Ruangsantikornkul and Minister for Home Affairs (Migration)

Ruangsantikornkul and Minister for Home Affairs (Migration) [2018] AATA 4203 (9 November 2018)
Division:GENERAL DIVISION
File Number: 2018/4939
Re:Watsapol Ruangsantikornkul
APPLICANT

Minister for Home AffairsAnd
RESPONDENT

DECISION
Tribunal:Dr L Bygrave, Member
Date:9 November 2018
Place:Sydney

The Tribunal affirms the decision under review.

..........................[sgd]..............................................
Dr L Bygrave, Member
CATCHWORDS
MIGRATION – revocation of visa cancellation – applicant does not pass character test – whether another reason why the original cancellation decision should be revoked – Ministerial Direction No. 65 applied – primary considerations – protection of the Australian community – best interests of minor children in Australia – expectations of the Australian community – other considerations – strength, nature and duration of ties to Australia – extent of impediments if removed – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) – ss 499, 501, 501CA
SECONDARY MATERIALS
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA - paragraphs 6, 7, 8, 13, 14
REASONS FOR DECISION
Dr L Bygrave, Member
9 November 2018

The applicant, Mr Watsapol Ruangsantikornkul, first arrived in Australia in 1998 on a student (subclass TU-560) visa. He was granted a class BS (subclass 801) partner visa (visa) on 17 September 2012.
The Department of Home Affairs (the Department) issued the applicant with a notice on 24 January 2018 advising that his visa had been cancelled under section 501(3A) of the Migration Act 1958 (Cth) (the Act). This decision was made on the basis that the applicant did not pass the character test because he had been sentenced to a term of imprisonment of 12 months or more and therefore had a “substantial criminal record” as defined in section 501(7) of the Act.
On 3 February 2018, the applicant submitted a request for revocation of the mandatory visa cancellation decision pursuant to section 501CA of the Act.
On 17 August 2018, a delegate of the Minister for Home Affairs (the Minister) decided not to revoke the visa cancellation decision and, on 30 August 2018, the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of this decision.
The matter was heard in Sydney on 26 October 2018. The applicant did not have legal representation. He and his wife attended the hearing in person and gave evidence.
RELEVANT LEGISLATION AND POLICY
The power to revoke a visa cancellation
Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied the person does not pass the character test because of the operation of sections 501(6) and 501(7).
Section 501(6) defines the character test. Relevantly, a person does not pass the character test if the person has a “substantial criminal record” as defined by section 501(7). Section 501(7) of the Act provides that, for the purposes of the character test, a person has a “substantial criminal record” if the person has been sentenced to a term of imprisonment of 12 months or more.
Pursuant to section 501CA(4) of the Act, the Minister may revoke the original cancellation decision if the Minister is satisfied that the person passes the character test; or there is another reason why the original decision should be revoked. This is a discretionary power.
The applicant does not pass the character test in section 501(6) of the Act because his criminal record, set out in part in paragraph 22 below, meets the statutory definition of a “substantial criminal record” in section 501(7) of the Act. I must therefore consider whether there is another reason to revoke the original cancellation decision.
The power of the Tribunal to review the decision to cancel the applicant’s visa is provided by section 500 of the Act. Under section 499(1), the Minister has given written directions as to the exercise of the power to review the decision. Section 499(2A) of the Act provides that these directions must be complied with. The relevant direction is Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA which commenced on 22 December 2014 (the Direction).
Direction No. 65
Paragraph 7 of the Direction sets out how the discretion is to be exercised. It states:
Informed by the principles in paragraph 6.3, a decision-maker:
…must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Under the heading of “General Guidance” at paragraph 6.2, the Direction states in part:
The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below [in paragraph 6.3] are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
In paragraph 6.3, the Minister sets out the principles that provide a framework to approach the task of deciding whether to revoke the decision to cancel a visa. The principles are:
(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 vulnerable members of the community such as minors, 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.
Paragraph 8 of the Direction requires the decision-maker to take into account the primary and other considerations relevant to the individual case. Primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh other primary considerations. In applying the considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
Part C of the Direction sets out the primary considerations the Tribunal must take into account in deciding whether to revoke the cancellation of the applicant’s visa as follows:
(a)protection of the Australian community from criminal or other serious conduct;
(b)the best interests of minor children in Australia; and
(c)expectations of the Australian community.
Other considerations in Part C relevant to this matter are:
