Smith and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Case [2021] AATA 1853

Smith and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1853 (23 June 2021)

Division:GENERAL DIVISION

File Number:          2021/2070

Re:Saia Daniel Smith

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A. Nikolic AM CSC

Date:23 June 2021

Place:Melbourne

The Tribunal affirms the decision under review.

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

Senior Member A. Nikolic AM CSC

Catchwords

MIGRATION – Mandatory visa cancellation – citizen of New Zealand – Class TY Subclass 444 Special Category (Temporary) visa – failure to pass good character test – substantial criminal record  – family violence – alcohol and drug abuse issues – anger management issues – right to silence and privilege against self-incrimination – whether another reason to revoke the mandatory cancellation – Ministerial Direction No. 90 applied – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Crimes Act 1958 (Vic)
Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Cases

Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
BVLD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 6
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
FYBR v Minister for Home Affairs (2019) 272 FCR 454
HVLC v Minister for Home Affairs [2019] FCA 616
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545

Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531

Secondary Materials

Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

Sentencing Advisory Council, ‘Imprisonment,” < FOR DECISION

Senior Member A. Nikolic AM CSC

23 June 2021

INTRODUCTION

  1. The Applicant, Mr Saia Smith, seeks review of a decision 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 15 and 16 June 2021. Previous arrangements for a hearing in person were amended at late notice due to continuing restrictions from a state-wide, COVID-19 lockdown commencing in late May 2021. The parties appeared by audio visual means. The Applicant was self-represented, and the Minister was represented by Mr Orchard, a solicitor from Sparke Helmore Lawyers.

  3. For the following reasons the Tribunal affirms the decision under review.

    BACKGROUND

  4. The Applicant was born in Tonga and is a 29-year-old citizen of New Zealand.[1] He lived with his grandparents and twin brother in Tonga until the age of six, before the family moved to New Zealand in 1997 to re-join the Applicant’s mother.[2] The Applicant arrived in Australia at the age of 10 with his mother, stepfather, and twin brother,[3] but has never applied for Australian citizenship.[4] The Applicant stated that his twin brother’s visa was cancelled approximately four years ago, resulting in removal to New Zealand.[5]

    [1] Exhibit R1, 61; 68.

    [2] Exhibit A1, 2 (4.c.).

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AGLC
Smith and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1853
Case
[2021] AATA 1853
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the mandatory cancellation of the applicant's Subclass 444 Special Category (Temporary) visa. The applicant, a citizen of New Zealand, had his visa mandatorily cancelled under section 501(3A) of the *Migration Act 1958* (Cth) due to failing the character test, specifically by having a substantial criminal record. The applicant sought review of the subsequent decision not to revoke this cancellation.

The primary legal issues before the Tribunal were whether the applicant passed the character test, and if not, whether there was another reason to revoke the mandatory cancellation of his visa. This involved assessing the nature and seriousness of the applicant's criminal conduct, including convictions for robbery, failing to answer bail, and multiple counts of recklessly causing injury, intentionally damaging property, and committing an indictable offence whilst on bail, for which he received a 12-month prison sentence. The Tribunal was required to consider Ministerial Direction No. 90, which outlines factors relevant to the protection of the Australian community and the seriousness of a non-citizen's conduct.

