Roberts and Minister for Home Affairs (Migration)

Case [2018] AATA 3970

Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 (10 October 2018)

Division:GENERAL DIVISION

File Number(s):      2018/4345

Re:Shaun Roberts

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:10 October 2018

Date of written reasons:        23 October 2018

Place:Sydney

The decision of the Minister’s delegate, made on 6 July 2018, to refuse the issue of the visa applied for is set aside and remitted to the Minister for reconsideration with a direction that the visa applied for be not refused on character grounds under section 501 of the Migration Act.

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

Chris Puplick AM, Senior Member

CATCHWORDS

MIGRATION – visa refusal  – character test – criminal record – failure to disclose convictions in application  – driving with excess alcohol in system – driving offences – damaging property – offences involving violence –  primary and other considerations under Ministerial Direction No. 65 – protection of the Australian community – best interests of minor children in Australia – expectations of the Australian community – Impact on family members – Impact on Australian business interests – set aside and remitted with direction

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Legal Aid, Sentencing and Punishment of Offenders Act 2012 (UK)

Migration Act 1958 (Cth) ss 501

Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)

Migration Legislation Amendment (Strengthening of Provisions Related to Character and Conduct) Bill 1998 (Cth)

Rehabilitation of Offenders Act 1974 (UK)

CASES

Aciek and Minister for Home Affairs (Migration) [2018] AATA 2755

Alam v Minister for Immigration and Border Protection [2017] AATA 1233 at [75]

Ali Reza Denizgezen v Minister for Immigration and Border Protection (Migration) [2016] AATA 727

Applicant in WAD 531/2016 v Minister for Immigration and Border Protection [2018] FCA 27

Asir Intesir v Minister for Immigration and Border Protection (Migration) [2017] AATA 503

Ayache v Minister for Immigration and Border Protection [2018] AATA 310

Bowdler and Minister for Immigration and Border Protections (Citizenship) [2018] AATA 347

BFXK v Minister for Immigration and Border Protection [2018] AATA 886

Bushell v Repatriation Commission [1992] HCA 47

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] 24 ALR 307

Dinkha v Minister for Home Affairs [2018] AATA 3037

Do and Minister for Immigration and Border Protection [2016] AATA 390

Drake v Minister for Immigration and Ethnic Affairs [1979] 46 FLR 409

Fu (Migration) [2018] AATA 732

Furlong and Minister for Immigration and Border Protection (Migration) [2017] AATA 3014

G v Minister for Immigration and Border Protection [2018] FCA 1229

Godley v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 774

Gungor v Minister for Immigration and Ethnic Affairs (1980) 3 ALD 225

Irani and Minister for Immigration and Border Protection (Migration) [2017] AATA 3051

Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] 139 ALR 84

Jianri Fang v Minister for Immigration and Border Protection [2018] AATA 3686

JRJZ v Minister for Home Affairs [2018] AATA 3687

KDSP v Minister for Immigration and Border…

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AGLC
Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970
Case
[2018] AATA 3970
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Shaun Bradley Roberts against the Minister for Home Affairs' decision to refuse him a Skilled – Nominated (Permanent) (Class SN) visa. Mr Roberts, a UK national who arrived in Australia in 2014, had answered "YES" to a question on his visa application regarding previous convictions, but provided limited detail. The Minister's delegate subsequently formed the view that Mr Roberts did not pass the character test under section 501(6)(d) of the Migration Act 1958, leading to the visa refusal. Mr Roberts appealed this decision to the Tribunal.

The primary legal issue before the Tribunal was whether Mr Roberts satisfied the character test as defined by the Migration Act 1958. This required the Tribunal to consider Mr Roberts' past criminal conduct, including driving offences involving excess alcohol, driving while disqualified, failing to stop after an accident, and offences involving violence, in light of the criteria set out in section 501(6) of the Act. The Tribunal was also required to assess the weight to be given to various primary and other considerations under Ministerial Direction No. 65, such as the protection of the Australian community, the best interests of minor children in Australia, and the expectations of the Australian community.

