Seddon and Minister for Home Affairs (Migration)

Case [2019] AATA 4361

Seddon and Minister for Home Affairs (Migration) [2019] AATA 4361 (24 October 2019)

Division:GENERAL DIVISION

File Number(s):      2019/4722

Re:Wiremu Seddon

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A. Nikolic AM CSC

Date:24 October 2019

Place:Melbourne

The Tribunal affirms the decision under review.

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

Senior Member A. Nikolic AM CSC

MIGRATION – Mandatory visa cancellation – citizen of New Zealand – Class TY Subclass 444 Special Category (Temporary) visa – failure to pass character test – criminal history between 2003 and 2015 – convictions for multiple violent offences -– whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Amendment (Character Cancellation Consequential Provisions) Act 2017 (Cth)

Migration Regulations 1994 (Cth)

CASES

Afu v Minister for Home Affairs [2018] FCA 1311
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
DKXY v Minister for Home Affairs [2019] FCA 495
Falzon v Minister for Immigration and Border Protection [2018] HCA 2
FYBR v Minister for Home Affairs [2019] FCA 500
Jagroop v Minister for Immigration and Border Protection [2016] 241 FCR 461
LCNB and Minister for Immigration and Border Protection [2015] AATA 463
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567
Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Umi and Minister for Home Affairs [2019] AATA 2316
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13

WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705

SECONDARY MATERIALS

Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

Senior Member A. Nikolic AM CSC

24 October 2019

  1. The applicant, Mr Wiremu Seddon, seeks review of a decision by a delegate of the Minister for Home Affairs, made under s 501CA(4) of the Migration Act 1958 (“the Act”), not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (“the visa”).

  2. The hearing was held in Melbourne on 14 and 15 October 2019. Mr Seddon appeared in person. Although assisted by Refugee Legal during the pre-hearing stage, including with preparation of his statement, his mother’s statement and other documents, Mr Seddon was self-represented at the hearing. The Minister was represented by Mr Brown from the Australian Government Solicitor.

  3. For the reasons that follow, the Tribunal affirms the decision under review.

    BACKGROUND

  4. The factual background to this application is as follows:

    (a)Mr Seddon is a 34 year old citizen of New Zealand,[1] who migrated to Australia in December 1996 when aged 11. He has lived in Australia permanently…

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AGLC
Seddon and Minister for Home Affairs (Migration) [2019] AATA 4361
Case
[2019] AATA 4361
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Mr Seddon, a New Zealand citizen who had resided in Australia since childhood, to review the mandatory cancellation of his visa on character grounds. Mr Seddon’s visa was cancelled in November 2018 while he was serving a prison sentence, and a subsequent request for revocation was refused in August 2019. The Tribunal was required to determine if there was "another reason" why the visa cancellation should be revoked, as contemplated by section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

The legal issues before the Tribunal were whether Mr Seddon had established a reason, beyond simply passing the character test, that carried sufficient weight to warrant the revocation of the visa cancellation. This involved assessing the nature and seriousness of his criminal offending, including violent offences, and considering various personal circumstances. The Tribunal was guided by the principles established in *Viane*, which require a reason of sufficient weight to enliven the statutory power to revoke.

In its reasoning, the Tribunal considered a range of factors, including the seriousness of Mr Seddon's criminal history, which encompassed violent offences, domestic violence, and repeated offending. It also weighed the best interests of his four young children, his ties to Australia, and the impediments to his removal. However, the Tribunal found that the primary considerations of protecting the Australian community and community expectations weighed very strongly against revocation. These considerations, when balanced against the factors favouring revocation, did not provide "another reason" of sufficient significance to justify overturning the original decision.