The Tribunal affirmed the decision not to revoke the visa cancellation. In its reasoning, the Tribunal applied the principles outlined in Ministerial Direction No. 90, particularly clauses 8.1 and 8.1.1, which emphasise the government's commitment to protecting the Australian community from harm and the expectation that non-citizens will be law-abiding. The Tribunal found that the applicant's criminal history, which included violent offences and repeated offending, was serious and presented a risk to the community. While acknowledging the applicant's submissions regarding his family in Australia, the Tribunal concluded that these factors did not outweigh the seriousness of his conduct and the need to protect the Australian community. The Tribunal found no other reason to revoke the mandatory cancellation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the following reasons the Tribunal affirms the decision under review. BACKGROUND The Applicant was born in Tonga and is a 29-year-old citizen of New Zealand.[1] He lived with his grandparents and twin brother in Tonga until the age of six, before the family moved to New Zealand in 1997 to re-join the Applicant’s mother.[2] The Applicant arrived in Australia at the age of 10 with his mother, stepfather, and twin brother,[3] but has never applied for Australian citizenship.[4] The Applicant stated that his twin brother’s visa was cancelled approximately four years ago, resulting in removal to New Zealand.[5][1] Exhibit R1, 61; 68.[2] Exhibit A1, 2 (4.c.).[3] Exhibit R1, 118.[4] Ibid, 68 [Question 2].[5] Ibid, 83 [14]; 88 [48]. In December 2011, the Applicant married a woman in Australia who the Tribunal will refer to as Partner 1.[6] They had a daughter together in July 2012, but separated approximately a year later.[7] Partner 1 moved to Western Australia to be closer to her family, where she has since remained.[6] Ibid, 108; Exhibit A1, 2 [4.j.].[7] Exhibit R1, 84 [24]; Exhibit A1, 2 [4.k.]. In August 2019, the Applicant was convicted of Robbery and Fail to answer bail.[8] He was placed on a two-year good behaviour bond (GBB) and ordered to pay $2000 to the Court Fund. He breached the GBB through further offending.[8] Exhibit R1, 35 [11]-[20]; Exhibit R2, 5-6. In approximately March 2020 the Applicant began a romantic relationship with a woman who the Tribunal will refer to as Partner 2.[9] In June 2020 he was arrested, charged, and remanded in custody for violence against Partner 2.[10] On 9 October 2020, the Applicant was convicted in the Magistrates’ Court of Victoria on two counts each of Recklessly cause injury, Intentionally damage property, and Commit indictable offence whilst on bail. He was sentenced to an aggregate of 12 months imprisonment, to be served concurrently.[11] [9] Exhibit A1, 2 [5.e.].[10] Exhibit R1, 152.[11] Ibid, 23. On 6 January 2021, the Applicant’s visa was mandatorily cancelled by a delegate of the Respondent under s 501(3A) of the Migration Act 1958 (the Act) (the cancellation decision).[12] The Applicant received this decision on 11 January 2021.[13] [12] Ibid, 53-58.[13] Ibid, 60. In January 2021 the Applicant made representations to have the cancellation decision revoked,[14] but on 31 March 2021, the Respondent declined to do so (the non-revocation decision).[15] He was advised of this by letter dated 6 April 2021[16] and subsequently asked the Tribunal to review the non-revocation decision.[17][14] Ibid, 61-80; 115-117.[15] Ibid, 6. [16] Ibid, 4-5.[17] Ibid, 1-3. The Applicant is currently in immigration detention.[18] Pursuant to s 500(6L) of the Act, the Tribunal must make a decision on his application within 84 days of him being notified of the non-revocation decision in accordance with s 501G(1). The 84th day in this matter is 29 June 2021; eight working days after the hearing. [18] Based on s 14 and s 189(1) of the Act.LEGISLATIVE FRAMEWORK