The Tribunal reasoned that while Mr Roberts had a criminal record, including offences involving violence and driving under the influence, these convictions were largely spent under UK legislation at the time of his visa application. The Tribunal considered the nature of the offences, noting that the specific alcohol levels for his driving offences were not provided, and that Mr Roberts had offered explanations relating to his maturity and emotional state at the time of the offences. It also took into account numerous character references provided by his employer, colleagues, and former partner, which attested to his good character, work ethic, and remorse for his past actions. The Tribunal found that the evidence did not establish a significant risk of future criminal conduct or that Mr Roberts would be a danger to the Australian community.

The Tribunal set aside the delegate's decision to refuse the visa and remitted the matter to the Minister with a direction to grant the visa. This outcome was based on the Tribunal's assessment that, despite the criminal history, Mr Roberts had demonstrated he passed the character test, particularly when considering the mitigating factors and positive character evidence presented.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

These reasons are published in accordance with undertakings given on 10 October 2018 when the decision of the Tribunal was given orally at the conclusion of the hearings. The text of that oral decision is attached as an Appendix to these reasons.BACKGROUND Shaun Bradley Roberts was born (in 1986) in the United Kingdom, in Wales, and arrived in Australia on 17 May 2014. He was the holder of a Temporary Business Entry Visa class UC 457 which was valid until 8 August 2019.[1][1] Section 501 – G Documents at [25]. In the United Kingdom he obtained qualifications as a skilled bricklayer and worked at this trade, either as an apprentice or as a qualified tradesman, virtually continuously from 2003 until 2104 shortly before his departure for Australia.[2][2] Ibid at [36-39]. On 18 October 2016 Mr Roberts applied for a Skilled – Nominated (Permanent) (Class SN) visa. The application form was completed and submitted on Mr Robert’s behalf by his authorised migration agent. On that application form there is a question which reads:“Has the applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records)? To this Mr Roberts answered “YES”. In response to a further question on the form to provide details he stated:“Please refer to UK Police Clearance, Statutory Declaration providing further explanation and two character references attesting to the Applicant’s good character.”[3][3] Ibid at [40]. On 2 May 2018 the Minister (via his Delegate) wrote to Mr Roberts informing him that the Minister was considering a refusal of his visa application under section 501(6)(d) of the Migration Act 1958 (the Act) on the basis that Mr Roberts did not pass the “character test” imposed under that legislation. The letter afforded Mr Roberts the opportunity to respond to the Minister’s notice of intention.[4][4] Ibid at [107-110]. A response, lodged on his behalf by a Migration Agent was lodged as required, although the document in question is undated.[5] However correspondence from the Department of Home Affairs suggests that this material was received on 28 May 2018.[6][5] Ibid at [111-114].[6] Ibid at [6]. After giving those representations due consideration the Minister’s delegate decided, on 6 July 2018 to refuse the grant of a visa[7] and Mr Roberts was so notified by letter of 1 August 2018.[8][7] Ibid at [9].[8] Ibid at [6]. Mr Roberts lodged an appeal against that decision with this Tribunal on 3 August 2018, by which time he was being held in immigration detention at Villawood.[9] [9] Ibid at [1].NOTIFICATION OF DECISION TO MR ROBERTS The letter of 1 August (see above) was “delivered” electronically to Mr Roberts’ migration agent. The document states:“Method of Delivery: Email: (name)@carman-associates.com.au.” This is the correct address. However in the process of transmission, the email was addressed to:(different name)@carmen-associates.com.au The substitution of one name for another prior to the company address is a matter of no relevance, both were employees at that address. The problem arose however in the transposition of the letter “e” for the letter “a” in the word “carman.” As a result of this error the notification of the refusal decision was not received by Mr Roberts.

