RZSN and Minister for Home Affairs (Migration) - [2019] AATA 240

RZSN and Minister for Home Affairs (Migration) [2019] AATA 240 (27 February 2019)
Division: GENERAL DIVISION
File Number: 2018/7174
Re: RZSN
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Member Richard West
Date:27 February 2019
Place:Melbourne

The Tribunal affirms the decision of the delegate of the Respondent made on 4 December 2018 not to revoke the mandatory cancellation of the Applicant’s Class BA Subclass 202 (Global Special Humanitarian) visa.
...................[sgd]....................................................
Member
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record and does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – protection of the Australian community from criminal or other serious conduct – best interests of the child – expectations of the Australian community – other considerations – decision under review affirmed.
Legislation
Migration Act 1958 (Cth)
Cases
ALN17 v Minister for Immigration and Border Protection [2017] FCA 726
Do and Minister for Immigration and Border Protection, Re [2016] AATA 390
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Gordon and Minister for Immigration and Border Protection (Migration), Re [2018] AATA 39
Jupp and Minister for Immigration and Multicultural and Indigenous Affairs, Re [2002] AATA 458
NBMZ and Minister for Immigration and Border Protection [2014] 220 FCR 1
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Waits and Minister for Immigration and Multicultural and Indigenous Affairs, Re [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA – paras 6.1, 6.2, 6.3, 7(1), 8, 13(2), 13.1(1), 13.1(2), 13.1.1(1), 13.1.2(1), 13.2(4), 13.3(1), 14(1), 14.2(1), 14.2(1)(a)(ii), 14.2(1)(b), 14.5(1) – Part C
REASONS FOR DECISION
Member R West
27 February 2019
INTRODUCTION

In these proceedings the Applicant[1] seeks a review of the decision of a delegate of the Respondent made on 4 December 2018 not to revoke the mandatory cancellation of his Class BA Subclass 202 (Global Special Humanitarian) visa, which was cancelled pursuant to s.501(3A) of the Migration Act 1958 (Cth) (the Act).
[1] The Tribunal made on order on 25 February 2019 under s.35(3) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to restrict the publication of the name of the Applicant; to allocate the pseudonym “RZSN” in place of the Applicant’s name; and to omit details of any other persons or places which might reveal the identity of the Applicant. The Tribunal considered it appropriate to do so in order to protect the privacy of the applicant’s wife and children, as the decision will refer to a number of incidents of domestic violence.
The Tribunal conducted a hearing of the application on 18 and 19 February 2019. The Applicant was represented by Mr John Maloney of Counsel, instructed by Carina Ford Immigration Lawyers.…

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 RZSN and Minister for Home Affairs (Migration)

Details

AGLC: RZSN and Minister for Home Affairs (Migration) [2019] AATA 240
Case: [2019] AATA 240
Decision Date: 27 February 2019

CaseChat Overview and Summary

This matter concerned an application for review of the mandatory cancellation of the applicant's visa by the Minister for Home Affairs. The applicant, a citizen of Iraq, had a substantial criminal record dating back to 1998, including convictions for violent offences, driving offences, and dishonesty offences, culminating in a conviction in 2015 for possessing a firearm as a prohibited person, contravening a family violence intervention order, and contravening a suspended sentence order. The applicant argued that the discretion to revoke the mandatory cancellation should be exercised in his favour. The Administrative Appeals Tribunal (AAT) conducted a hearing and considered extensive documentary evidence, including police records, country information reports, and statements from the applicant, his family, and a psychologist.

The primary legal issues before the Tribunal were whether the discretion to revoke the mandatory cancellation of the applicant's visa should be exercised, and if so, how the various considerations, including the protection of the Australian community, the best interests of the applicant's children, and the expectations of the Australian community, should be weighed against the significant detriment the applicant would suffer if removed from Australia. The Tribunal was required to consider the seriousness of the applicant's conduct and the risk to the Australian community, as well as other relevant considerations such as the strength of the applicant's ties to Australia, the impact on his family, and the impediments he would face if removed.