(a)the strength, nature and duration of ties to Australia; and
(b)the extent of impediments if removed.
EVIDENCE
The applicant was born in 1978 in Thailand. He completed the equivalent of year 12 high school in Thailand and came to Australia in 1998 (aged 20 years).
The applicant told the Tribunal that he initially studied English at TAFE on a student visa and lived with his uncle in Sydney. He returned to Thailand for a short period in 1999-2000 and, when his student visa expired on 5 February 2001, he then remained in Australia. The applicant explained that he came from a poor family in Thailand and is the only son of his parents. His parents could not afford to pay for further education in Australia and he worked in Australia as a cleaner to provide financial assistance to his parents and older sister who reside in Thailand. The applicant stated that he has continued to provide financial support for his family in Thailand, including his parents and his sister who is now divorced and has two children (the applicant’s niece and nephew).
The applicant first met his (now) wife in 1985 when they both lived in Thailand. They met again in Australia in 2001 and commenced a relationship, residing together from 2006. The applicant and his wife married in 2009 and the applicant applied for a spouse (subclass 820) temporary visa that was granted on 5 August 2010. He was subsequently granted his permanent class BS (subclass 801) partner visa on 17 September 2012.
The applicant has worked in Australia as a cleaner since 2001, and he and his wife purchased an apartment in 2015.
In his evidence to the Tribunal, the applicant said he initially used methamphetamine (ice) on occasional social situations but began to heavily use ice from mid-2015. The applicant explained he “lost control” due to using ice; his “body was numb” and, at the time, he was not aware of what he was doing.
Criminal record
The applicant’s criminal record is detailed in his National Police Certificate dated 1 May 2018, which includes the following offences:
·Court date: 20 April 2016. Offence: larceny.
Court result: $500 fine.
·Court date: 29 March 2017. Offences: enter prescribed premises of any person without lawful excuse; dishonestly obtain property by deception; make/furnish a statement which is false/misleading; larceny value <= $2000; remain in building/land with intent commit indictable offence; break and enter house etc steal value <= $60,000; enter inclosed land not prescribed premises without lawful excuse; break and enter dwelling-house etc with intent (steal).
Court result: The applicant pleaded guilty and was sentenced to 14 months imprisonment commencing 8 August 2016 and concluding 7 October 2017, with a non-parole period of seven months and release subject to supervision.
·Court date: 12 May 2017. Offences: robbery armed with offensive weapon; break and enter house etc steal value <= $60,000.
Court result: The applicant pleaded guilty and was sentenced to imprisonment of three years and six months commencing on 8 March 2017 and concluding on 7 September 2020, with a non-parole period of two years with conditions and subject to supervision.[1]
[1] Exhibit G - G02, pages 21-24.
The applicant’s Conviction, Sentences and Appeals Report by the NSW Department of Corrective Services records he has been sentenced to a total sentence period of four years and one month, commencing on 8 August 2016, with a non-parole period of two years and seven months expiring on 7 March 2019.[2]
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL AND OTHER SERIOUS CONDUCT
[2] Exhibit G - G02, page 64.
Paragraph 13.1 of the Direction outlines the Government’s commitment to protecting the Australian community from harm by non-citizens and requires that I consider:
(a)the nature and seriousness of the applicant’s conduct to date; and
(b)the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.
The nature and seriousness of the applicant’s conduct to date
The applicant’s criminal record, set out in paragraph 22 above, shows he appeared before a Court on three occasions from April 2016 to May 2017, charged with at least 23 criminal offences. His record demonstrates a relatively short-term, intense pattern of repeated and serious offending.
The applicant’s criminal offending includes a violence-related incident, robbery armed with offensive weapon, for which he was sentenced to imprisonment for three years and six months. The sentencing remarks of Judge Bennett in the District Local Court on 12 May 2017 described the circumstance of the offence as follows:
On 29 July 2016 the victim was at work in a coffee shop in Central Park Mall in Chippendale. She was there accompanied by a co-worker who left the coffee shop for a short time at which point the offender, about 4:15pm, entered and pressed into the victim’s back a mint tin. She felt the hard surface of that in her back. He repeated several times “give me your money” and included the word “darling”. She was fearful for her safety and therefore opened the till. The offender continued to press the metal tin into the victim’s back and with one hand removed somewhere between $350 and $400 from the till. He told her not to scream and then fled from the cafe…
On 8 August 2016 the police learned that the offender was at his wife’s unit, they attended and arrested him. At the Ryde Police Station he was entered into custody and advised of his rights, thereafter he participated in an electronically recorded interview and admitted his crime.[3]
[3] Exhibit G - G02, pages 58-59.
Judge Bennett’s sentencing remarks on 12 May 2017 also referred to the applicant’s prior offending behaviour and evidence, noting:
