Rewha and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Case [2024] AATA 1425

Rewha and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1425 (4 June 2024)

Division:GENERAL DIVISION

File Number:          2022/8852

Re:Phillip Rewha

APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member S Burford

Date of decision:               4 June 2024

Date of written reasons:         5 June 2024

Place:Perth

The decision of the delegate of the Respondent dated 19 October 2022 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 affirmed.

.....................[Sgd]...................................................

Senior Member S Burford

CATCHWORDS

MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction No 99 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct  – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – extent of impediments if removed – Applicant is a 52 year old citizen of New Zealand – extent of impediments if returned to New Zealand – Non-Revocation Decision is affirmed

LEGISLATION

Migration Act 1958 (Cth) ss 15, 189, 196, 197C, 198, 499, 499(1), 499(2A), 500(1)(ba), 500(6B), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501F, 501E, 503

CASES

AJL20 v Commonwealth of Australia [2020] FCA 1305

BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181

BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313

CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138

Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456

FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990

Hambledon v Minister for Immigration and Border Protection [2018] FCA 7

HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121

Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591

Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47

Rewha v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 748

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

SECONDARY MATERIALS

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (8 March 2021)

Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023) – paras 2,3, 4(1), 5.1, 5.1(3), 5.1(4), 5.2, 5.2(2), 5.2(3), 5.2(5), 6, 7, 7(2), 8, 8(1), 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1, 8.1.1(1) 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1.1(1)(f), 8.1.2, 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.3(1), 8.3(2), 8.3(3), 8.3(4)(a), 8.3(4)(a)(i), 8.3(4)(a)(ii), 8.4, 8.4(3), 8.4(4), 8.4(4)(a), 8.4(4)(b), 8.4(4)(c), 8.4(4)(d), 8.4(4)(e), 8.4(4)(f), 8.4(4)(g), 8.4(4)(h), 8.5, 8.5(1), 8.5(2), 8.5(3), 9, 9.1, 9.2, 9.2(1)(a),…

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AGLC
Rewha and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1425
Case
[2024] AATA 1425
Decision Date

CaseChat Overview and Summary

This matter concerned the application of a 52-year-old New Zealand citizen for the revocation of a mandatory visa cancellation. The applicant's visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) due to having a substantial criminal record, including convictions for possession of weapons, stolen property, and drug trafficking with intent to supply, for which he received a two-year prison sentence. A delegate of the Minister subsequently decided not to revoke this cancellation. The applicant sought review of this decision before the Tribunal. The Federal Court had previously found that the Tribunal had committed a jurisdictional error by failing to afford procedural fairness and by discounting a risk assessment without proper foundation, remitting the matter for redetermination.

The Tribunal was required to determine whether the applicant passed the character test and, if not, whether there was another reason to revoke the visa cancellation decision. In making this determination, the Tribunal was directed to consider Direction No 99, which outlines factors such as the protection of the Australian community, the nature and seriousness of offending, the risk of future offending, the strength of ties to Australia, the best interests of children, community expectations, and impediments to removal. The Tribunal also had regard to evidence presented at a prior hearing, including statements from the applicant's sister, fiancé, and daughter, as well as evidence submitted by the applicant himself.

