Soloai (Migration)

[2018] AATA 3952

Soloai (Migration) [2018] AATA 3952 (7 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jerry Soloai

CASE NUMBER:  1802730

DIBP REFERENCE(S):  CLF2017/122917

MEMBER:K. Chapman

DATE:7 September 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicant a Special Category (Temporary) (Class TY) Subclass 444 visa.

Statement made on 07 September 2018 at 9:36am

CATCHWORDS

MIGRATION – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – behaviour concern non-citizen – criminal history – imprisonment for at least one year – family circumstances – medical conditions – request for Ministerial Intervention – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 13, 32, 65, 351, 359, 501

Migration Regulations 1994, Schedule 2; r 5.15A

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 17 January 2018 to refuse to grant the applicant a Special Category (Temporary) (Class TY) Subclass 444 visa under s.65 of the Migration Act 1958 (‘the Act’).

2. The applicant applied for the visa on 21 December 2017. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of s.32(2)(a)(ii) of the Act, as he is a ‘behaviour concern non-citizen’ due to his criminal antecedents. On 2 February 2018, the applicant applied for review of the visa refusal decision. He submitted references and medical information in support of his application.

3. On 31 July 2018, the Tribunal wrote to the applicant pursuant to sections 359A and 359(2) of the Act inviting him to respond to information concerning his criminal history in New Zealand and also to provide further information concerning whether he has ever been excluded from a country other than Australia. The applicant responded to the invitation by submitting several character references and medical information. The aforementioned material has been duly considered by the Tribunal, as has the material contained in the Departmental file.

4. The applicant appeared before the Tribunal on 6 September 2018 to give evidence and present arguments. The Tribunal also took oral evidence from his partner, Ms Debra Massey. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. However, as detailed below, the Tribunal respectfully recommends that the Minister exercises the powers pursuant to s.351 of the Act with regard to the applicant.

   ISSUES AND LAW

5. The issues in this case are whether the applicant is a ‘behaviour concern non-citizen’, or is in a class of persons declared for the purposes of s.32(2)(c) of the Act. The Special Category visa, Subclass 444, is a temporary visa enabling New Zealand citizens to be lawful non-citizens (as defined in s.13 of the Act) while in Australia. Section 32 of the Act sets out a requirement for the visa as follows:

   Section 32 Special category visas

   (1)  There is a class of temporary visas to be known as special category visas.

   (2)  A criterion for a special category visa is that the Minister is satisfied the applicant is:

   (a)  a non-citizen:

   (i)  who is a New Zealand citizen and holds, and has presented to an officer or an authorised system, a New Zealand passport that is in force; and

   (ii)  is neither a behaviour concern non-citizen nor a health concern non-citizen; or

   (b)  a person declared by the regulations, to be a person for whom a visa of another class would be inappropriate; or

   (c)  a person of a class of persons declared by the regulations, to be persons for whom a visa of another class would be inappropriate.

6. An application for this visa is made by completing an incoming passenger card. Where a non-citizen has a criminal conviction, this is relevant to whether the person is a ‘behaviour concern non-citizen’. The term ‘behaviour concern non-citizen’ is defined in s.5(1) of the Act as follows:

   "behaviour concern non-citizen" means a non-citizen who:

   (a)  has been convicted of a crime and sentenced to death or to imprisonment, for at least one year; or

   (b)  has been convicted of 2 or more crimes and sentenced to imprisonment, for periods that add up to at least one year if:

   (i)  any period concurrent with part of a longer period is disregarded; and

   (ii)  any periods not disregarded that are concurrent with each other are treated as one period;

   whether or not:

   (iii)  the crimes were of the same kind; or

   (iv)  the crimes were committed at the same time; or

   (v)  the convictions were at the same time; or

   (vi)  the sentencings were at the same time; or

   (vii)  the periods were consecutive; or

   (c)  has been charged with a crime and either:

   (i)  found guilty of having committed the crime while of unsound mind; or

   (ii)  acquitted on the ground that the crime was committed while the person was of unsound mind;

   (d)  has been removed or deported from Australia or removed or deported from another country; or

   (e)  has been excluded from another country in prescribed circumstances;

   where sentenced to imprisonment includes ordered to be confined in a corrective institution.

   crime includes any offence.

