Shalvindran and Minister for Home Affairs (Migration)

[2018] AATA 1336

Shalvindran and Minister for Home Affairs (Migration) [2018] AATA 1336 (21 May 2018)

Division:GENERAL DIVISION

File Number(s):      2018/0963

Re:Shalvinesh Shalvindran

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member M Griffin QC

Date:21 May 2018

Date of written reasons:        21 May 2018

Place:Sydney

The Tribunal orders that:

1.The decision under review be quashed;

2.In lieu, thereof, it is ordered that the cancellation of the Applicant’s visa be revoked.

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

Senior Member M Griffin QC

CATCHWORDS

MIGRATION – non-revocation of decision to cancel visa – failure to pass character test – Ministerial Direction 65 applied – protection of the Australian community – nature and seriousness of conduct – risk to the Australian community - best interests of child – expectations of Australian community – other considerations – decision set aside and substituted

LEGISLATION
Migration Act 1958 (Cth) ss 499, 500, 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

REASONS FOR DECISION

Senior Member M Griffin QC

21 May 2018

1. On 1 March 2018, the Applicant applied for review of a decision of a delegate of the Respondent Minister dated 26 February 2018 not to revoke, under s. 501CA(4) of the Migration Act 1958, a decision under s. 501(3A) of the Act to cancel the Applicant’s class 5B visa.

   History

2. The Applicant is a citizen of Fiji who has been residing in Australia since 17 April 1988, at age three. An earlier notice issued to the Applicant that his visa had been cancelled was revoked by the Department on 21 February 2016. At that time, the Applicant was held in the Villawood Detention Centre. The Applicant committed further offences in May 2017.

3. On 14 August 2017, the Applicant was again issued a notice that his visa had been cancelled. That cancellation is the subject of this hearing.

4. The issues for the Tribunal to decide are:

   a)whether the Applicant passes the character test as defined in s. 501;
   and

   b)if he does not, whether the Tribunal is satisfied there is another reason why the cancellation decision should be revoked.

   Relevant legislation and policy

5. Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: see s 501CA(1).

6. Subsection 501CA(4) provides that (emphasis added):

   (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.

7. Subsection 501(6)(a) relevantly provides that a person does not pass the "character test" if the person has "a substantial criminal record". Relevantly, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).

8. Subsection 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.

9. The Minister has made written directions pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (Direction 65). Section 1 of Direction No 65 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly includes that:

   (a)the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens (cl 6.2(1));

   (b)the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere (cl 6.3(3));

   (c)a non-citizen who has committed a serious crime, including of a violent nature, and particularly against vulnerable members of the community such as minors, should generally expect to forfeit the privilege of staying in Australia (cl 6.3(3));

   (d)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 (cl 6.3(4));

   (e)while Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, or contributing to, the Australian community for only a short period time, 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 (cl 6.3(5)); and

   (f)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 (cl 6.3(7)).

10. Part C of Direction 65 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises three "primary considerations" and several specified, but non-exhaustive, "other considerations", which must be taken into account.

11. On the evidence, the Applicant does not pass the character test.

12. I will now turn to consider the principles in paragraph 6.3 of Direction No. 65 which principles I must take into account. Primary considerations are the protection of the Australian community from criminal and other serious conduct, expectations of the Australian community, and the best interests of minor children in Australia.

13. The Applicant’s offending history is summarised in paragraph 8 of the Respondent’s Statement of Facts Issues and Contentions. There are a number of offences, nine Court appearances in all between 2003 and 2017. Up until 2008, the offences were driving and minor property offences. From 2012 to 2017, once again there were a series of shoplifting charges. On the last occasion in Sutherland Local Court in July 2017, the Applicant received a sentence of eight months imprisonment with a four month non-parole period, for shoplifting and with custody of a knife in a public place. He gave evidence about this incident and said that again he was affected by drugs, namely, heroin. He was persuaded by friends to go to a Bunnings store. I do not accept his explanation that this was a spur-of-the-moment offence. I accept, however, that the knife was for the purpose of opening packaging with the intention of more easily stealing the property.

14. He has been a persistent and recalcitrant offender. The most serious offence in which he was involved was an aggravated break and enter offence for which he was sentenced to 3 years and 9 months imprisonment. Although as the Respondent’s legal representative pointed out, the sentencing judge found the Applicant equally criminally responsible for the offence, I accept the Applicant’s explanation that he played practically a lesser role and was not the instigator. So much is apparent from the different sentences that were imposed upon the Applicant and his co-offender, his brother. This is by far the worst offending that occurred. However, this was only on one occasion and the only event which could be described as having any ingredient of potential violence. Otherwise the offences almost exclusively involve obtaining property from commercial premises and businesses. This has some limited relevance but relevance nonetheless, when considering the impact on victims.

15. The Respondent describes the offending history as serious. This is of course correct. However, I make two observations which have implications for the primary consideration of protection of the Australian community and risk to the Australian community. The first is that, in the catalogue of possible offending, the seriousness of this behaviour is overall no more than, in my opinion, of moderate consequence and degree. Furthermore, viewing the offending history chronologically, there is no suggestion that there has been an increase in seriousness as time has progressed. The shoplifting offences, taken together and alone, are not particularly serious, although numerous. The driving offences are low-range.

16. The future risk to the Australian community by the Applicant is, on the view I have formed on the evidence, relatively low. It is axiomatic that one cannot with certainty predict a person’s behaviour in the future.