In its reasoning, the Tribunal noted the absence of evidence of family violence, rendering that consideration irrelevant. It then assessed the strength, nature, and duration of the applicant's ties to Australia, acknowledging the significant adverse effect a non-revocation decision would have on his partner, step-children, sister, and two adult children residing in Australia. The Tribunal considered the applicant's long-term presence in Australia since 1995 and the familial relationships he maintained. However, the Tribunal ultimately affirmed the delegate's decision not to revoke the visa cancellation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The application in this instance is being dealt with on remittal from the Federal Court of Australia.BACKGROUND The Applicant is a 52-year-old citizen of New Zealand.[1] He first arrived in Australia on 29 March 1991 but did not commence living in Australia until May 1995. He has departed Australia on ten occasions since that time.[2][1] R1, G10, page 46.[2] R1, G17, pages 89-90. In September and October 2021, the Applicant was convicted of a number of offences in the Perth District Court and the Midland Magistrates Court. The more serious of those offences were dealt with in the District Court on 14 September 2021 when the Applicant was convicted of ‘having ready access to both weapons and illegal drugs’, ‘possession of stolen or unlawfully obtained property’ and ‘possession of a prohibited drug with intent to sell or supply (methylamphetamine)’ for which he received a total effective sentence of two years imprisonment.[3][3] R1, G4 and R1 page 171. On 7 October 2021, the Minister cancelled the Applicant’s visa under s 501(3A) of the Migration Act on the basis that the Applicant had a substantial criminal record within the meaning of s 501(6)(a) of the Migration Act and was 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 Territory (the Cancellation Decision). The Applicant was notified of the decision by hand on the same date at Wooroloo Prison Farm.[4][4] R1, G24, page 91. On 20 October 2021 the Applicant requested revocation of the Cancellation Decision.[5] He submitted a Personal Circumstances Form and evidence to the Department in support of his request.[6][5] R1, G7, pages 35-39.[6] R1, G9 and G10. On 19 October 2022, a delegate of the Minister decided, under s 501CA(4) of the Migration Act, not to revoke the Cancellation Decision (the Non-Revocation Decision).[7] This is the reviewable decision before the Tribunal. The Applicant was notified of the Non-Revocation Decision by email on 21 October 2022.[8] A signed acknowledgement of the notification indicates it was hand delivered to the Applicant on 24 October 2022.[9] [7] R1, G3, page 7.[8] R1, G3, page 4.[9] R1, G26, page 121. The Applicant lodged his application for review of the Non-Revocation Decision On 25 October 2022.[10] The Tribunal is satisfied that the application was lodged within time, pursuant to s 500(6B) of the Migration Act.[10] R1, G2, page 3. On 20 December 2022, the Tribunal held a hearing before the Tribunal, differently constituted. On 13 January 2023, the Tribunal affirmed the Non-Revocation Decision.[11][11] R1, page 335-373. On 19 May 2023, the Federal Court of Australia found that the Tribunal had discounted a West Australian Government Department of Justice classification review which described the Applicant as a low risk of reoffending without any foundational material for that view and without affording the Applicant procedural fairness.[12] It was held that this amounted to a jurisdictional error.[13] The Court ordered that the matter be remitted to the Tribunal for determination according to law.[14][12] Rewha v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 748 at [36]; R1, page 374.[13] Rewha v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 748 at [38].[14] R1, page 374.ISSUES

Evidence

Evidence Before The Court

For the reasons below, the Tribunal has decided that the correct and preferable decision is that the Non-Revocation Decision be affirmed. THE HEARING AND THE EVIDENCE The hearing of the remitted application was held on 27 November 2023. The Applicant was self-represented. The Respondent was represented by Ms Daphne Jones-Bolla from Sparke Helmore Lawyers. Both Parties appeared via Microsoft Teams. The Tribunal notes the Applicant appeared from New Zealand. At the hearing, the Applicant made submissions, gave evidence and was cross-examined. No other witnesses were called. However, as noted at the hearing, the remittal bundle included the transcript of the previous Tribunal proceedings on 20 December 2022 at which Ms Stephanie Rewha (the Applicant’s sister), Ms Emma Green (the Applicant’s fiancé) and Ms Danielle Rewha (the Applicant’s daughter) gave evidence in support of the application for review of the Non-revocation Decision.[16] The Applicant confirmed at the hearing before the current Tribunal that while he was not calling witnesses he was seeking to rely on the evidence previously provided.[17] The Tribunal has had regard to the evidence provided by those witnesses at the previous hearing, statements previously provided by the Applicant and submissions made on his behalf by his then representative, Mr Glenister, of Counsel.[16] See [16]. [17] Transcript, page 5. The following documents were marked as exhibits:·Undated letter from the Applicant (Exhibit A1);·Photograph of plaque from Kalamunda District Rugby Union Club, Coach under 8’s in Applicant’s name and team photo (Exhibit A2);·Letter from Miss Emma Louise Green dated 7 October 2021 and re-dated 10 October 2023 (Exhibit A3);·Letter from New Zealand Department of Corrections dated 3 October 2023 (Exhibit A4);·Letter from Lesley Lydiate, Kalamunda Rugby Union Club, dated 11 October 2023 (Exhibit A5);·Birth certificate of Mstr C, registered 28 March 2023 (Exhibit A6);·Letter from Annie Williamson of Annies Collective Wonderland, undated (Exhibit A7); and·Remittal Bundle comprising pages 1-471 (Exhibit R1). On 31 August 2023, a directions hearing was held to program the matter for hearing. During which the Tribunal discussed with the parties matters arising for consideration under Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023) (Direction No 99) and the filing of evidence and submissions, noting that the previous Tribunal had considered the matter by applying Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (8 March 2021) (Direction No 90). With the agreement of the parties, the Tribunal also directed that the Respondent file their RSFIC first to assist the Applicant to understand the points at issue and to prepare submissions and evidence in response.