The Tribunal reasoned that while the significant adverse consequences for the applicant if his visa cancellation was not revoked, including the risk of harm in Iraq and the potential for prolonged immigration detention with attendant mental health risks, weighed strongly in favour of revocation, these were outweighed by the primary considerations. The Tribunal found that the mandatory cancellation of the applicant's visa would protect the Australian community from the risk of further criminal conduct and that the expectations of the Australian community would be that the cancellation not be revoked, given the applicant's long history of antisocial and criminal conduct, particularly his repeated violent behaviour and failure to reform.

Ultimately, the Tribunal concluded that the primary considerations of protecting the Australian community and upholding community expectations outweighed the other considerations. Accordingly, the Tribunal found that the discretion under s.501CA(4) of the Migration Act 1958 (Cth) should not be exercised to revoke the mandatory cancellation of the applicant's visa, and the decision under review was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal conducted a hearing of the application on 18 and 19 February 2019. The Applicant was represented by Mr John Maloney of Counsel, instructed by Carina Ford Immigration Lawyers. The Respondent was represented by Mr Ned Rogers, solicitor of the Australian Government Solicitor. EVIDENCE In conducting the review the Tribunal has had regard to: ·the documents produced to the Tribunal by the Respondent pursuant to s.500(6F) of the Act, sequentially numbered from 1 to 520 (G Documents)[2];·two bundles of material produced by Victoria Police under summons and reproduce by the Respondent as Supplementary Relevant Documents (SRD) and Further Supplementary Relevant Documents (FSRD) sequentially numbered from 521 to 781;·DFAT Country Information Report Iraq dated 9 October 2018 (Exhibit R1);·Iraq 2017 International Religious Freedom Report, United States Department of State - Bureau of Democracy, Human Rights, and Labor (Exhibit R2);·unsworn statements of the Applicant’s parish priest (Exhibit A11), two former employers (Exhibits A12 and A13) and a counsellor (Exhibit A14);·seven articles in various publications commenting on the position of the Christian minority in Iraq (Exhibits A15-A21); and ;·the oral evidence and written statements of the Applicant (Exhibit A1), his wife Ms S (Exhibit A9), his daughters Child A , Child B, Child C and Child D (Exhibits A3-A6), his sister (Exhibit A7), his mother (Exhibit A10) and father[3] (Exhibit A8); and·the expert report (Exhibit A2) and oral evidence of Dr Peter Cook, a clinical psychologist. [2] In referring to the G Documents in this decision the relevant page numbers are cited, for example, G343 refers to the document at page 343 of the G Documents as filed.[3] The Applicant’s father was too ill to give oral evidence at the hearing but his written statement, Exhibit A8, was admitted into evidence without objection by the Respondent.BACKGROUND The Applicant is a citizen of Iraq. He was born in Basra in 1974. He is a Christian of Assyrian ethnicity. In about 1991 the Applicant and his family fled to Syria and lived for five years or so in a refugee camp. While living in the refugee camp, the Applicant married Ms S, who was also a refugee from Iraq, and together they had a daughter (Child A). The Applicant, together with Ms S and Child A, arrived in Australia in January 1996 as the holder of a Class BA Subclass 202 (Global Special Humanitarian) visa. The Applicant’s immediate family, his father, mother, three brothers and a sister, as well as members of his extended family came to Australia in or about 1995 and all continue to live in Australia. Apart from one brother, the Applicant’s immediate family members are all Australian citizens. After arriving in Australia the Applicant and Ms S had three more children, all daughters, (Child B, Child C and Child D). The Applicant found work in the building industry and worked in bricklaying, restumping, reblocking and waterproofing. On 14 August 2015 the Applicant was convicted in the Broadmeadows Magistrates Court for offences of possessing a firearm as a prohibited person, contravening a family violence intervention order, and contravening a suspended sentence order. He received a sentence of nine months’ imprisonment for possessing a firearm and had earlier suspended sentences restored.

