Stretch and Minister for Immigration and Border Protection (Migration)

[2016] AATA 548

Stretch and Minister for Immigration and Border Protection (Migration) [2016] AATA 548 (29 July 2016)

Division	GENERAL DIVISION
File Number(s)	2015/6841
Re	George Stretch
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Deputy President Dr P McDermott RFD
Date	29 July 2016
Place	Brisbane

I affirm the decision under review

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

Deputy President Dr P McDermott RFD

CATCHWORDS

MIGRATION – cancellation of visa on character grounds – applicant does not pass the character test – sentenced to a term of imprisonment of more than 12 months – the protection of the Australian community from criminal or other serious conduct relevant – expectations of Australian community not met – no other reason why the original decision should be revoked

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 42A(1A)
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA

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

REASONS FOR DECISION

Deputy President Dr P McDermott RFD
29 July 2016

INTRODUCTION

1. This is an application for a review of a decision of a delegate of the Minister for Immigration and Border Protection (“the delegate”) dated 8 December 2015. On 23 January 2015 a delegate of the respondent cancelled the Class TY Subclass 444 Special Category (Temporary) visa of Mr George Stretch (“the applicant”) pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“the Act”). The applicant seeks a review of the decision made by a delegate of the respondent on 8 December 2015 under s 501CA(4) of the Act to not revoke the cancellation of the applicant’s visa. This Tribunal has jurisdiction to review the decision of the delegate under s 500(1)(ba) of the Act.

   BACKGROUND

2. On 12 June 2011 the applicant arrived in Australia.[1] On 17 June 2012 he departed to New Zealand with his mother. On 24 June 2012 he returned to Australia and has been based in Australia since then.[2]

   [1] Exhibit A, G-Documents, G15 at p. 111.

   [2] Ibid.

3. The applicant has committed multiple offences in Australia. On 24 February 2014 the applicant was convicted of recklessly endangering serious harm and was sentenced to two years imprisonment to be suspended for a period of 18 months after serving one year imprisonment.[3]

   [3] Exhibit A, G-Documents, G10, p. 95.

4. On 28 October 2014 the applicant was served a notice of intention to cancel his visa.[4] On 8 December 2015 a delegate of the respondent decided under s 501CA(4) of the Act to not revoke the cancellation of the applicant’s visa.[5] On 29 December 2015 the applicant lodged an application for a review of the decision.[6]

   [4] Exhibit A, G-Documents, G4.

   [5] Exhibit A, G-Documents, G6.

   [6] Exhibit A, G-Documents, G1.

5. The applicant was held in custody in a Northern Territory correctional centre at the time of the hearing and appeared by telephone.

   CHARACTER TEST

   Substantial criminal record

6. Section 501(6)(a) of the Act provides that a person does not pass the character test if he or she has a substantial criminal record. Section 501(7)(c) of the Act provides that a person has a “substantial criminal record” if he or she has been sentenced to a term of imprisonment for a period of 12 months or more.

7. As stated above, the applicant was sentenced to a two year period of imprisonment on 24 February 2014 for recklessly endangering serious harm. This sentence was suspended after a year of imprisonment for a period of 18 months.[7] This sentence qualifies the applicant as having a substantial criminal record under s 501(7)(c) of the Act.

   [7] Exhibit A, G-Documents, G9.

   VISA CANCELLATION

8. Section 501(3A) of the Act provides that the Minister must cancel a visa of a person who does not pass the character test because the person has a substantial criminal record by virtue of having been sentenced to a term of imprisonment of 12 months or more. The delegate was satisfied that the applicant had been sentenced to a term of imprisonment of 12 months or more. Therefore, the delegate was required to cancel the applicant’s visa.

9. Section 501CA of the Act applies where the Minister makes a decision under s 501(3A) to cancel a visa (“the original decision”). Section 501CA(4) provides that the Minister may revoke a decision to cancel 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.

10. I will now consider Direction No 65 as it relates to the revocation of a mandatory cancellation of a visa under s 501CA.