17. However, relying on the evidence which I will enumerate, those objective features to my mind add some degree of certainty in terms of reduced risk. Furthermore, there are two factors which on the evidence I have accepted. They are:

    1.The Applicant is now in a substantially different position from other times during which his past conduct led him to criminal behaviour. Although in the past he attempted to become drug-free, those attempts failed. Albeit by rather underhanded means, nonetheless, the Applicant has now been successfully participating in a methadone program, and it appears to my satisfaction on the evidence, that he is progressing well. This is a very positive sign for the future. According to Dr Hoang, the Applicant’s general practitioner, he expressed the belief that the Applicant “can be rehabilitated”.[1] Such a process of rehabilitation will not normally occur instantaneously and even though the Applicant offended (he last offended after the production of this report), there is now evidence before me because of the progress the Applicant has made demonstrating that Dr Hoang’s opinion of rehabilitation  was not misplaced.

    2.I conclude that part of the reason for his successful progression on the methadone program is the change in his life circumstances. Although previously he was married, he now impresses me with a determined interest and love for his new-born child. These factors taken together, I conclude, have brought about change that suggests rehabilitation will be effective, positive and long-lasting.

    [1] Report of Dr Elaine Hoang dated 29 August 2016 – G-documents, p 156.

18. I recognise that in the past not only has there been considerable evidence of recidivism but, in fact, he was given the most severe warning by previous cancellation of his visa.

19. I have had regard to this body of evidence bearing in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity and other serious conduct by non-citizens, and that remaining in Australia is a privilege that Australia confers on noncitizens in the expectation they are and have been law-abiding. Taking into account the dual considerations of nature and seriousness of the citizen’s conduct to date and the risk to the Australian community of future offending, I regard the risk of re-offending as substantially reduced.

20. The second primary consideration is the expectations of the Australian community. The Australian community expects non-citizens to obey Australian laws while in Australia. Where a citizen has committed offences or where there is an acceptable risk they will breach the trust in the future, it may be appropriate not to revoke the mandatory visa cancellation having due regard to the Government’s views in this respect.

21. This consideration weighs against the Applicant.

22. I turn now to consider the best interests of minor children in Australia.

23. The children affected by a decision are his five month old daughter, the wife’s daughter, the Applicant’s step-daughter and a niece and a nephew.

24. The step-daughter resides with her natural father but has, according to the mother, had from time to time contact with the Applicant and formed a bond with him. I infer from her evidence that she expects the Applicant to play a positive role in the step-daughter’s life. I do not regard the Applicant’s past conduct as having any negative impact on the child. This is a view I have formed in relation to all the children involved.

25. In relation to the niece and nephew, both have provided positive statements to the Tribunal about love, affection and the relationship with their uncle. The relationships described appear to be normal uncle and nephew/niece-type relationships. The views they have expressed are that they wish for him to remain in Australia. The ages of both suggest that it is appropriate to consider their wishes. The Applicant appears to have a parental type role in the lives of the niece and nephew.

26. The Applicant’s own child is barely five months old and it can hardly be supposed that she knows her father. However, she has been taken to the immigration detention centre to see him regularly. On the other hand, he knows her and according to his evidence and that of his wife, which I accept, he has bonded with her. On the view I have taken of his reformed behaviour, I consider that he will have potential to fulfil an important parental role for the next 18 years. Separation from the child, in my opinion, would be quite devastating even though there are means of communication by telephone which would be available. This is, in my opinion, a poor substitute for personal contact.

27. The Minister’s Representative submits that because the Applicant has been in detention custody since the child’s birth that fact diminishes the value of contact and therefore consequently the force of this consideration in favour of the Applicant. I have no hesitation in dismissing that submission.

28. In the overall consideration of the best interests of all the minor children, I am satisfied that this is a powerful and important consideration in favour of revoking mandatory cancellation.

29. I will now deal with the other considerations. The International Non-refoulement obligations and impact on Australian business interests have no relevance to this case.

30. As to the impact of a decision not to revoke on the Australian community, including victims, there is no direct evidence. However, it may be inferred, taking into account similar considerations to those concerning risk to the Australian community albeit the commercial victims so-called may be concerned about the likelihood of his reoffending.

31. Should the Applicant be removed there will certainly be impediments. The Applicant’s age and health, particularly his ongoing need to be on a methadone program and the fact that he suffers from depression may be more difficult to be dealt with in Fiji largely because of his lack of family support there and the fact that he has not lived in the country since the age of three.

32. The Applicant would have access to the same social welfare and medical services and State protection as other Fijian citizens and whilst his inability to speak the vernacular is relevant, overall, I do not consider that this consideration should weigh heavily in his favour.

33. The Applicant has substantial ties to Australia. He arrived at the age of three and his immediate extended family reside here, as does his wife and five-month-old daughter and stepdaughter. Removal to Fiji would involve physical separation from his family who, on the evidence, I conclude, have a close and deep familial relationship. His family, including minors, a niece and a nephew, to whom I have referred, wish him to remain. I conclude on the view of the evidence that I have formed, this consideration should be given substantial weight.

    Conclusion

34. I am satisfied that there are other reasons why the cancellation should be revoked. I am satisfied that there is minimal risk to the Australian community by allowing the Applicant to remain in Australia. Furthermore, I am satisfied the protection of the Australian community can be best served by the Applicant’s visa not being mandatorily revoked. The best interests of minor children are best served by allowing the Applicant to remain in Australia. These considerations outweigh any other competing features. These considerations together with the substantial ties that the Applicant has in Australia and the length of time he has lived here are factors which powerfully weigh in favour of revoking mandatory cancellation.

    Orders

35. Decision under review be quashed. That, in lieu thereof, it is ordered that the cancellation of the Applicant’s visa be revoked.

    SM Griffin QC

    Dated: 21 May 2018

I certify that the preceding 35 (thirty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

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

Associate

Dated: 21 May 2018

Date of hearing:	7 May 2018
Applicant:	In person
Counsel for the Applicant:	Mr L Karp, Chalfont Chambers
Solicitors for the Respondent:	Ms M Donald, Sparke Helmore