SCJD and Minister for Home Affairs (Migration)

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SCJD and Minister for Home Affairs (Migration) [2018] AATA 4020 (25 October 2018)

Division:GENERAL DIVISION

File Number(s):      2018/4478

Re:SCJD

APPLICANT

Minister for Home AffairsAnd  

RESPONDENT

DECISION

Tribunal:R Cameron, Senior Member

Date:25 October 2018

Place:Melbourne

The Tribunal affirms the decision under review.

.......................................................................

Senior Member

Catchwords

MIGRATION - application for revocation of mandatory cancellation of visa – where applicant fails character test - where applicant warned visa may be cancelled on multiple occasions – prolonged history of offending - drug and firearm related offences – risk of harm if applicant re-offends - unacceptable risk of applicant reoffending - where Australian community would expect non-revocation – non-refoulement - decision affirmed

Legislation

Migration Act 1958 (Cth)
Sentencing Act 1991 (Vic)
Drugs, Poisons and Controlled Substances Act 1981 (Vic)
Corrections Act 1986 (Vic)
Corrections Regulations 2009 (Vic)
Evidence Act 2008 (Vic)
Criminal Procedure Act 2009 (Vic)

Cases

Ayoub v Minister for Immigration and Border Protection [2015] FCAC 83
Re: Ayache and Minister for Immigration and Border Protection [2018] AATA 310
Re Do v Minister for Immigration and Border Protection [2016] AATA 390
Re Waits v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
Minister for Immigration & Multicultural Affairs v SRT [1999] FCA 1197
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 s 501CA (Instrument made on 22 December 2014).

1951 Convention Relating to the Status of Refugees

1967 Protocol Relating to the Status of Refugees

REASONS FOR DECISION

R CAMERON SENIOR MEMBER

25 October 2018

INTRODUCTION

  1. The Applicant is a citizen of Vietnam. He was born in 1968 and is currently 50 years of age. He arrived in Australia in 1981 when he was aged 13 years. He has resided in Australia ever since.

  2. The Applicant was, until 15 September 2017 the holder of a Class BB Subclass 155 Five Year Resident Return visa. On that date, his visa was mandatorily cancelled under section 501(3A) of the Migration Act 1958 (Cth) (“the Act”).

  3. The Applicant subsequently submitted a request for revocation of the mandatory cancellation of the visa pursuant to section 501CA of the Act. On 2 August 2018 a delegate of the Minister for Home Affairs and Minister for Immigration and Border Protection decided not to revoke the decision to cancel the Applicants visa (“the reviewable decision”).

    RELEVANT LAW

    The Act

  4. With regard to the mandatory cancellation of visas, section 501(3A) of the Act provides that the Minister (or his delegate) 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

    …; and

    (b)the person is serving a sentence…

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Details
Case
[2018] AATA 4020
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs not to revoke the mandatory cancellation of the applicant's visa. The applicant, who arrived in Australia as a refugee at the age of 13, had a prolonged history of offending, including drug and firearm-related offences, which led to the mandatory cancellation of his visa under section 501(3A) of the *Migration Act 1958* (Cth) due to having a substantial criminal record. The applicant sought revocation of this cancellation under section 501CA of the Act.

The primary legal issues before the Tribunal were whether the applicant passed the character test, and if not, whether there was another reason why the mandatory cancellation of his visa should be revoked. In determining these issues, the Tribunal was required to consider the primary considerations outlined in Paragraph 13(2) of Ministerial Direction No. 65, namely the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia, and the expectations of the Australian community.

The Tribunal reasoned that the applicant did not pass the character test, as he had been sentenced to terms of imprisonment of 12 months or more on multiple occasions, satisfying the definition of a substantial criminal record under section 501(7)(c) of the Act. In assessing whether to revoke the visa cancellation, the Tribunal considered the nature and seriousness of the applicant's conduct, noting his repeated offending and the fact that he had been warned about the consequences for his migration status. While acknowledging the applicant's difficult refugee journey and evidence of PTSD, the Tribunal found that these factors did not outweigh the risk of harm to the Australian community should he re-offend. The Tribunal concluded that the Australian community would expect the visa not to be revoked given the applicant's criminal history and the unacceptable risk of reoffending.