    Direction No 65

11. Section 499 of the Act empowers the Minister to give written directions about the performance of functions and the exercise of powers under the Act. The effect of this section is that the Tribunal must comply with Ministerial Direction No 65 (Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA) (“the Direction”). The Direction commenced operation on 22 December 2014 and remains in force.

12. The Preamble provides that the objective of the Act is to regulate, in the national interest, the coming into, and presence in Australia of non-citizens. An objective of the Direction is to provide a framework within which decision-makers approach their decision of whether to exercise the Direction to revoke a mandatory cancellation under s 501CA of the Act.[8]

    [8] 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 at [6.1(4)].

13. The Preamble specifies seven principles which provide a framework within which decision-makers should approach their specific task:

    (1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    (3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4) 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.

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

    (6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

    (7) 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.

14. Paragraph 8 of the Direction provides:

    …

    (2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

    (3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

    (4) Primary considerations should generally be given greater weight than the other considerations.

    (5) One or more primary considerations may outweigh other primary considerations.

15. In deciding whether to revoke the mandatory cancellation of the applicant’s visa, paragraph 13(2) of the Direction provides the following are primary considerations:

    a) Protection of the Australian community from criminal or other serious conduct;

    b) The best interests of minor children in Australia;

    c) Expectations of the Australian community.

16. I will consider each primary consideration in turn.

    Primary consideration A – the protection of the Australian community from criminal or other serious conduct

17. Paragraph 9.1(1) of the Direction provides:

    When considering protection of the Australian community, decision-makers should have regard to the principle 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. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

18. Paragraph 9.1(2) of the Direction provides that decision-makers should also give consideration to:

    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.

19. On 26 May 2010 the applicant was convicted of common assault in New Zealand.[9] The applicant failed to disclose his New Zealand criminal history when he arrived in Australia.

    [9] Exhibit A, G-Documents, G11 at p. 97.

20. The applicant was convicted of a number of other offences whilst in Australia. On 8 December 2012 the applicant was convicted of the offence of aggravated assault in respect of when he chased a person from his vehicle and assaulted him after a car accident.[10] The matter proceeded as a plea of guilty. There was some contention by the applicant at this hearing that the facts were not in accordance with the facts presented to the court. However, he did not contest any of the facts when he pleaded guilty. The applicant was placed on a two week suspended sentence of imprisonment.

    [10] Exhibit A, G-Documents, G14 at p. 107.

21. Another serious offence is the offence of recklessly causing danger and serious harm which occurred in February 2013.[11] The matter proceeded as a plea of guilty and there was no contest on the facts. The material includes the sentencing remarks of Blokland J of the Supreme Court of the Northern Territory in relation to the matter. The facts as contained in Her Honour’s sentencing remarks are the basis for the conviction and I accept them as being the true facts as to what happened. I say this because the applicant attempted to “water down” some of the facts with respect to his conviction. There was no contest at the plea and there was no question of there being a dispute on the facts. I consider that Her Honour’s judgment is a reliable statement of the facts.

    [11] Exhibit A, G-Documents, G9.

22. It appeared from the judgment that the applicant, shortly after the previous conviction and while he was still on a suspended sentence, drove his vehicle towards five people injuring two of them. It would appear that he knew one of them prior to this and there had been some animosity between them. It was fortunate that none of the victims were seriously injured and that two of them took evasive action and were narrowly missed. The vehicle struck three of the people and one of them was hit so heavily that it threw him up in the air and he landed heavily on the footpath.[12]

    [12] Ibid at p. 90.

23. The facts in the case are indicative of the applicant having a serious disregard for the lives and safety of people who he has altercations with. Combined with his earlier offence it is apparent that he has anger issues and a lack of control to the extent that he would be a danger to members of the public.

24. Paragraph 13.1.2(1) of the Direction requires that in considering whether the applicant represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, I should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated is so serious that any risk that it may be repeated may be unacceptable. 

