Siueva v Minister for Home Affairs (Migration) - [2018] AATA 1079

Siueva and Minister for Home Affairs (Migration) [2018] AATA 1079 (27 April 2018)
Division:GENERAL DIVISION
File Number: 2018/0757
Re:Darcy Apisaloma Siueva
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Brigadier A G Warner, Member
Date:27 April 2018
Place:Perth

The decision under review is affirmed.
.......[sgd].................................................................
Brigadier A G Warner, Member
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant does not pass character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations - protection of the Australian community from criminal or other serious conduct – expectations of the Australian community – other considerations -strength, nature and duration of ties – extent of impediments if removed – decision under review affirmed
LEGISLATION
Migration Act 1958(Cth) -– s 499 – s 499(2A) – s 500(1)(ba) – s 501(3A) – s 501(6) –
s 501(6)(a) – s 501(7)(c) – s 501CA – s 501CA(3)(b) – s 501CA(4) – s 501CA(4)(a) –
s 501CA(4)(b)(ii)
CASES
Do and Minister for Immigration and Border Protection [2016] AATA 390
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Hazelhurst and Minister for Immigration and Border Protection [2017] AATA 2711
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Waits and Minister for Immigration and Multicultural Affairs [2003] AATA 1336
SECONDARY MATERIALS
Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA – paras 6.1, 6.2, 6.2(1), 6.3, 6.3(d), 7(1)(b), 8(1), 12.4(1), 13, 13(2), 13.1(1), 13.1(2), 13.1.1(1), 13.1.2(1), 13.2(4), 13.3(1), 14, 14(1), 14.2(1), 14.3(1),14.5(1)
REASONS FOR DECISION
Brigadier A G Warner, Member
27 April 2018
INTRODUCTION

The Applicant seeks review of a decision of a delegate of the Respondent made on 7 February 2018 under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) not to revoke the mandatory cancellation of the Applicant’s visa (G3/32-46).
The application is made pursuant to s 500(1)(ba) of the Act.
The Minister of Home Affairs (the Minister) opposes the application. The Minister contends that the decision not to revoke the original mandatory cancellation of the Applicant’s visa was the correct and preferable decision.
The Applicant attended the hearing on 10 April 2018 and gave evidence. The Applicant was supported by his fiancée who also gave evidence. The Minister was represented by Mr Burgess of Sparke Helmore Lawyers.
THE NON-REVOCATION DECISION
The Applicant is a 42 year old citizen of New Zealand and last arrived in Australia as the holder of a Special Category Class TY Subclass 444 visa (the visa) on 18 April 2015. The Applicant’s movement details indicate that he first arrived in Australia on 31 January 2010 (G7/59-60).
The Applicant was convicted of “dealing with proceeds of crime money or property $100,000 or more” on 16 June 2016, and was sentenced to 3 years and 4 months imprisonment. On 14 July 2016, he was convicted of…

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.

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Details

Case: [2018] AATA 1079
Decision Date: 27 April 2018

CaseChat Overview and Summary

This matter concerned an application to the Administrative Appeals Tribunal for review of the Minister for Home Affairs' decision not to revoke the mandatory cancellation of the applicant's visa. The applicant, a New Zealand citizen who had ordinarily resided in Australia since 2010, did not dispute that he failed to pass the character test due to a substantial criminal record, having been sentenced to imprisonment for dealing with proceeds of crime. The central issue was whether there was "another reason" why the original visa cancellation decision should be revoked, as contemplated by section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

The Tribunal was required to consider the factors for and against revoking the cancellation, as outlined in Direction 65. These included primary considerations such as 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 also had to consider other relevant factors, such as the strength, nature, and duration of the applicant's ties to Australia and the extent of impediments to his removal. The applicant argued that his offending was non-violent, committed under duress, and represented a lower risk to the community, while the Minister's delegate had refused to revoke the cancellation.

