart from once or twice trying marijuana. He said he started using heroin twice a week, then three times, and after six months he was using heroin daily. He said whatever money he earned went on buying drugs. RDVN hid his drug use from his wife.

Decision

Reasons for decision

It must be emphasised, as strongly as the Tribunal is able, that any offending or other serious conduct, which includes other serious conduct which does not lead to convictions, will jeopardise RDVN’s immigration status and could be expected to lead to the cancellation of the bridging visa, and return to immigration detention. RDVN needs to be aware that his continuing good behaviour is a direct condition to which he must adhere to, to allow him to rekindle his relationship with his partner and his son and live with other family members. DECISION The Tribunal decides to set aside the decision of the delegate of the Respondent made on 23 September 2020. In its place, the Tribunal substitutes a decision that the Applicant not be refused a Bridging E (Class WE) visa under s 501(1) of the Act.

Ratio Decidendi

Legal Principle Established

Under cross-examination, Ms AS said she noticed RDVN’s behaviour changed when the medication he had brought from India finished, and suspected he was doing something wrong. She said she believes RDVN would not re-offend because “he saw hell in his life and knows he will lose his partner and son if he resumes” drug-taking.CONSIDERATIONPrimary consideration – Protection of the Australian community from criminal or other serious conduct (paragraph 11.1) The Direction requires the Tribunal to consider the nature and seriousness of the non-citizen’s conduct to date, and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. The Direction states that violent crimes are viewed seriously. The Direction also states, at paragraph 11.1.1(1)(b), the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed. There is no evidence before the Tribunal that RDVN has been convicted of a crime against a child. However, there are several admitted offences in relation to his interaction with his then wife and current partner, Ms AP. They include stalking, threatening to kill and breaching the conditions of Family Violence Orders. RDVN accepted that these were serious offences and did not particularly seek to minimise them, although the police reports of the interaction between him and Ms AP, which led to her falling, did not seem to square with either the evidence he gave nor, indeed, with the evidence Ms AP gave. While it is accepted that AC was very young at this time, not more than 2 years of age, and not physically present when the altercations occurred, the conduct of RDVN was completely unsatisfactory, and it is entirely understandable that, having been called on previous occasions to their residence, the police decided that a Family Violence Intervention Order was warranted, and one that listed both Ms AP and AC as protected persons. Balancing that, the Tribunal notes that the interim and final orders both continued to permit contact between RDVN and AC and it was the consistent evidence of all the witnesses that AC was never at any risk of harm and that Ms AP was happy for RDVN to continue to have contact with their son. This part of the Direction requires the Tribunal to consider the frequency of the Applicant’s offending and whether there is a trend of increased seriousness. In this case, there was no history of RDVN offending in Australia from when he first came to settle here in 2007 until 2015. There was also no evidence of criminal conduct in India before 2007 (Indian Police Certificate, Exhibit A1). RDVN completed an academic course, obtained employment and married, and by all accounts contributed to this country over that period. Judge Allen said, when passing sentence (FSGD, p 769):You worked very hard for several years to build a new life in this country. Nearly a year in education and then several years of hard work and responsible positions. You have a wife here. Although you are estranged, she is the mother of your son and you have an only child who was born in this country.