Consequently, the Tribunal affirmed the decision under review, meaning the cancellation of Mr Seddon's visa was upheld.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the reasons that follow, the Tribunal affirms the decision under review. BACKGROUND The factual background to this application is as follows:(a)Mr Seddon is a 34 year old citizen of New Zealand,[1] who migrated to Australia in December 1996 when aged 11. He has lived in Australia permanently since;[1] Exhibit R1, 52.(b)Mr Seddon attended school in Sydney but left during Year 9 and subsequently undertook an apprenticeship as a butcher. He has worked predominantly in that trade since, including in managerial roles; (c)Mr Seddon has been convicted of multiple crimes since arriving in Australia, including violent offences such as ‘Robbery in company, Resist or hinder police officer in the execution of duty, Aggravated assault (no weapon) against child or spouse, Make threat to kill, and Unlawful assault.[2] His most recent convictions were in the Horsham Magistrates’ Court on 18 September 2019; [2] Ibid, 15-19.(d)There are four personal relationships in Mr Seddon’s life that are relevant to his application:(i)During what he submitted was a ‘brief affair in 2004,’ Mr Seddon fathered a child who is currently 14 years old and living in Queensland.[3] Mr Seddon initially thought the child was not his, but said he accepted paternity in 2008 after a DNA test;[3] Exhibit A1, 16 [89].(ii)At age 21 Mr Seddon married a co-worker. That relationship ended in 2009, followed by divorce in 2010. Mr Seddon submitted he was verbally but not physically abusive to this woman during their relationship;(iii)Mr Seddon said he had an approximately year-long relationship after moving to South Australia in October 2010, which ended in late 2011. He agrees he was convicted in February 2012 of assaulting this woman; and(iv)Mr Seddon’s longest relationship was from approximately late 2011 until 2018.[4] The couple had four children who are currently under seven years of age and live with their mother and her new partner in Victoria. Mr Seddon accepts that he committed multiple acts of domestic violence against his former partner in the presence of their children, resulting in multiple intervention orders.[5] [4] Ibid, 16 [96].[5] Ibid, 16-17 [95]-[97].(e)On 16 November 2018 Mr Seddon’s visa was cancelled on character grounds by a delegate of the Minister for Home Affairs. At the time of visa cancellation, Mr Seddon was serving a term of imprisonment;(f)Mr Seddon was invited to make representations to have the visa cancellation revoked and did so on 17 November 2018;[6](g)On 17 December 2018, at the conclusion of his prison sentence, Mr Seddon was taken into immigration detention where he has since remained;[7] (h)On 2 August 2019, after considering Mr Seddon’s revocation request, a delegate of the Minister decided not to revoke the visa cancellation decision;[8] and(i)Mr Seddon was notified of the non-revocation decision on 6 August 2019.[9] He lodged his application to the Tribunal on the same day,[10] stating as the reason for his application:‘I wish to get it reviewed as for my criminal history most of it happen while I was younger and didn’t know any better i was young naïve immature drugs and alcohol played a big part in my wrong doings as for the last 7 years I have had problems with my mental heath alcohol and drug problems I have tried to fix my past wrongs and i want to be a good role model for my 5 kids…all my kids and family are here in austalia and i have no one left in new zealand no more as they have all moved here over the years that i have been here since 1996.’[11](errors in original)[6] Exhibit R1, 51.[7] Ibid, 126.[8] Ibid, 140.[9] Ibid, 5.[10] Ibid, 1.[11] Ibid, 6.

