Robertson and Minister for Home Affairs (Migration) - [2019] AATA 164

Robertson and Minister for Home Affairs (Migration) [2019] AATA 164 (18 February 2019)
Division:GENERAL DIVISION
File Number: 2018/7094
Re:Scott J Robertson
APPLICANT

AndMinister for Home Affairs
RESPONDENT

Decision
Tribunal:Senior Member M Griffin QC 
Date:18 February 2019
Place:Sydney

The decision of the Respondent made on 23 November 2018, being the decision of the delegate of the Minister for Home Affairs not to revoke the cancellation of the Applicant’s Class BB (Subclass 155) Resident Return visa under s 501(3A) of the Migration Act 1958, is set aside.
In substitution, the decision to cancel the Applicant’s Class BB (Subclass 155) Resident Return visa, is revoked.
............................[sgd]............................
Senior Member M Griffin QC
Catchwords
MIGRATION – Revocation of visa cancellation – failure to pass the character test – whether there is another reason why cancellation of the Applicant’s Class BB (Subclass 155) Resident Return visa should be revoked – Ministerial Direction No. 65 applied – primary considerations – protection of Australian community from criminal or other serious conduct – best interests of minor children in Australia – expectations of the Australian community – other considerations – strength, nature and duration of ties – extent of impediments if removed – decision under review set aside
Legislation
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
CASES
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction no.65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA paras 6.2, 6.3, 13.1, 13.1.1, 13.1.2, 13.2, 14.1, 14.2, 14.4, 14.5,
REASONS FOR DECISION
Senior Member M Griffin QC
18 February 2019
introduction

1. This is an application for review of a decision of a delegate of the respondent, made on 23 November 2018 under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) and notified to the Applicant on 26 November 2018, refusing to revoke an earlier decision made on 2 November 2017 pursuant to the requirements of s 501(3A) of the Act to cancel the Applicant’s Class BB (Subclass 155) Resident Return visa (the visa).
Background
2. The Applicant was born on 12 December 1983 in Scotland, and is a British national. He arrived in Australia, with his mother and stepfather, on 4 July 1987. He left Australia since that time only on one occasion (in 1995-1996), for a period of less than 2 months.
3. The Applicant has a daughter, born in 2012, from a relationship with Ms Belinda Fulham. Both Ms Fulham and the Applicant’s daughter are Australian citizens.
4. The Applicant’s mother and step-father also continue to live in Australia. It is said that the Applicant has no family or none that he knows, in Scotland (or, it is presumed, elsewhere in the UK).
5. The Applicant’s first conviction, for a property offence, dates from 2003 when he was 20 years old. His more recent convictions, for a broad range of offences including assault, custody of knife, drug, domestic violence, public nuisance, dishonesty, driving…

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.

Continue reading Robertson and Minister for Home Affairs (Migration)

Details

AGLC: Robertson and Minister for Home Affairs (Migration) [2019] AATA 164
Case: [2019] AATA 164
Decision Date: 18 February 2019

CaseChat Overview and Summary

This matter concerned an application by the Applicant, Robertson, to revoke the mandatory cancellation of his Class BB (Subclass 155) Resident Return visa. The cancellation had been based on the Applicant failing to pass the character test. The Minister for Home Affairs, represented by the Respondent, had refused to revoke the cancellation. The case was heard by Senior Member M Griffin QC.

The primary legal issue before the Tribunal was whether there was another reason why the cancellation of the Applicant's visa should be revoked, applying Ministerial Direction No. 65. This involved weighing several primary considerations, including the protection of the Australian community from criminal or other serious conduct, the best interests of any minor children in Australia, and the expectations of the Australian community. The Tribunal also considered other factors such as the strength, nature, and duration of the Applicant's ties to Australia and the extent of impediments he would face if removed.

The Tribunal reasoned that while the Applicant's past offending, including domestic violence, was serious, it was situational and unlikely to be repeated given his changed circumstances and cessation of the relationship with the victim. The Tribunal found the Applicant to be at minimal risk of re-offending. Crucially, the Tribunal determined that the best interests of the Applicant's minor daughter weighed most heavily in favour of revoking the visa cancellation. This consideration, combined with the significant length of time the Applicant had resided in Australia, outweighed all other contrary considerations.

Consequently, the Tribunal set aside the decision of the Respondent not to revoke the visa cancellation and, in substitution, revoked the cancellation of the Applicant's Class BB (Subclass 155) Resident Return visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

72. The Tribunal has concluded that the Applicant is at minimal risk of re-offending. Therefore, specifically, he is not an unacceptable risk of re-offending. Taking all other relevant factors and each relevant consideration into account, including the Tribunal’s assessment that Consideration 3 weighs against the Applicant, the Tribunal ultimately concludes that Consideration 2, the best interests of the minor child, in this particular case the Applicant’s daughter, weighs most heavily in favour in these proceedings to revoke the revocation of the Applicant’s visa. The weight accorded to Consideration 2, together with the length of time the Applicant has lived in Australia; outweigh all other considerations to the contrary.decision 73. The decision of the Respondent made on 23 November 2018, being the decision of the delegate of the Minister for Home Affairs not to revoke the cancellation of the Applicant’s Class BB (Subclass 155) Resident Return visa under s 501(3A) of the Migration Act 1958, is set aside. 74. In substitution, the decision to cancel the Applicant’s Class BB (Subclass 155) Resident Return visa, is revoked.

Ratio Decidendi

Legal Principle Established

28. The considerations at paragraph 14.1 of Direction 65 include (but are not limited to):a.(a) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has Convention and Protocol non-refoulement obligations (para 14.1(1));a.(b) The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen's visa (para 14.1(2));b.(c) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled) (para 14.1(3));c.(d) Where a non-citizen makes claims which may give rise to international nonrefoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked (para 14.1(4));d.(e) Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated (para 14.1(6)).Strength, nature and duration of ties 34. The first primary consideration consists of 2 matters: (i) the nature and seriousness of the Applicant’s conduct, and (ii) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. 35. The Respondent submitted that without seeking to overstate the seriousness of the Applicant’s offending, the frequency and cumulative effect of his offences since 2011, many of which originally merited a bond only, has been reflected by the custodial sentences he ultimately received. 36. The Respondent submitted that the Applicant’s offending appears to be the result, or closely related to, his substance abuse. 37. The offences of domestic violence are objectively serious. They were, however, committed against one person, the witness and former partner of the Applicant. They are now both reconciled and no longer in a relationship. The Tribunal accepts that they now co-operate amicably for the benefit of their child. Further, the Tribunal accepts that the domestic violence, although serious, occurred on three occasions encompassing four offences. 38. Domestic violence is recognised and regarded by society today as a serious matter and must never be condoned. However, the Tribunal is of the view that the offences were situational rather than being broadly or community based. The Tribunal is satisfied there is sufficient evidence to support the view that the Applicant, relinquishing his relationship with his former partner, is unlikely to commit acts of this kind in the future.