7. In respect of s.32(2)(b) of the Act, there are no supporting Regulations and this provision currently has no effect. In respect of s.32(2)(c) of the Act, the supporting regulation is set out in r.5.15A and provides as follows:

   Reg 5.15A Special category visas – declared classes of New Zealand citizens

   (1)  For paragraph 32(2)(c) of the Act, a person is in a class of persons for whom a visa of a class other than a special category visas would be inappropriate if the person:

   (a)  is a New Zealand citizen who holds, and has presented to an officer, a New Zealand passport that is in force; and

   (b)  is not a health concern non-citizen; and

   (c)  is covered by subregulation (2) or (3).​

   (2)  A person is covered by this subregulation if the person is a behaviour concern non-citizen only because of having been excluded from a country other than Australia in circumstances that, in the opinion of the Minister, do not warrant the exclusion of the person from Australia.

   (3)  A person is covered by this subregulation if:

   (a) the Minister has, under subsection 501(3A) of the Act (person serving sentence of imprisonment), cancelled a visa held by the person; and

   (b) the person has made representations to the Minister in accordance with the invitation given by the Minister under subsection 501CA(3) of the Act; and

   (c) the decision to cancel the visa is revoked under subsection 501CA(4) of the Act; and

   (d) the Minister has not, under subsection 501BA(2)​ of the Act, set aside the decision to revoke the cancellation of the visa; and

   (e) since the person made the representations to the Minister mentioned in paragraph (b), no new grounds have arisen for the person to fall within the definition of behaviour concern non-citizen in subsection 5(1) of the Act, unless the only new ground that has arisen is the person’s removal or deportation from Australia because of the decision to cancel the visa.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The applicant’s criminal history record from New Zealand was put to him prior to the review hearing for comment or response, in the correspondence dated 31 July 2018 pursuant to s.359A of the Act. This history reveals that on 1 June 1977 the Court at Auckland, New Zealand convicted the applicant of ‘Robbery’ and sentenced him to a period of imprisonment for two years. Further, on 8 March 1976 the Court at Auckland convicted him of ‘2 x Burglary’ and sentenced him to a period of imprisonment for one year, concurrent with another period of imprisonment for one month in respect of another conviction. Additionally, on 29 July 1975 he was convicted by the Court at Auckland of other offences and sentenced to concurrent periods of imprisonment for six, three and one month periods. The applicant also has multiple other convictions in New Zealand between the years of 1972 and 1984, and traffic convictions from 1992.

9. At the review hearing, the applicant accepted that he had received the sentences of imprisonment referred to above and conceded he was a ‘behaviour concern non-citizen’. The applicant also gave oral evidence to the Tribunal confirming that he has never been excluded from a country other than Australia. Following careful consideration, the Tribunal finds that the applicant has been convicted of a crime and sentenced to imprisonment for at least one year, and accordingly he is a behaviour concern non-citizen as defined in s.5 of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the requirements of s.32(2)(a)(ii) of the Act.

10. As referred to previously, there are no supporting Regulations in relation to s.32(2)(b) of the Act. Regarding s.32(2)(c) of the Act, there is no evidence that the applicant has been excluded from a country other than Australia, or that he has been subject to the provisions of s.501 of the Act, in the circumstances provided by r.5.15A. Accordingly, he does not satisfy the requirements of s.32(2)(c) of the Act. It follows that the applicant does not satisfy the requirements of s.32 of the Act and therefore he cannot be granted a Special Category (Temporary) (Class TY) Subclass 444 visa. The Tribunal so finds.

