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Subasinghe and Minister for Home Affairs (Migration)

Subasinghe and Minister for Home Affairs (Migration)

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Subasinghe and Minister for Home Affairs (Migration) [2019] AATA 751 (24 April 2019)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL               )
  )         No: 2019/0524
GENERAL DIVISION  )
Re: Don Subasinghe
Applicant

And: Minister for Home Affairs
Respondent
CORRIGENDUM
TRIBUNAL:  Deputy President Boyle
DATE OF CORRIGENDUM:            1 May 2019
PLACE:            Perth

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision at paragraph [27] in this application from ‘s 501(1)’ to ‘s 501CA(4)’.
...................................................................
Deputy President

Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL               )
  )         No: 2019/0524
GENERAL DIVISION  )
Re: Don Subasinghe
Applicant

And: Minister for Home Affairs
Respondent
CORRIGENDUM
TRIBUNAL:  Deputy President Boyle
DATE OF CORRIGENDUM:            26 April 2019
PLACE:            Perth

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application at paragraph [113] as follows: in the fifth line, delete the word ‘not’ where it appears for the second time.

...................................................................
Deputy President

Division:GENERAL DIVISION
File Number: 2019/0524
Re:Don Subasinghe
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Boyle

Date:24 April 2019
Place:Perth

The Tribunal affirms the decision by the delegate of the Respondent dated
21 January 2019 made under s 501CA(4) of the Migration Act 1958 (Cth) to refuse to revoke the mandatory cancellation of the Applicant’s Class BN, Subclass 136 Skilled Independent visa under s 501(3A) of the Migration Act 1958 (Cth).
..........[sgd]..............................................................
Deputy President Boyle
CATCHWORDS
MIGRATION – Migration Act 1958 (Cth) – mandatory visa cancellation – s 501CA(4) – substantial criminal record – Direction 79 – protection of the Australian community – nature and seriousness of the conduct – the risk to the Australian community – nature of harm – expectations of the Australian community – strength, nature and duration of ties – extent of impediments if removed – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) – ss 499(1), 499(2A), 500(1)(ba), 501(1), 501(3A), 501(6), 501(7), 501(7)(c), 501(7)(d), 501(7A), 501CA(4), 501CA(4)(b)(ii)
CASES
Afu and Minister for Home Affairs [2018] FCA 1311
CCYW and Minister for Home Affairs [2019] AATA 241
CZCV and Minister for Home Affairs [2019] AATA 91
DKXY v Minister for Home Affairs [2019] FCA 495
Doan and Minister for Home Affairs [2019] AATA 169
FYBR v Minister for Home Affairs [2019] FCA 500
HZCP v Minister for Immigrationand Border Protection (2018) FCA 1803
Kumeroa and Minister for Home Affairs [2018] AATA 3744
Le and Minister for Home Affairs [2018] AATA 4126
Margach and Minister for Home Affairs [2019] AATA 353
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313
Nathanson and Minister for Home Affairs [2019] AATA 642
Nigro v Secretary to the Department of Justice (2013) 41 VR 359; 304 ALR 535;
[2013] VSCA 213
Nguyen and Minister for Home Affairs [2018] AATA 3726
Subasinghe v Western Australia

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: [2019] AATA 751
Decision Date: 24 April 2019

CaseChat Overview and Summary

The case of *Subasinghe and Minister for Home Affairs (Migration)* concerned an application for review of a decision to affirm the mandatory cancellation of the applicant's visa. The applicant, a Sri Lankan national, had been granted a visa in 2008 and had resided in Australia with his wife and Australian citizen son since that time. The dispute arose following the applicant's conviction for seven counts of sexual penetration, which led to the mandatory cancellation of his visa under s 501(3A) of the *Migration Act 1958* (Cth). The applicant sought revocation of this cancellation under s 501CA(4) of the Act.