Evidence

Evidence Before The Court

The Applicant was the only witness who give oral evidence at the hearing, which took up most of the first day. When asked why family members and friends who provided supportive statements were not called as witnesses, the Applicant said he wanted to ‘take full accountability…I wanted to take this upon myself today.’ He expressed confidence, however, that if these family members and friends were called, they ‘would have nothing but good words to say’. Applicant’s evidence The Applicant adopted his statement as true and correct. His submissions focussed on the interests of his family in Australia, particularly his daughter. He expressed remorse for his past conduct and said he had addressed his addictions and anger through rehabilitation. Background and family in New Zealand and Australia The Applicant confirmed the factual background at the commencement of these reasons. He had most recently returned to New Zealand in March 2019 for a cousin’s wedding. [35] When asked the cousin’s name, he initially claimed not to have it and then that he could not recall it. The Applicant was also unable to recall where he travelled during other international departures from Australia prior to 2019. [35] Exhibit R1, 118. The Applicant said all his immediate family and other members of his extended family reside in Australia. In response to questions about family members in New Zealand, the Applicant said his twin brother, who was deported from Australia four years ago, lived in New Zealand but was currently imprisoned. He could not count on his brother for any support if repatriated. The Applicant claimed he did not know why his brother was imprisoned, despite confirming they spoke by telephone periodically. During subsequent questioning, the Applicant disclosed that he has a married maternal aunt in New Zealand with several children, and a married cousin with children. He claimed not to communicate with these relatives and said he had last seen them when permitted to attend his grandfather’s funeral under immigration escort in May 2021.Partner 1 and minor children in Australia The Applicant said he was very close to his daughter from a relatively short-lived marriage to Partner 1 during 2011-2012. He recalled being 20 years of age when married and said his priorities at the time were not conducive to ‘settling down.’ He ‘wanted to play sport and be with the fellas,’ which caused arguments and a ‘lot of head clashes’ with Partner 1. When asked about a clinical psychologist’s reference to a ‘disgusting’ relationship with Partner 1, including fighting and attacking each other,[36] the Applicant insisted there was no violence. [36] Ibid, 84 [23]. After separation, the Applicant said Partner 1 returned to her family in Western Australia with their child. He said they did not separate ‘on best terms,’ which resulted in no contact for a period. He contextualised this as: ‘co-parenting with an ex is a challenge.’ He now claimed to have a cordial relationship with Partner 1 ‘for our daughter.’ The Applicant said he and Partner 1 were not divorced but thought she was in a new relationship.

Decision

Reasons for decision

In January 2021 the Applicant made representations to have the cancellation decision revoked,[14] but on 31 March 2021, the Respondent declined to do so (the non-revocation decision).[15] He was advised of this by letter dated 6 April 2021[16] and subsequently asked the Tribunal to review the non-revocation decision.[17][14] Ibid, 61-80; 115-117.[15] Ibid, 6. [16] Ibid, 4-5.[17] Ibid, 1-3. The Applicant is currently in immigration detention.[18] Pursuant to s 500(6L) of the Act, the Tribunal must make a decision on his application within 84 days of him being notified of the non-revocation decision in accordance with s 501G(1). The 84th day in this matter is 29 June 2021; eight working days after the hearing. [18] Based on s 14 and s 189(1) of the Act.LEGISLATIVE FRAMEWORK Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction to review non-revocation decisions. Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment. The ‘character test’ is defined in s 501(6) of the Act, which states inter alia: (6) For the purposes of this section, a person does not pass the character test if: (a)the person has a substantial criminal record (as defined by subsection (7)); or … Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record, including if the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c). Under s 501CA(3) of the Act, the Minister is obliged to give notice of a cancellation decision as soon as practicable after it is made, and to invite the affected person to make representations about revocation. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth). A person whose visa is cancelled under s 501(3A) becomes an unlawful non-citizen within the meaning of s 14 of the Act and is liable to be detained under s 189. Section 198 of the Act provides:198Removal from Australia of unlawful non‑citizens…(2B) An officer must remove as soon as reasonably practicable an unlawful non‑citizen if:(a) a delegate of the Minister has cancelled a visa of the non‑citizen under subsection 501(3A); and(b) since the delegate’s decision, the non‑citizen has not made a valid application for a substantive visa that can be granted when the non‑citizen is in the migration zone; and(c) in a case where the non‑citizen has been invited, in accordance with section 501CA, to make representations to the Minister about revocation of the delegate’s decision—either:(i) the non‑citizen has not made representations in accordance with the invitation and the period for making representations has ended; or(ii) the non‑citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the delegate’s decision.Note: The only visa that the non‑citizen could apply for is a protection visa or a visa specified in the regulations for the purposes of subsection 501E(2).

Ratio Decidendi

Legal Principle Established

Clause 8.1 of the Direction states: (1) When considering protection of the Australian community, decision-makers should keep in mind 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. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. (2) Decision-makers should also give consideration to:a) the nature and seriousness of the non-citizen’s conduct to date; andb) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.Tribunal consideration: The nature and seriousness of the conduct Clause 8.1.1 of the Direction 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 the following:(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:(i) violent and/or sexual crimes;(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;(ii) 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;(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));(iv) where the non-citizen is in Australia, 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, or an offence against section 197 A of the Act, which prohibits escape from immigration detention;(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;(d)the frequency of the non-citizen's offending and/or 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 reoffended 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).