…since that time he was prosecuted for various other offences, some of which were taken into account at the determination of sentence with the result that he suffered an aggregate sentence of 14 months imprisonment including a non-parole period of seven months commencing on 8 August 2016. But for these offences he would have been eligible, indeed entitled, to be released to parole at the expiration of the non-parole period on 7 March 2018. The sentence I intend to impose today shall commence on 8 March 2017.
The offender gave evidence. I accept his expressions of contrition and remorse. I accept that there are prospects for rehabilitation. He said that because of his misuse of drugs, specifically methylamphetamine, his marriage suffered and he simply stopped going home for a period of time.[4]
[4] Exhibit G - G02, pages 59-60.
The applicant’s evidence to the Tribunal confirmed that his offending behaviour related to his use of ice. His conviction of larceny on 20 April 2016 resulted in him losing his employment as a cleaner. The applicant acknowledged that further convictions of larceny, dishonestly obtain property by deception, and break/enter all related to him stealing property to sell to pay for his ice addiction.
I found the applicant truthful and remorseful in his evidence. He accepted responsibility for his behaviour and declined to use problems such as financial stress or expectations of his family in Thailand to excuse his behaviour. He accepted that he alone was responsible for his ice addiction and he told the Tribunal that “at the time, I didn’t know what I did and it is only now that I realise what I did”.
There is evidence before the Tribunal that the applicant remained in Australia unlawfully after his student visa expired in 2001 and prior to him being granted a partner visa in 2010. The applicant admitted he stayed in Australia after 2001 and knew this was illegal. He said that, at the time, he could not afford a visa and needed to work hard to send money to Thailand to support his family there. There is substantial documentation before the Tribunal that shows the applicant has declared this history to the (then named) Department of Immigration and Citizenship in 2010 when he made an application for a partner visa.[5]
[5] Exhibit R1.
Considering the relevant factors set out in paragraph 13.1.1 of the Direction, I find that the applicant’s record of criminal offences in Australia includes serious and violent offences. He has received sentences of imprisonment for his offending, including three years and six months for the offence of robbery armed with offensive weapon. I also find the frequency of the applicant’s offending reflects a short, intense period during which he was charged with at least 23 offences.
While I accept the applicant’s evidence, supported by the sentencing remarks of the Court, that his offending was due to his ice use, I must also have regard to the nature and seriousness of his criminal offending. This is reflected in the substantial sentences – periods of 14 months and three years and six months – imposed by the Courts.
I am satisfied that the applicant’s criminal offending is a matter of serious concern. I find that the nature and seriousness of his offending weighs heavily against him.
The risk to the Australian community should the applicant commit further offences or engage in other serious conduct
In an undated written statement, the applicant noted:
In 2015, I fell into a bad social situation, which was my introduction to the drug ICE. This turned my life upside down and turned me into a person I didn’t recognise. This led me to committing the offences which brought me into custody. Since this time, my life in custody has allowed me to realise the horrific situation I had caused and the impacts this had on the victim of my offence as well as the wider community. I have been working with parole regarding my previous drug use and offending behaviour and have attempted to complete programs to address my drug use. Since my admission into custody, I’ve maintained employment, haven’t used drugs and have worked towards bettering myself for my release to the community.[6] [reproduced as original]
[6] Exhibit G - G02, page 69.
This is consistent with the sentencing remarks of Judge Bennett on 12 May 2017, who stated:
[The applicant] worked as a cleaner in this country for some seven years, he is now a permanent resident in Australia… His misuse of drugs ultimately impacted on his work and he simply failed to continue with it and he embarked upon these offences, including those upon which he has already been sentenced to facilitate his misuse of drugs…
I accept the evidence given by the offender that he is anxious to address his drug use and is looking to enter rehabilitation when given the opportunity to do so…[7]
[7] Exhibit G - G02, pages 60-61.
I note Judge Bennett referred the applicant to the “compulsory drug treatment program which is conducted at Parklea Correctional Centre”.[8]
[8] Exhibit G - G02, page 62.
At the Tribunal hearing, the applicant said that since his incarceration he has participated in a process of assessment for a drug treatment program and the EQUIPS program, but has not undertaken any rehabilitation courses. It is not clear to the Tribunal why the applicant has not had an opportunity to participate in drug rehabilitation. The applicant said in his evidence that he was deemed “unsuitable” and “he needed to work in prison to provide some financial help to his wife”. However, the applicant expressed a desire, once he is released from prison, to work with his parole officer and undertake a rehabilitation program.