The Tribunal affirmed the decision not to revoke the mandatory cancellation of the applicant's visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

A variety of other reports, learned articles and sundry documents.AN OVERVIEW OF THE APPLICANT’S BACKGROUND The Applicant arrived in Australia in 1981 when he was 13 years old. He came to Australia as a refugee. He left Vietnam by boat with his mother, brother and two sisters. They fled Vietnam following the imprisonment of his father for six years by the Communist regime that had taken control in Vietnam because he had served in the South Vietnamese army. The Applicant’s family had faced threats to their safety. An uncle had resettled in Australia so they made their way here. Unfortunately, they embarked upon a particularly perilous voyage. The boat was crammed with people seeking to escape. The weather was not particularly good with the boat taking on water which required those on board to bail repeatedly to stop it from sinking. Most of those on board also were repeatedly seasick and surviving the voyage was difficult. To add to the conditions just described in the course of the voyage the captain of the boat committed suicide by jumping into the sea in the belief that he would not survive the journey. The Applicant gave evidence that he witnessed the captain jump overboard and refuse to be rescued. The boat was also robbed by Thai pirates. Eventually, the boat reached Malaysia and the Applicant and his family were sent to a refugee camp prior to their acceptance for resettlement and subsequent travel to Australia. The evidence before the Tribunal indicates that what the Applicant experienced on this voyage has had a lasting effect upon him and caused him to suffer from stress, depression and Post-Traumatic Stress Disorder (PTSD). This is canvassed in the several psychologists’ reports and other material in evidence before the Tribunal. Following his arrival in Australia the family initially lived in Springvale before moving to Richmond where permanent accommodation was found. The Applicant attended Richmond High School from years 7 to 10. Additionally, he attended special English classes. Subsequently he transferred to Collingwood Technical School but left at the end of year 11 so that he could go to work to assist his family. The jobs that he got included working in his mother’s sewing business and also in restaurants. He also had a job making jewellery and belts for a firm in Richmond. His employment then became somewhat punctuated due to his convictions in early adulthood.THE APPLICANT’S HISTORY OF OFFENDING The specific details of the Applicant’s offending are contained in a schedule annexed to these reasons. The details of the offences are derived from the National Police Certificate which is in evidence before the Tribunal and Victoria Police records. The Applicant both in his witness statement, his oral evidence from the witness box both in evidence in chief and cross examination and through his counsel conceded the offending as described in the National Police Certificate and the police records. The offending commenced with a conviction in the Sunshine Children’s Court for theft in 1983 and concluded with a conviction of the common law offence of riot in the County Court of Victoria at Melbourne this year.

Evidence

Evidence Before The Court

However, under section 501CA(4) the character test comes into play. Whilst no contention has been made on the part of the Applicant that he passes the character test, no formal concession has been made by him that he actually fails it. (Although, it is implicit in his submissions). The Tribunal considers for the sake of completeness the question should be adjudicated on.THE EVIDENCE AND OTHER MATERIALS BEFORE THE TRIBUNAL There was both documentary and viva voce evidence before the Tribunal. It is not intended to identify all the documentary evidence before the Tribunal which is known to the parties however the following documents were tendered into evidence: Witness statements from the following individuals: (a)The Applicant;(b)The Applicant’s brother-in-law;(c)A friend of the Applicant;(d)The Applicant’s brother; and(e)The Applicant’s sister The “G” documents and two volumes of the “Supplementary G” documents.. A report of psychologist Dr Annie Cantwell-Bartl of 19 September 2018. Copies of certificates of achievement for various courses that the Applicant has recently completed. A variety of other reports, learned articles and sundry documents.AN OVERVIEW OF THE APPLICANT’S BACKGROUND The Applicant arrived in Australia in 1981 when he was 13 years old. He came to Australia as a refugee. He left Vietnam by boat with his mother, brother and two sisters. They fled Vietnam following the imprisonment of his father for six years by the Communist regime that had taken control in Vietnam because he had served in the South Vietnamese army. The Applicant’s family had faced threats to their safety. An uncle had resettled in Australia so they made their way here. Unfortunately, they embarked upon a particularly perilous voyage. The boat was crammed with people seeking to escape. The weather was not particularly good with the boat taking on water which required those on board to bail repeatedly to stop it from sinking. Most of those on board also were repeatedly seasick and surviving the voyage was difficult. To add to the conditions just described in the course of the voyage the captain of the boat committed suicide by jumping into the sea in the belief that he would not survive the journey. The Applicant gave evidence that he witnessed the captain jump overboard and refuse to be rescued. The boat was also robbed by Thai pirates. Eventually, the boat reached Malaysia and the Applicant and his family were sent to a refugee camp prior to their acceptance for resettlement and subsequent travel to Australia. The evidence before the Tribunal indicates that what the Applicant experienced on this voyage has had a lasting effect upon him and caused him to suffer from stress, depression and Post-Traumatic Stress Disorder (PTSD). This is canvassed in the several psychologists’ reports and other material in evidence before the Tribunal. Following his arrival in Australia the family initially lived in Springvale before moving to Richmond where permanent accommodation was found. The Applicant attended Richmond High School from years 7 to 10. Additionally, he attended special English classes. Subsequently he transferred to Collingwood Technical School but left at the end of year 11 so that he could go to work to assist his family. The jobs that he got included working in his mother’s sewing business and also in restaurants. He also had a job making jewellery and belts for a firm in Richmond. His employment then became somewhat punctuated due to his convictions in early adulthood.THE APPLICANT’S HISTORY OF OFFENDING