Evidence

Evidence Before The Court

This formulation was expressly approved in the appeal judgement of the Federal Court which added that determinations should not be “concerned with whether the conduct has some temporal result, such as the incurring of a conviction, but with the light that the conduct throws in the actor’s character.”[52][52] Minister for Immigration and Ethnic Affairs v Baker [1997] 45 ALD 136 at [141].EVIDENCE IN SUPPORT OF MR ROBERTS In support of his application Mr Roberts has submitted a number of character references and testimonials. ·Mr Taylor, his employer writes of Mr Roberts’ skill as a bricklayer and of his economic value to his business, particularly in time of a “construction boom in NSW.”[53] In an updated reference Mr Taylor describes the applicant as “reliable, trustworthy and hardworking.” Importantly, he outlines his knowledge of Mr Roberts’ previous offences in the United Kingdom, attests to his remorse and indicates that he has never observed any aggressive behaviour on the part of Mr Roberts and his adherence to the company’s no-drinking policies monitored by random breath testing. It is a strong endorsement for Mr Roberts.[54]·A fellow employee, Mr Cowen writes of Mr Roberts’ professionalism, team management and organisational skills. He states that his job and others may be at jeopardy if Mr Roberts were to be deported. He does not display any knowledge of Mr Roberts’ offences.[55]·Nor does Mr Harris, a secondary school teacher who prides himself “on being a good judge of character.” He states that Mr Roberts is honest and trustworthy, a good communicator, with a sense of humour and totally unlikely to commit any sort of criminal offence.[56]·Similar positive references are provided by Mr Sacilotto (a company director) and Mr Brady (a consultant in the construction recruitment area). Both speak of Mr Roberts’ good character, professional skills and generally ethical approach to life.[57] Finally there is a reference from Mr Roberts’ former flat-mate Mr Gittins describing him as a “good role model due to his great work ethic.”[58][53] Applicant’s Submission at Tab [G]. Letter dated 15 January 2017.[54] Section 501 – G Documents at [137-138].[55] Section 501 – G Documents at [139].[56] Section 501 – G Documents at [140].[57] Section 501 – G Documents at [142] and [143] respectively.[58] Section 501 – G Documents at [106]. His former partner, Ms Deb Marks, writes that although the couple no longer share an intimate relationship, they remain close friends and associates and that Mr Roberts is assisting with the building of a granny flat on her property where he will continue to live and where he will also maintain a close established relationship with her parents. She also remarks on Mr Roberts’ calm and cooperative behaviour when Border Force Officers arrived at their then shared home at 5.15 am on 1 May 2018 and took him into immigration detention – wrongfully, as it turned out. She is aware of his past offences and states that these are “not a true representation of the man he is today.”[59][59] Section 501 – G Documents at [144-145].

