Read and Minister for Home Affairs (Migration) - [2019] AATA 1404

Read and Minister for Home Affairs (Migration) [2019] AATA 1404 (25 June 2019)
Division:GENERAL DIVISION
File Number: 2019/1990
Re:Mr Nicholas Read
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member D.J. Morris
Date:25 June 2019
Place:Sydney

The Tribunal decides that the decision of the Respondent made on 1 April 2019, being a decision of the delegate of the Minister for Home Affairs not to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa under s 501CA(4) of the Migration Act 1958 (Cth), is set aside.
In substitution, the decision to cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is revoked.
....................[sgd].....................
Senior Member D.J. Morris
CATCHWORDS
MIGRATION – mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) visa – failure to pass the character test – whether there is another reason why the cancellation decision should be revoked pursuant to section 501CA(4)(b)(ii) of the Migration Act 1958 – Ministerial Direction No. 79 applied – primary considerations – protection of the Australian community from criminal or other serious conduct – expectations of the Australian community – other considerations – strength, nature and duration of ties to Australia – extent of impediments if removed – reviewable decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 499, 501, 501CA
Migrations Regulations 1994 reg 2.52
CASES
FYBR v Minister for Home Affairs [2019] FCA 500
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; 241 FCR 461; 124 ALD 68
Minister for Home Affairs v HSKJ [2018] FCAFC 217; 363 ALR 325
R v Read [2018] NSWDC 304
SECONDARY MATERIALS
Migration Act 1958 – Direction under section 499 – Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (instrument made 20 December 2018, commenced 28 February 2019)
REASONS FOR DECISION
Senior Member D.J. Morris
25 June 2019
Background

Mr Nicholas Read was born in New Zealand in December 1982 and came to Australia with his parents for the first time as an infant in November 1983, departing a few days later. He returned with them in June 1984 when they settled in Australia. He has travelled out of Australia on a few occasions since then, but has resided in Australia. Mr Read is a New Zealand citizen and remained in this country as the holder of a Class TY Subclass 444 Special Category (Temporary) visa until that visa was cancelled by a delegate of the Minister for Home Affairs (the Respondent Minister) on 24 August 2016 under section 501(3A) of the Migration Act 1958 (Cth) (the Act). The cancellation was mandatory as a result of Mr Read having a ‘substantial criminal record’ as defined in the Act and having been sentenced to serve a term of imprisonment of more than 12 months.
Mr Read was invited to…

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: [2019] AATA 1404
Decision Date: 25 June 2019

CaseChat Overview and Summary

This matter concerned an application by Mr Nicholas Read to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa. The cancellation was based on Mr Read failing to pass the character test due to criminal convictions. The dispute before the Administrative Appeals Tribunal was whether there was "another reason" why the cancellation decision should be revoked, pursuant to section 501CA(4)(b)(ii) of the *Migration Act 1958* (Cth).

The Tribunal was required to determine whether, in light of Ministerial Direction No. 79, the circumstances of Mr Read's case warranted the revocation of his visa cancellation. This involved assessing both primary considerations, such as the protection of the Australian community from criminal conduct and community expectations, and other considerations, including the strength and duration of Mr Read's ties to Australia and the impediments he would face if removed.

The Tribunal reasoned that while Mr Read's criminal conduct, particularly the unprovoked assault and attempts to pervert the course of justice, was serious and viewed adversely, especially given its nature and the victim's injuries, it was not in the highest range of seriousness for such offences. The Tribunal considered Mr Read's remorse, his commitment to rehabilitation, his desire to return to his trade as an electrician, and his strong ties to his family in Australia. It also noted his lack of ties to New Zealand and the difficulties he would face if repatriated. Applying the principles in Ministerial Direction No. 79, the Tribunal concluded that these other considerations, when weighed against the primary considerations, constituted "another reason" why the original cancellation decision should be revoked.

The Tribunal set aside the original decision to cancel Mr Read's visa and substituted a decision to revoke that 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