Decision

Reasons for decision

On 19 October 2022, a delegate of the Minister decided, under s 501CA(4) of the Migration Act, not to revoke the Cancellation Decision (the Non-Revocation Decision).[7] This is the reviewable decision before the Tribunal. The Applicant was notified of the Non-Revocation Decision by email on 21 October 2022.[8] A signed acknowledgement of the notification indicates it was hand delivered to the Applicant on 24 October 2022.[9] [7] R1, G3, page 7.[8] R1, G3, page 4.[9] R1, G26, page 121. The Applicant lodged his application for review of the Non-Revocation Decision On 25 October 2022.[10] The Tribunal is satisfied that the application was lodged within time, pursuant to s 500(6B) of the Migration Act.[10] R1, G2, page 3. On 20 December 2022, the Tribunal held a hearing before the Tribunal, differently constituted. On 13 January 2023, the Tribunal affirmed the Non-Revocation Decision.[11][11] R1, page 335-373. On 19 May 2023, the Federal Court of Australia found that the Tribunal had discounted a West Australian Government Department of Justice classification review which described the Applicant as a low risk of reoffending without any foundational material for that view and without affording the Applicant procedural fairness.[12] It was held that this amounted to a jurisdictional error.[13] The Court ordered that the matter be remitted to the Tribunal for determination according to law.[14][12] Rewha v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 748 at [36]; R1, page 374.[13] Rewha v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 748 at [38].[14] R1, page 374.ISSUES The issues before the Tribunal are:(a)whether 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 Cancellation Decision should be revoked.[15][15] See s 501CA(4) of the Migration Act. For the reasons below, the Tribunal has decided that the correct and preferable decision is that the Non-Revocation Decision be affirmed. THE HEARING AND THE EVIDENCE The hearing of the remitted application was held on 27 November 2023. The Applicant was self-represented. The Respondent was represented by Ms Daphne Jones-Bolla from Sparke Helmore Lawyers. Both Parties appeared via Microsoft Teams. The Tribunal notes the Applicant appeared from New Zealand. At the hearing, the Applicant made submissions, gave evidence and was cross-examined. No other witnesses were called. However, as noted at the hearing, the remittal bundle included the transcript of the previous Tribunal proceedings on 20 December 2022 at which Ms Stephanie Rewha (the Applicant’s sister), Ms Emma Green (the Applicant’s fiancé) and Ms Danielle Rewha (the Applicant’s daughter) gave evidence in support of the application for review of the Non-revocation Decision.[16] The Applicant confirmed at the hearing before the current Tribunal that while he was not calling witnesses he was seeking to rely on the evidence previously provided.[17] The Tribunal has had regard to the evidence provided by those witnesses at the previous hearing, statements previously provided by the Applicant and submissions made on his behalf by his then representative, Mr Glenister, of Counsel.[16] See [16]. [17] Transcript, page 5.

Ratio Decidendi

Legal Principle Established

There is no evidence before the Tribunal that the Applicant has engaged in acts of family violence. Accordingly, this consideration is not relevant in the Applicant’s circumstances and the Tribunal gives it no weight.The strength, nature and duration of ties to Australia This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Paragraph 8.3(1) of Direction No 99 provides that:Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. Paragraphs 8.3(2) and (3) of Direction No 99 direct decision-makers to consider the non-citizen’s ties to any children, and the strength, duration, and nature of any family or social links to members of the Australian community who are citizens, permanent residents or people who have an indefinite right to remain in Australia. The Applicant first visited Australia for a short period before moving to this country on 10 May 1995 when he was 23 years of age.[121] [121] R1, page 90. The Minister accepted that a decision not to revoke the cancellation of the Applicant’s visa may have an adverse effect on members of his immediate family in Australia including his partner Ms Green, his two step-children, his sister and his two adult children. The Minister noted all other members of his immediate family reside in New Zealand.[122][122] RSFIC2. The Tribunal has regard to the various submissions by members of the Applicant’s family and accepts that a non-revocation decision would have a significantly adverse effect on them. Olivia Papuni, the Applicant’s niece, wrote of the role the Applicant played as a familial leader and her hope he would resume this role in the future.[123] His sister Stephanie testified before the previous Tribunal that she, her sons and the family members would be upset if he returned to New Zealand and she would have to see him in New Zealand when she visited other family members there.[124][123] R1, page 314.[124] R1, page 437. The Applicant’s two adult children and his two grandchildren are resident in Australia. He raised his children as a single parent for 10 years after he and his wife split up and contends he is close to them. They both provided statements supporting the Applicant remaining in Australia.[125] His daughter, Danielle stated the Applicant is her best friend and she wants him to remain in Australia so that when she has children they can have a relationship with him. His son, Tawhiri, states that he wants the Applicant to be able to build a relationship with his grandchildren.[125] R1, pages 78-80, 312. The Applicant’s partner, Ms Green, described the difficulties she and her daughter’s are facing following the Applicant’s imprisonment and his return to New Zealand. She states that she has suffered emotionally and financially as have her daughters and that she hopes to travel to see the Applicant and to bring him back to Australia to settle with them.[126][126] A3.