The Tribunal reasoned that while the applicant had a substantial criminal record, the offence of dealing with proceeds of crime was characterised as non-violent and at the lower end of seriousness as a representative risk to the Australian community. The applicant had also established ties to Australia through his relationship with his Australian fiancée. However, the Tribunal ultimately affirmed the original decision not to revoke the visa cancellation. The Tribunal found that the primary consideration of protecting the Australian community from criminal or other serious conduct weighed heavily against revocation, and that the applicant's ties to Australia and the circumstances of his offending did not constitute another reason sufficient to warrant revocation of the cancellation decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Applicant lodged an application to the Tribunal for review of the decision on 16 February 2018.BACKGROUND The Applicant was born in New Zealand in 1976 (G10/67). The Applicant first arrived in Australia in 2010 (then 33 years of age) and has ordinarily resided here since then. He has travelled in and out of Australia a number of times as recorded on the Movement Details, and last arrived in Australia on 18 April 2015 (G7/59-60). The Applicant has five children born in 1999, 2005, 2007 and 2009 (twins) respectively who reside in New Zealand (G11/75, 77). The Applicant has been in a relationship with his Australian fiancée, Ms Tucci, since early 2010 (G11/74). The Applicant’s New Zealand Police record shows a single minor traffic conviction in 1995 which resulted in a NZ$50 fine (G5/48). The Applicant’s National Police Certificate indicates no offending history in Australia other than the convictions in the Perth District Court of Western Australia on 16 June 2016 and the Perth Magistrate’s Court on 14 July 2016, referred to in paragraph 6 above (G4/47). After the discovery of the large amount of money (paragraph 7 above refers) and the arrest of the Applicant on 28 April 2015, police conducted a search of the Applicant’s address and motor vehicle. That search produced:·a guitar case containing rolls of plastic cryo-vac bags, a box of latex gloves, a vacuum sealing machine, digital scales and a box of sandwich bags;·two clip seal bags containing $29,550 and $11,000 respectively;·seven packages of Testoviron (Testosterone – anabolic steroids) located in the refrigerator; and·several electronic devices including Apple iPads, mobile phones and a “Phantom Secure” Blackberry phone (Exhibit R2, paras 28-30, 35-40 of the Statement of Detective Sergeant Surman). The Applicant was incarcerated on 16 June 2016 and served his sentence in a minimum security facility before release to parole on 15 February 2018. On release the Applicant was taken into immigration detention and remains detained at Yongah Hill Immigration Detention Centre, Northam. ISSUES As it is clear, and not in dispute, that the Applicant does not pass the character test, the sole issue before the Tribunal, standing in the shoes of the Minister, is whether under s 501CA(4)(b)(ii) of the Act, “... there is another reason why the original decision should be revoked”. In Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, North ACJ elaborated on how to approach this discretion (at [38]):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.

Evidence

Evidence Before The Court

The existence or otherwise of “another reason” should be established on the balance of probabilities.EVIDENCE The evidence before the Tribunal comprised:·the “G Documents” (G1-G37, pp 1-233);·email from Angelina Tucci dated 21 march 2018, attaching 8 documents (Exhibit A1);·news article on Pedro Fernandez (Exhibit A2);·two news articles on Jagdeep Singh (Exhibit A3);·news article on Frank Mafddaferi (Exhibit A4);·Putt Legal Submissions Regarding Revocation of Visa Cancellation dated 7 July 2017 (Exhibit A5);·letter from Angelina Tucci dated 19 March 2018 (Exhibit A6);·five images of the Applicant (Exhibit A7);·a bundle of revocation documentation under cover of email from Angelina Tucci dated 30 March 2018 (Exhibit A8);·the Respondent’s Statement of Facts, Issues and Contentions dated 15 March 2018 (Respondent’s SFIC) (Exhibit R1);·a set of summonsed documents (58 pages) from WA Police, received by the Tribunal on 28 March 2018 (Exhibit R2);·a set of summonsed documents (5 pages) from the Perth Magistrate’s Court received by the Tribunal on 15 March 2018 (Exhibit R3);·the oral evidence of the Applicant; and·the oral evidence of Ms Tucci.LEGISLATIVE AND POLICY FRAMEWORK Section 501(3A) of the Act is a mandatory cancellation power, requiring that:(3A) The Minister 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…(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) of the Act sets out eleven sets of circumstances in which a person will be taken not to pass the character test. The first, set out at section 501(6)(a) of the Act, is that a person has a substantial criminal record. In the Applicant’s case, he has been sentenced to a term of imprisonment of 12 months or more and therefore has a substantial criminal record as defined at section 501(7)(c) of the Act. The Applicant does not contest that he does not pass the character test. Section 501CA of the Act applies if the Minister has made a decision, known as the “original decision”, under section 501(3A) of the Act to cancel a visa that has previously been granted to a person. Section 501CA(4) of the Act provides that:(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. On 6 July 2017, responding to an invitation extended to him under section 501CA(3)(b) of the Act, the Applicant made representations through his then representative seeking revocation of the Minister’s decision. He therefore satisfied the requirement of section 501CA(4)(a) of the Act (G2/14, para 3).