The applicant’s wife wrote in a statement on 14 February 2018 that “…whatever reason that led him to make this mistake, I do believe that the mistake will be the most crucial lesson in his life. Therefore I would like to ask for one more chance for him to reform, adjust, and restart his life again.”[9]
[9] Exhibit G - G02, page 52.
I accept, based on all the evidence before the Tribunal, that the applicant’s offending was as a result of his ice addiction. However, there is nothing before me, apart from the verbal assurances of the applicant and his wife that shows the applicant will not commit further offences if he is released into the Australian community. Unfortunately, the weight I must place on the applicant’s assurance is limited both by his past behaviour and his lack of undertaking any rehabilitation.
In considering the harm and potential risk to the Australian community if the applicant were to reoffend in the future, I am mindful of the nature and seriousness of his past criminal behaviour. I cannot be satisfied on the basis of the evidence before the Tribunal that the applicant will not reoffend if he is released into the Australian community.
On balance, I find that the protection of the Australian community weighs against revoking the cancellation decision.
PRIMARY CONSIDERATION 2 – THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
The primary consideration of “best interests of minor children in Australia” is not applicable to this matter as there are no children in Australia who are relevant to this application.
PRIMARY CONSIDERATION 3 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 13.3(1) of the Direction provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
Having regard to the principles set out in paragraph 6.3 of the Direction, set out in paragraph 13 above, I am mindful the Australian community anticipates a nuanced and balanced approach to considering the extent to which the applicant is a member of the Australian community even though he is not a citizen. The deliberation of Australian community expectations involves “bringing appropriate perspective and proportionality to bear in the assessment of risk.”[10] I therefore consider any positive contributions the applicant has made to society, such as employment, community activities and/or family relationships; and weigh this against his adverse and antisocial behaviour.
[10] Anaki and Minister for Immigration and Border Protection [2016] AATA 693, [89].
The applicant has resided in Australia since 1998. He has completed study and participated in paid employment as a cleaner for more than 15 years.
The applicant’s wife became an Australian citizen in 2013. In her written statement dated 14 February 2018, she stated that she and the applicant have been together for 17 years and he is her only family member in Australia. She described the applicant as:
…a wonderful husband as he has always been supporting me in any circumstances… He is a hard-working person, generous, and responsible. It is no doubt that he is loved by [his] boss, colleagues and our friends. We all wondered about his mistake and we believe that he did not intend to do it.[11]
[11] Exhibit G - G02, page 51.
The applicant also provided a character reference from his uncle, aunt and cousin, who noted he is kind, generous, hard-working, honest and willing to help and support his community, employer, colleagues, friends and relatives.[12] A reference from a former colleague described the applicant as a “very generous and considered person and a very hard worker”.[13]
[12] Exhibit G - G02, page 55.
[13] Exhibit G - G02, page 56.
The Australian community may have some sympathy for the applicant in terms of his commitment to financially supporting his family, both in Thailand and Australia. However, the applicant’s short and intense period of committing serious offences shows a disregard for the Australian law and judicial system.
In assessing all the relevant evidence against the requirements of the Direction, I find the applicant’s circumstances cannot excuse his criminal offending. On balance, I am satisfied the third primary consideration counts against revoking the mandatory cancellation of the applicant’s visa.
OTHER RELEVANT CONSIDERATIONS IN DIRECTION NO. 65
Paragraph 14 of the Direction sets out other considerations that must be taken into account in deciding whether to revoke the visa cancellation. Relevant considerations in this matter are the strength, nature and duration of the applicant’s ties to Australia, and extent of impediments if he is removed.