Decision

Reasons for decision

While it is not for the Tribunal in these proceedings to determine what decisions should be made if the cancellation of the Applicant’s visa is not revoked, it is appropriate in the exercise of the Tribunal’s discretion to give consideration to the possible consequences of its decision. The detriment the Applicant would suffer if removed to Iraq is a serious matter and the Tribunal gives it substantial weight in favour of revocation. In addition, there is the prospect that the Applicant will be required to remain in detention for a considerable time while consideration is given to his position. Both Mr Leal and Dr Cook opined that continued detention would be likely to have a significant deleterious effect on the Applicant’s mental health. This consideration also weighs substantially in favour of revocation.CONCLUSION In Gaspar v Minister for Immigration and Border Protection[51] North ACJ elaborated on how to approach the exercise of the discretion under s.501CA(4)(b)(ii):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.[51](2016) 153 ALD 337 at [38] The Tribunal is satisfied that the cancellation of the Applicant’s visa will protect the Australian community from the risk of further criminal conduct by the Applicant. The Tribunal is also satisfied that the expectation of the Australian community would be that the cancellation of the Applicant’s visa not be revoked. These are primary considerations under the Direction. Against this, the Tribunal has considered the significant adverse consequences likely to be endured by the Applicant if the cancellation is not revoked. The Applicant faces a very real risk of being deported to Iraq where he will face significant hardships and be at risk of harm. He may also face an extended period of immigration detention with the attendant risk to his mental health. These consequences also bear on the interests of the Applicant’s family and particularly his four daughters. Even though these considerations weigh strongly in favour of revocation, the Tribunal is mindful of the Applicant’s long history of antisocial and criminal conduct, especially his repeated violent behaviour and his failure to take advantage of the opportunities for reform offered by the criminal justice system, and to heed departmental warnings. This has been a difficult decision but, taking all of the considerations into account, the Tribunal finds that the primary considerations of protecting the Australian community and the expectations of the Australian community outweigh the other considerations and favour the exercise of the discretion under s.501CA(4) not to revoke the mandatory cancellation of the Applicant’s visa.

Ratio Decidendi

Legal Principle Established

Paragraph 14(1) of Part C of the Direction requires that other considerations be taken into account, where relevant, including (but not limited to): (a) international non-refoulement obligations; (b) strength, nature and duration of ties;(c) impact on Australian business interests; (d) impact on victims; and(e) extent of impediments if removed.PRIMARY CONSIDERATIONSProtection of the Australian community from criminal or other serious conduct Paragraph 13.1(1) of Part C of the Direction provides that:When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens... In doing so a decision-maker is required by paragraph 13.1(2) to consider the seriousness of the person’s conduct to date and the risk to the Australian community should the person commit further offences or engage in other serious conduct.Nature and seriousness of the person’s conduct to date The Applicant’s police records were in evidence as part of the G Documents[6], and records produced on summons from Victoria Police and reproduced by the Respondent as SRD and FSRD[7]. The police records show that the Applicant has a criminal record commencing in 1998 and continuing until his incarceration in 2015.[6] G39-46[7] SRD521-633; FSRD 634-781 On 23 July 1998 the Applicant was convicted in the Melbourne Magistrates Court of intentionally cause injury and recklessly cause serious injury, resulting in sentences of 3 months imprisonment for each, wholly suspended for 18 months. The offences were committed against a police officer[8].[8] G79 On 14 April 1999 he faced the Melbourne County Court on charges of common law assault and criminal damage. The first charge was adjourned without conviction; he was convicted on the second charge and fined $500. On 10 December 1999 he was convicted in the Broadmeadows Magistrates Court of obstruct/resist police and fined $250. On 14 February 2000 in the Broadmeadows Magistrates Court he was convicted of 13 charges of obtain property by deception, and placed on a community based order for 12 months. On 19 March 2002 in the Broadmeadows Magistrates Court he was convicted of behave in an offensive manner in a public place, assault police/person assisting police (2 charges), fail to answer bail and obtain property by deception and fined $1500. On 18 June 2002 he was convicted in the Broadmeadows Magistrates Court of breaching a community based order and was sentenced to an aggregate 3 months imprisonment, to be served by way of an intensive corrections order. On 10 February 2003 he was convicted in the Melbourne Magistrates Court of exceed/have PCA within 3 hour breath test and drive whilst disqualified. He received 3 months imprisonment on each, to be served concurrently; and his licence was cancelled and he was disqualified for 2 years. On 10 September 2004 he was convicted in the Broadmeadows Magistrates Court of criminal damage, drive whilst disqualified (2 charges) and exceed prescribed concentration of blood alcohol. He was sentenced to 35 days imprisonment on each charge to be served concurrently. His licence was also cancelled and he was disqualified for 18 months.