Decision

Reasons for decision

It appears that he was then detained again and placed back in Villawood on 1 August 2018.THE DECISION TO REFUSE THE VISA The power of the Minister (or their Delegate) to refuse or cancel a visa on character grounds is set out in section 501 of the Migration Act 1958 (the Act) as follows:501 Refusal or cancellation of visa on character groundsDecision of Minister or delegate—natural justice applies (1) 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.Note: Character test is defined by subsection (6). (2) The Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test.Decision of Minister—natural justice does not apply (3) The Minister may: (a) refuse to grant a visa to a person; or (b) cancel a visa that has been granted to a person;if:(c) the Minister reasonably suspects that the person does not pass the character test; and(d) the Minister is satisfied that the refusal or cancellation is in the national interest. (3A) The Minister must cancel a visa that has been granted to a person if:(a) the Minister is satisfied that the person does not pass the character test because of the operation of:(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or(ii) paragraph (6)(e) (sexually based offences involving a child); and(b) the person 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. (3B) Subsection (3A) does not limit subsections (2) and (3).(4) The power under subsection (3) may only be exercised by the Minister personally.(5) The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3) or (3A).Character test(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(aa) the person has been convicted of an offence that was committed:(i) while the person was in immigration detention; or (ii) during an escape by the person from immigration detention; or(iii) after the person escaped from immigration detention but before the person was taken into immigration detention again; or(ab) the person has been convicted of an offence against section 197A; or (b) the Minister reasonably suspects:(i) that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and(ii) that the group, organisation or person has been or is involved in criminal conduct; or(ba) the Minister reasonably suspects that the person has been or is involved in conduct constituting one or more of the following:(i) an offence under one or more of sections 233A to 234A (people smuggling);(ii) an offence of trafficking in persons;(iii) the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern; whether or not the person, or another person, has been convicted of an offence constituted by the conduct; or (c) having regard to either or both of the following:(i) the person’s past and present criminal conduct;(ii) the person’s past and present general conduct; the person is not of good character; or(d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:(i) engage in criminal conduct in Australia; or(ii) harass, molest, intimidate or stalk another person in Australia; or(iii) vilify a segment of the Australian community; or(iv) incite discord in the Australian community or in a segment of that community; or(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way; or (e) a court in Australia or a foreign country has:(i) convicted the person of one or more sexually based offences involving a child; or(ii) found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; or(f) the person has, in Australia or a foreign country, been charged with or indicted for one or more of the following: (i) the crime of genocide;(ii) a crime against humanity;(iii) a war crime;(iv) a crime involving torture or slavery;(v) a crime that is otherwise of serious international concern; or(g) the person has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or(h) an Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force.Otherwise, the person passes the character test.

Ratio Decidendi

Legal Principle Established

The legislative framework for the management of spent convictions in England and Wales is contained in the Rehabilitation of Offenders Act 1974 (UK) as amended by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (UK). This legislation provides for convictions in England and Wales to become “spent” after relatively short periods of time. Section 139 of the latter Act is such that Mr Roberts’ fines would have been expunged from the record after a period of six months and his community service orders after a period of 12 months. This means that in relation to all but one of his offences, the rehabilitation/expiry period would have been completed by June 2011 and his offence of “battery” for which he received only a fine would have been rehabilitated/expired by December 2014, a date which overlaps with his arrival in Australia in May 2014 but which was well and truly completed by the time of his current visa application in October 2016.CONSIDERATION OF THE NATURE OF MR ROBERTS’ OFFENCES The Tribunal has an obligation to consider the nature of Mr Roberts’ offences and to come to some conclusion about their seriousness if they are to be used as the basis for making a decision as significant as the refusal of a visa and the attended prospect of deportation. Mr Roberts’ offences are essentially related to driving offences and to issues of physical violence. The driving offences include two related to driving “with excess alcohol”. There is no data before the Tribunal to establish what the level of “excess” was (in English and Welsh legislation) so that it can be compared with the graded system of proscribed content of alcohol offences (low/medium/high/range) used in New South Wales. Of course any level of alcohol in excess of the statutory limits is impermissible and a matter of concern for the Tribunal. Mr Roberts states that on the first of these occasions, at age 17 he was stranded at a music festival and drove, knowing he should not have. On the second occasion he says that he was detected with excess alcohol in his system the morning after a night of drinking and would not have driven had he realised that the 8 hour gap which he describes was insufficient for the alcohol to have passed through his system.[84][84] Section 501 – G Documents at [115]. In Zaya Deputy President Kendall rightly deprecated “the tendency socially to dismiss laws that penalise drivers who drive under the influence as unnecessary or unfair.”[85] In Bowdler I made a point of reviewing the considerable weight of emphasis given by this Tribunal generally to assessing the risk to the Australian community posed by individuals who persistently and with disregard for the traffic laws endanger the lives and safety of other people.[86][85] Zaya and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 366 at [54].[86] Bowdler and Minister for Immigration and Border Protections (Citizenship) [2018] AATA 347. Mr Roberts also had offences related to driving while disqualified and failing to stop after an accident. Again Mr Roberts offers an explanation relating to his degree of maturity (aged 20) and his emotional state at the time.