There is no evidence before the Tribunal that other considerations including international non-refoulement obligations, the impact on Australian business interests and the impact on victims are relevant to these proceedings.
Strength, nature and duration of ties to Australia
In considering the strength, nature and duration of the applicant’s ties to Australia, paragraph 14.2(1) of the Direction provides that:
Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
At the Tribunal hearing, the applicant confirmed that his wife and uncle are his only family members in Australia. His parents, sister and her children all reside in Thailand.
The applicant has lived in Australia for 20 years; he has returned to Thailand on five short occasions to visit family. In his request for revocation form, the applicant stated:
I end up in jail and I left my wife outside which is hard life for her and also she have no one…of family with her, I have two uncle here but they never come down to help her with anything she have to work full-time and a part-time at night to survive and she have to visit me every weekend in jail… She hope that I will come out and help her and make our dream come [true], have children… The reason of revocations is very important for us. It is our life in the future.[14]
[14] Exhibit G - G02, pages 35-36.
The applicant’s wife, an Australian citizen, outlined the hardship caused by their situation:
These days I have to live by myself in this situation; it is very difficult for me to handle my routine. I have to work very hard in order to earn enough to cover all expenses such as mortgage, household bills and other debts. My financial situation is going to break down.[15]
[15] Exhibit G - G02, page 51.
The applicant’s wife confirmed to the Tribunal that the situation of her husband’s ice use, incarceration and cancellation of his visa has taken an emotional toll on her. However, she showed commitment to their relationship and complete support of the applicant.
Given the strength of the applicant’s ties to his family and especially his wife in Australia, I am satisfied that consideration of the applicant’s ties to Australia weighs strongly in his favour.
Extent of impediments if the applicant is removed
The extent of impediments if the applicant is removed from Australia relies on his capacity to reside in Thailand. Pursuant to paragraph 14.5 of the Direction, I must consider the applicant’s age and health, whether there are any substantial language or cultural barriers, and any available social, medical and/or economic support.
The applicant is 40 years old. He told the Tribunal he has no health problems, speaks the Thai language fluently and confirmed there are no cultural barriers to him living in Thailand.
I accept the applicant’s evidence that he has financial responsibilities to his family, both in relation to his wife in Australia and the payment of their mortgage, and to his parents and sister. I also acknowledge that, while there is no reason the applicant cannot obtain employment in Thailand, he would not be able to earn a salary in Thailand in the amount he can in Australia.
Based on the evidence before the Tribunal, I find there would be impediments to the applicant recommencing a life in Thailand and this weighs in his favour.
CONCLUSION
The first and third primary considerations weigh against the revocation of the cancellation decision. The second primary consideration is not relevant to this matter.
In regard to the other considerations, I find the applicant’s ties to Australia and the impediments to his removal from Australia weigh for revoking the cancellation of the applicant’s visa.
Noting the requirement that primary considerations should be given greater weight than the other considerations, I am satisfied on balance of the primary and other considerations that it is not appropriate to revoke the decision to cancel the applicant’s visa.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 65 (sixty -five) paragraphs are a true copy of the reasons for the decision herein of
Dr L Bygrave, Member

...............................[sgd].........................................
Associate
Dated: 9 November 2018

Date(s) of hearing: 26 October 2018

Applicant: In person

Solicitors for the Respondent: Mr C Brinley, Clayton Utz

[2018] AATA 4203

9 November 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Date(s) of hearing:	26 October 2018
Applicant:	In person
Solicitors for the Respondent:	Mr C Brinley, Clayton Utz