Evidence

Evidence Before The Court

It remains to be determined under s 501CA(4)(b)(ii) of the Act if there is ‘another reason’ why the mandatory cancellation of Mr Seddon’s visa should be revoked. The task of identifying ‘another reason’ was recently elaborated upon by the Full Court of the Australian Federal Court in Viane:[14]‘There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.’[14] Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13 per Colvin J at [64].EVIDENCE BEFORE THE TRIBUNAL “G-documents” numbering 722 pages were taken into evidence.[15] Statements from [15] Exhibit R1.[16] Exhibit A1.[17] Exhibit A2.[18] Exhibit A3.[19] Exhibit A4.Mr Seddon[16] and his mother,[17] prepared with the assistance of Refugee Legal, were tendered into evidence. A statement from Mr Seddon’s grandmother[18] and an email from his former partner[19] were also tendered into evidence. The Tribunal heard oral evidence from Mr Seddon in person and from his mother by telephone. On the second day of the hearing, in light of frequent uncorroborated references about the perspectives of Mr Seddon’s former long-term partner, the Tribunal telephoned her. She had previously expressed willingness via an email to be contacted ‘for any reason.’ Mr Seddon’s former partner provided oral evidence and was cross-examined. When asked about the origins of her email in support of Mr Seddon, she explained that a lawyer from Refugee Legal had contacted her and requested that she provide it. Relevant aspects of her evidence are discussed later in these reasons.Criminal History Check Mr Seddon does not dispute the information contained in his Criminal History Check,[20] which the Tribunal accepts is an accurate record of his convictions.[20] Exhibit R1, 15-19.Sentencing Remarks The Tribunal has considered the sentencing remarks in evidence from the Magistrates’ Court of Horsham, dated 18 September 2018[21] (“2018 sentencing remarks”) and from the District Court of New South Wales dated 17 June 2005[22] (“2005 sentencing remarks”).[21] Ibid, 27-40.[22] Ibid, 41-50.Medical Evidence Mr Seddon has lodged medical evidence in conjunction with his written statement, consisting of:(a)a two-page medical record from Lyell McEwin Hospital relating to his admission during a five day period in January 2016;[23](b)five medical records from Lyell McEwin Hospital relating to his presentations at the Hospital’s Emergency Department on 21 May 2011, 1 July 2012, 27 September 2012, 20 September 2016 and 2 October 2017;[24] and(c)eight pages of clinical notes from the International Health and Medical Services (IHMS), recording consultations with Mr Seddon between 18 December 2018 and 24 July 2019.[25][23] Attachment to Exhibit A1.[24] Ibid.[25] IbidPRIVILEGE AGAINST SELF-INCRIMINATION

Decision

Reasons for decision

Having weighed all of the considerations individually and cumulatively, the Tribunal finds there is not another reason why the cancellation of Mr Seddon’s visa should be revoked. That is because the primary considerations ‘Protection of the Australian community’ and ‘Expectations of the Australian community’ weigh very strongly against revocation. These considerably outweigh the primary consideration of ‘Best interests of children,’ which weighs slightly in favour of revocation, and the other considerations of ‘Strength, nature and duration of ties’ and ‘Extent of Impediments if removed,’ which weigh in favour of revocation, and ‘Impact on victims,’ which weighs very slightly in favour of revocation.DECISION It follows that the Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

Paragraph 13.1.1(1) sets out factors to be considered in determining the nature and seriousness of a 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 of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed; c) The principle that crimes committed against vulnerable members of the community (such as 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; d) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;e) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;f) The cumulative effect of repeated offending;g) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;h) 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);i) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.Tribunal consideration: The nature and seriousness of the conduct Mr Seddon accepted that his criminal offending and involvement in family violence incidents was serious. He attributed his conduct to persistent abuse of drugs and alcohol, which he says started at the age of 14 with marijuana and escalated to consumption of ‘ecstasy, speed, pure speed, and pure base cocaine.’ He said that he has also used methylamphetamine, known as ice, but only for the ‘last six or seven years.’ Mr Seddon referred to associations with negative peers as contextually-relevant to some offending, including multiple counts of ‘Robbery in company.’ Mr Seddon concedes there were ‘some elements of violence’ in those robberies, but submits the victims did not sustain physical injuries:‘This violence was very wrong, but it was not so serious that I was charged with separate assault offences…I realise the victims would have been traumatized and am sorry for that but I don’t believe they sustained physical injuries…’[26][26] Exhibit A1, 8 [46] Mr Seddon states he was convicted of ‘Resist or hinder police’ and ‘Resist officer in execution of duty’ in 2003 because he was ‘concerned…police were harassing my mate’s little brother.’ He explained during his oral evidence that the person he was seeking to protect was a co-accused from previous offending.