Decision

Reasons for decision

The Applicant subsequently submitted a request for revocation of the mandatory cancellation of the visa pursuant to section 501CA of the Act. On 2 August 2018 a delegate of the Minister for Home Affairs and Minister for Immigration and Border Protection decided not to revoke the decision to cancel the Applicants visa (“the reviewable decision”).RELEVANT LAWThe Act With regard to the mandatory cancellation of visas, section 501(3A) of the Act provides that the Minister (or his delegate) 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…; 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. Section 501(6)(a) of the Act then provides that a person does not pass the character test if they have a substantial criminal record. Relevantly for this application, section 501(7)(c) provides than a person will have a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more. With regard to the revocation of a mandatory cancellation decision, section 501CA relevantly provides:(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.…(3)As soon as practicable after making the original decision, the Minister must:(a)give the person, in the way the Minister considers appropriate in the circumstances:(i) a written notice that sets out the original decision; and(ii) particulars of the relevant information; and(b)invite the person to make representations to the Minister within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.(4) The Minister may revoke the original decision if:(a)the person makes representations in accordance with the invitation; and(b) the Minister is satisfied:(i)that the person passes the character test (as defined by section 501); or(ii)that there is another reason why the original decision should be revoked.(5)If the Minister revokes the original decision, the original decision is taken not to have been made.… Where a decision has been made by a delegate of the Minister under section 501CA(4) not to revoke a mandatory cancellation of a visa, the affected person may make an application to the Tribunal seeking a review of that decision under section 500(1)(ba) of the Act. The Applicant filed this application for review with the Tribunal on 7 February 2018. Under section 499(1) of the Act the Minister may give written directions to a person or body having functions or powers under the Act if such directions concern the performance of those functions or the exercise of those powers. When such a direction has been given in accordance with that section, a person or body having those functions or powers under the Act such as the Tribunal must comply with such direction (section 499(2A) of the Act). Currently, the applicable direction is Direction No. 65 (“the Ministerial Direction”).Direction No. 65

Ratio Decidendi

Legal Principle Established

As has been explained earlier in these reasons the Applicant concedes and the evidence reveals that he has several convictions where the term of imprisonment imposed was 12 months or more.[4] He is accordingly deemed to have a substantial criminal record within the meaning of section 501(7)(c) of the Act and the Tribunal must therefore find that he does not pass the character test.[4] Lest it needs to be repeated the Applicant was sentenced to a term of imprisonment of 12 months or more at the County Court of Victoria in 2018 (common law riot); 2016, 2004, 2003, 1997, 1997 (convictions for, amongst other things, trafficking drugs) and 1991 (possessing heroin).THE PRIMARY CONSIDERATIONS Paragraph 13(2) of the Ministerial Direction with respect to revocation requests prescribes the Primary considerations to be taken into account by the decision maker. It states:…(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:a)Protection of the Australian community from criminal or other serious conduct;b) The best interests of minor children in Australia;c) Expectations of the Australian community.PROTECTION OF THE AUSTRALIAN COMMUNITY Paragraph 13.1(1) of the Ministerial Direction requires the Tribunal, when considering the protection of the Australian community, to acknowledge 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. Paragraph 13.1(2) further states:(2) Decision-makers should also give consideration to:(a)The nature and seriousness of the non-citizen’s conduct to date; and(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.Nature and seriousness of the Applicant’s conduct Paragraph 13.1.1 of the Ministerial Direction relevantly provides that:(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;c) The sentence imposed by the courts for a crime or crimes;d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;e) The cumulative effect of repeated offending;…g)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).…