Mr Markus said that the Respondent accepted that some of the other considerations tend to favour revocation of the cancellation decision; however, he submitted that two of the primary considerations that decision-makers must have regard to in the Direction strongly speak in favour of affirming the original decision. Evidence of the Applicant The Tribunal admitted into evidence a written statement of Mr Nicholas Read dated 20 May 2019 .[4][4] Exhibit A1. Mr Read was asked whether he accepted that the material tendered by the Respondent (TB Documents produced under summons by the NSW Department of Corrective Services) is an accurate record of his criminal activity, which he conceded. Mr Read said that since being in custody and immigration detention he had reflected on his conduct and how many people have been hurt by his actions, both victims and his own family. He said that his parents are distraught by his conduct because he had had a happy upbringing and did not want to go back to his past behaviour. Mr Read said that he had grown to hate the drug to which he had been addicted, crystal methamphetamine (ICE) and although it had been available both in prison and in detention, he had kept away from it. He conceded that he had taken buprenorphine in prison and that it was the only illicit medication he has consumed in the last three years. He said that when he was on ICE ‘my life became a lie’ and that, when he was taking ICE, he lost everything – his job, shares in his house, his vehicle and many of his possessions that he sold to fund his drug habit. Mr Read said he was committed to go into residential rehabilitation if his visa is restored and he leaves immigration detention. He said he would initially live with his parents, after the residential rehabilitation course, and hoped to go back to his trade, as an electrician, a job he held from the age of 16 until he was 32 years of age. He told the Tribunal he had risen to be a leading hand electrician installing various electrical systems and with responsibility for a team of younger co-workers, ordering goods and completing tasks on time. Mr Read said although he was born in New Zealand he has no ties with that country, and his strong preference would be to undertake his rehabilitation in Australia because this is where his family and friends are. When asked about the events leading up to the conviction for Reckless assault, Mr Read said he handled things very badly because of his state of mind at the time, that he was ‘intoxicated with ICE’. He said that he wanted to be known as a successful person, not as a criminal. Under cross-examination, Mr Read agreed that he does have an aged aunt and uncle in New Zealand, his mother’s sister and her husband, but he had had no contact with them and he would not feel comfortable asking them for help, if he was repatriated. Mr Read was taken to the National Police Certificate where the first offence recorded was a conviction for Contravene apprehended domestic violence order, before Manly Local Court in March 2001. He said it was his recollection that the police originally applied for the AVO because of his behaviour at home, and that he had come home drunk and broken a plate. He said he remained living with his parents at this time.

Decision

Reasons for decision

Section 501CA relevantly provides that:(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.…(4) The Minister may revoke the original decision if:(a)the person makes representations in accordance with the invitation; and(b)the Minister is satisfied:(i)that the person passes the character test (as defined by section 501); or(ii)that there is another reason why the original decision should be revoked. Having found that Mr Read fails the character test, the Tribunal agrees with the submission from both parties that the sole issue before the Tribunal is whether there is another reason why the original decision should be revoked. In Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337, North ACJ stated, at [38]:The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked…The Ministerial Direction Section 499(1) of the Act provides that the Minister may give written directions about the exercise of functions or powers under the Act. On 20 December 2018, the then Minister for Immigration, Citizenship and Multicultural Affairs (who was jointly authorised with the Minister for Home Affairs to administer the Act) made Direction No. 79 (the Direction) under section 499 of the Act. The Direction commenced on 28 February 2019. The Tribunal must, under section 499(2A) of the Act, comply with the Direction in considering this matter. Paragraph 6.1 of the Direction states, in part:6.1 Objectives(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.…(3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case. Relevantly, the Direction includes the following principles at paragraph 6.3:(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

Ratio Decidendi

Legal Principle Established

The Tribunal considered each of the primary and other considerations set out in Part C of Direction No. 79 (the Direction).Primary consideration - Protection of the Australian community (paragraph 13.1) The Direction requires decision-makers, including this Tribunal, to give consideration to 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. Mr Dobbie conceded that Mr Read’s criminal record reveals offending that can be considered as serious, but submitted that it was in the lower to middle range of seriousness. However, the Tribunal also notes that His Honour, in his commentary on the injuries sustained by the victim, said that the beating was “savage, sustained, caused serious facial fractures and lacerations”, that there was no relevant provocation by the victim; that there was no element of self-defence; and that “it was a cowardly one way attack”. His Honour also noted that Mr Read repeatedly lied to police and, in the course of the week following his arrest, continued a course of conduct of intimidating the victim and pressuring him to change the evidence about the assault that he had given to the police. The Judge said:In my opinion, the objective seriousness of the Count 2 offending is indicated by the criminal culpability of rising without provocation from a peaceful posture and environment against a friend who was not responding with violence, with the intimidation of a potentially lethal weapon to achieve dominance, It is also indicated by sustained repeated and forceful bashing to the eye region and the head of [the victim]. The degree of recklessness was high. The wounding was significant but not in the high range for offences of this type. I assess the objective seriousness at about the middle range for an offence of this type.[16][16] G-Documents, p. 59 at para [49]. In terms of the two counts relating to Mr Read attempting to pervert the course of justice, His Honour said:Encouraging persons, particularly persons who are to give evidence, to retract their statements or to fail to give evidence is a serious matter. The offender clearly intended to thwart the course of justice. The Crown concedes that neither witness was prepared to go along with the offender’s approaches. As submitted by Counsel for the offender, his attempts to thwart justice by use of a prison telephone was not only ineffective but was unsophisticated because of the risk that he would be detected. The statements had already been given to the police by the witnesses. The prospects of him being successful were low. I acknowledge the statutory goalpost of a maximum term of 14 years. I accept the Crown submission that the objective seriousness of Counts 3 and 4 is in the lower range for offences of this type.[17][17] G-Documents, p.59 at para [51]. The Direction also explicitly highlights the principle (at paragraph 13.1.1.(1)(b)) that crimes against women and children are viewed very seriously, regardless of the offence imposed. Mr Read’s unprovoked attack on his former girlfriend’s flatmate falls squarely into this category, and is viewed adversely by the Tribunal.