25. Based on the evidence before me, I find that the likelihood that the applicant will engage in further criminal or other serious conduct is high. The only evidence before me about rehabilitation is the courses that were undertaken in prison.  There is no cogent evidence that there is no risk of re-offending.

26. I am not satisfied that the applicant is remorseful for his actions. When asked about the offence he asserted that the people that he drove his car towards could have avoided the path of his car. This response indicates that the applicant has not accepted responsibility for his actions.

27. I consider that the consideration of protecting the Australian community from criminal or other serious conduct strongly favours the non-revocation of the mandatory cancellation of the applicant’s visa.

    Primary consideration 2 – the best interests of minor children in Australia

28. There are no children under the age of 18 years in Australia.

    Primary Consideration 3 - Expectations of the Australian community

29. The Australian community expects non-citizens to obey Australian laws. The violent offences committed by the applicant weigh against the applicant. I find that the expectations of the Australian community weigh strongly in favour of not revoking the mandatory cancellation of the applicant’s visa.

    OTHER CONSIDERATIONS

30. There are no relevant international non-refoulment obligations.

31. During the hearing there was reference made to the applicant being concerned about returning to New Zealand because of possible repercussions arising from an investigation undertaken by New Zealand Police. It would appear from the material available that a member of the applicant’s family testified in 2011 at a murder trial and convictions occurred with respect to those two offenders.[13] The applicant was not a witness in the New Zealand matter. I do not accept that he is a person who is in threat or danger if he returns to New Zealand. The highest that could be put is that there are people who may not think favourably towards his family but it is difficult to see any connection between the applicant and these people. The trial was some years ago and convictions occurred. Although the Detective feels that he may suffer some intimidation and abuse it is obviously not serious enough to warrant police protection.

    [13] Exhibit A, G-Documents, G19 at p. 136.

32. The applicant stated emphatically at the hearing that he wished to return to New Zealand as he disliked being held in detention. He stated that he thought that he would be better cared for in New Zealand. The applicant was advised that he could forward a document to the Tribunal indicating his withdrawal of the process in accordance with s 42A(1A) of the Administrative Appeals Tribunal Act 1975 (Cth). However, he later stated that he would wait until the decision of this Tribunal was handed down.

33. The applicant’s assertion at the hearing that he would prefer to relocate to New Zealand than remain in Australia also undermines his claim that he is concerned about being subject to harm.

34. I have considered the consideration of the “strength, nature and duration of ties” to Australia. My consideration of the “strength, nature and duration of ties” consideration does support the revocation of the mandatory cancellation of the applicant’s visa as his mother and siblings would suffer from his absence.

35. There is no evidence of any impact on Australian business interests which would support the revocation of the mandatory cancellation of the applicant’s visa.

36. The applicant has not placed any evidence before me about the “impact on victims” consideration in paragraph 14.4 of the Direction. 

37. Paragraph 14.5 of the Direction requires the Tribunal to consider the impediments that the applicant will face if he was removed from Australia to his home country in establishing himself and maintaining basic living standards. The fact that the applicant desires to be sent to New Zealand confirms that he is capable of establishing himself and maintaining basic living standards.

    CONCLUSION

38. I am not satisfied that the applicant passes the character test as defined by s 501(6) of the Act.

39. In considering whether there is another reason why the decision to cancel the applicant’s visa should be revoked, I have taken into account the Direction and all the evidence before me. Two of the primary considerations, the protection of the Australian community from criminal or other serious conduct and the expectations of the Australian community do not support the revocation of the mandatory cancellation of the applicant’s visa. These considerations which support the non-revocation of the decision to cancel the applicant’s visa are not outweighed by the considerations which favour revocation of that decision. Therefore, I am not satisfied that there is any reason why original decision made under s 501(3A) should be revoked.

    DECISION

40. I affirm the decision under review.

I certify that the preceding 40 (Forty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

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

Associate

Dated 29 July 2016

Date of hearing	21 June 2016
Applicant	By telephone
Solicitors for the Respondent	Mr B Dube, Sparke Helmore