    MINISTERIAL INTERVENTION

11. The applicant gave oral evidence that he is terminally ill with cancer, which is supported by documentary medical information. He has a rare form of cancer and takes medication which would be unaffordable to him but for a funding grant obtained by the treating Hospital in Queensland on his behalf. Further, numerous character references were submitted attesting to the positive influence of the applicant with regard to an extensive network of family members in Australia, including adult children and grandchildren. In particular, the Tribunal notes the applicant is the only family member in regular contact with four of his grandchildren who were placed into foster care by the Queensland Department of Child Safety. References, including from the foster carer for these grandchildren, indicate the applicant plays a critical role in ensuring their welfare. The applicant gave oral evidence verifying the important role he plays in the lives of his grandchildren. The Tribunal notes that the applicant also has a long term Australian citizen partner, Ms Massey, who herself has an extended family network in Australia.

12. Ms Massey gave oral evidence attesting to the nature of the applicant’s cancer and her role in caring for him. Ms Massey and the applicant reside together in the house owned by the former. Ms Massey has ceased her employment to take on caring responsibilities for the applicant. Her assistance in caring for the applicant has been important in ensuring he obtains a proper diet and appropriate living conditions. Ms Massey conveys the applicant to his regular hospital appointments. The applicant indicated all of his family resides in Australia and he would not be able to obtain any family support if he returned to live in New Zealand. The applicant also expressed fear that he would not be able to obtain the medication specially procured for him in Australia in connection with the funding grant if he returned to New Zealand.    

13. The Tribunal notes that the applicant’s criminal history in New Zealand spans the years 1972 to 1984, with minor traffic convictions in 1992. Whilst the applicant conducted himself poorly in the aforementioned years, there is no evidence before the Tribunal that he has been convicted of any further offences. The applicant freely accepted in oral evidence that he had performed misdeeds in the past and expressed his remorse. He also indicated that he turned his life around and has not taken alcohol in 37 years. The Tribunal accepts the aforementioned evidence. It is worth pausing to reflect that the applicant has not been before the Court for any matters of significant gravity in over 30 years. The applicant is now aged 63 years and in the view of the Tribunal is most unlikely to reoffend. Indeed, he has no history of offending in Australia during his residence in this country since 1996.   

14. The applicant requested the Tribunal to refer the case to the Department for consideration by the Minister pursuant to s.351 of the Act, which gives the Minister discretion to substitute for a decision of the Tribunal another decision that is more favourable to them, if the Minister thinks that it is in the public interest to do so.

15. The Minister has issued guidelines explaining the circumstances in which they may wish to consider exercising their public interest powers under s.351 of the Act. Those guidelines indicate that the Minister will generally only consider exercising their public interest powers in cases which are referred to the Department by a review tribunal or which exhibit one or more unique or exceptional circumstances. Departmental policy concerning Ministerial Intervention notes as a relevant factor, strong compassionate circumstances such that a failure to recognise them would result in irreparable harm and continuing hardship to an Australian citizen or an Australian family unit and considerations relating to an Australian citizen’s age, health and psychological state.

16. The Tribunal considers that the terminal illness of the applicant, his positive influence on his extended family network in Australia (including his adult children and his grandchildren in foster care) and his long term relationship with an Australian citizen, represent strong compassionate circumstances, which if not recognised will result in irreparable harm and continuing hardship to multiple Australian citizens and Australian family units.

17. The Tribunal has considered the applicant’s case and the Ministerial guidelines relating to the discretionary power set out in PAM3 ‘Minister’s Guidelines on Ministerial Powers (s345, s351, s391, s417, s454 and s501J)’. For the reasons outlined above, the Tribunal refers this case to the Department for the Minister’s attention. The Tribunal respectfully recommends that the Minister exercises the powers pursuant to s.351 of the Act with regard to the applicant.

    DECISION

18. The Tribunal affirms the decision not to grant the applicant a Special Category (Temporary) (Class TY) Subclass 444 visa.

    K. Chapman
    Member