Decision

Reasons for decision

The Applicant attended the hearing on 10 April 2018 and gave evidence. The Applicant was supported by his fiancée who also gave evidence. The Minister was represented by Mr Burgess of Sparke Helmore Lawyers.THE NON-REVOCATION DECISION The Applicant is a 42 year old citizen of New Zealand and last arrived in Australia as the holder of a Special Category Class TY Subclass 444 visa (the visa) on 18 April 2015. The Applicant’s movement details indicate that he first arrived in Australia on 31 January 2010 (G7/59-60). The Applicant was convicted of “dealing with proceeds of crime money or property $100,000 or more” on 16 June 2016, and was sentenced to 3 years and 4 months imprisonment. On 14 July 2016, he was convicted of possession of stolen or unlawfully obtained property and received a further concurrent sentence of 4 months imprisonment (G4/47). . The judge’s sentencing remarks on 16 June 2016 describe the circumstances of the offending. In particular, the Applicant was found to be in possession of $839,080 in cash that had been dug up in his front garden by a Telstra contractor on 28 April 2015. It was noted that the Applicant suspected that the money was from illegal activities and that he was asked to hold on to the money and receive and deliver sums of money to different locations in return for payment. The judge noted that the Applicant received payment for his part in the offending (G6/49-58). On 15 June 2017, the Applicant was notified by letter that the Minister had cancelled his visa under s 501(3A) of the Act. The visa was cancelled on the basis that the Applicant had a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months and that the Applicant was currently 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 Territory (G8/61-64). On 7 February 2018, following a request for revocation of the cancellation decision, a delegate of the Minister decided, under s 501CA(4) of the Act, not to revoke the visa cancellation decision (G3/32-46). The Applicant lodged an application to the Tribunal for review of the decision on 16 February 2018.BACKGROUND The Applicant was born in New Zealand in 1976 (G10/67). The Applicant first arrived in Australia in 2010 (then 33 years of age) and has ordinarily resided here since then. He has travelled in and out of Australia a number of times as recorded on the Movement Details, and last arrived in Australia on 18 April 2015 (G7/59-60). The Applicant has five children born in 1999, 2005, 2007 and 2009 (twins) respectively who reside in New Zealand (G11/75, 77). The Applicant has been in a relationship with his Australian fiancée, Ms Tucci, since early 2010 (G11/74). The Applicant’s New Zealand Police record shows a single minor traffic conviction in 1995 which resulted in a NZ$50 fine (G5/48). The Applicant’s National Police Certificate indicates no offending history in Australia other than the convictions in the Perth District Court of Western Australia on 16 June 2016 and the Perth Magistrate’s Court on 14 July 2016, referred to in paragraph 6 above (G4/47).

Ratio Decidendi

Legal Principle Established

Part C of Direction 65 (paragraphs 13 and 14) sets out considerations that are relevant when determining whether to exercise the discretion in s 501CA(4) of the Act.PRIMARY CONSIDERATIONS Pursuant to paragraph 13(2) of Direction 65, the following are “primary considerations” that the Tribunal must take into account in deciding whether to revoke the cancellation of an applicant’s visa:(i)protection of the Australian community from criminal or other serious conduct; (ii)the best interests of minor children in Australia; and(iii)expectations of the Australian community. Protection of the Australian Community Paragraph 13.1(1) of Direction 65 provides that decision-makers considering the protection of the Australian community should have regard to the principle in paragraph 6.2(1) (set out above at para 30). Paragraph 13.1(2) then identifies two other factors to which consideration should also be given:(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.[Emphasis added]Nature and seriousness of the conduct Paragraph 13.1.1(1) of Direction 65 gives a non-exhaustive list of factors to which decision-makers must have regard in considering the nature and seriousness of a person's criminal conduct as follows: 13.1.1 The nature and seriousness of the conduct(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; (f) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal 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);(h) … The written submission by the Applicant’s then representative, Mr Alisdair Putt, points to the following matters:The offence, committed in 2015, prompting Siueva’s visa cancellation relates to a single count of dealing with money believed to be the proceeds of crime. Siueva maintains that the offence was done under threat of harm to his person and family. The weight of this intimidation as a motivating factor for Siueva’s conduct was accepted by the court at sentencing.The seriousness of the offence is readily acknowledged and recognised by Siueva. However, the indictment can be characterised as a non-violent offence, without circumstances of aggravation, and as such it is at the lower end of seriousness as a representative risk to the Australian community (Exhibit A5, p2).