The primary legal issue before the court was whether there was "another reason" why the mandatory visa cancellation should be revoked, as contemplated by s 501CA(4)(b)(ii) of the *Migration Act 1958* (Cth). This required the court to consider the application of Ministerial Direction No. 79, which provides guidance on visa refusal and cancellation, and the revocation of mandatory cancellations. Specifically, the court had to determine how the considerations outlined in Direction 79, particularly those relating to the protection of the Australian community and the strength of the applicant's ties to Australia, weighed in the decision to revoke the cancellation.

The court's reasoning focused on the principles set out in Direction 79, which mandates that decision-makers must consider the protection of the Australian community from criminal or serious conduct. This involves assessing the nature and seriousness of the non-citizen's conduct and the risk of future harm. The Direction also requires consideration of the strength, nature, and duration of ties to Australia, as well as the extent of impediments to removal. In this instance, the court noted that violent and sexual crimes are viewed very seriously under the Direction. The court was required to balance these considerations against factors such as the applicant's family ties in Australia, his business interests, and his brother's Australian citizenship.

The court affirmed the decision under review, meaning the mandatory cancellation of the applicant's visa was not revoked.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Therefore, the only issue for determination by the Tribunal is whether there is another reason why the decision to cancel the visa under s 501(3A) of the Act should be revoked under s 501CA(4)(b)(ii) of the Act.BACKGROUND The Applicant was born in 1969 at Kandi, Ceylon and is a Sri Lankan National. He married his wife in Colombo, Sri Lanka in 1995. Their son was born in Sri Lanka in February 2000. He first arrived in Australia in Sydney with his wife and their son on 7 February 2001 (R4, G57). He held a student visa. The Applicant left Australia on 1 June 2003 (R4, G57) and returned to Sri Lanka because his father was ill. He completed a Bachelor of Business in Marketing and Management in 2005 at Edith Cowan University (R4, G82/737). The final units towards this degree were undertaken at the university’s campus in Sri Lanka. The Applicant was granted the visa on 4 March 2008. He returned to Australia on 15 April 2008 at which time he and his family relocated to Perth. Apart from the period from 25 April 2008 to 27 June 2008, the Applicant has remained in Australia (R4, G57). The Applicant and his wife have been registered proprietors since 16 August 2010, as joint tenants, of the family home in Thornlie in Western Australia. Up until his imprisonment the Applicant lived with his wife and son in that house. The Applicant’s wife and son are Australian citizens. The Applicant has a brother born in 1973. He is an Australian citizen and is resident in Australia. The Applicant’s brother is a co-director with the Applicant and the Applicant’s wife in [omitted] Beauty Salon Pty Ltd (the Beauty Salon) and is a co-director with the Applicant in a family export business, Perth Exporters Pty Ltd. The Applicant’s father, born in 1937, and his mother, born in 1941, are both Sri Lankan nationals and live in Sri Lanka (Applicant’s Supplementary SFIC, para 7).THE APPLICANT’S CRIMINAL HISTORY The Applicant has no criminal convictions other than the seven counts of sexual penetration.THE HEARING AND THE MATERIAL BEFORE THE TRIBUNAL The hearing took place on 8 April 2019. The Applicant was represented by Mr Greg McIntyre SC and the Respondent was represented by Ms Karen Vernon assisted by Ms Elle Tattersall of Sparke Helmore. The following witnesses gave evidence at the hearing:·the Applicant;·the Applicant’s wife;·the Applicant’s son;·Reverend Father Thai Vu, parish priest;·the Applicant’s brother; and·the Applicant’s friend. The following documents were admitted into evidence:·Applicant’s Supplementary Statement of Facts, Issues and Contentions dated 3 April 2019 (Applicant’s Supplementary SFIC) (Exhibit A1);·Applicant’s Statement of Facts, Issues and Contentions dated 8 March 2018 with attached documents (Applicant’s SFIC) (Exhibit A2);·Letter from Reverend Father Thai Vu dated 20 February 2014 (Exhibit A3); ·Letter from Reverend Father Thai Vu dated 25 April 2011 (Exhibit A4);·Respondent’s Supplementary Statement of Facts, Issues and Contentions dated 5 April 2018 (Respondent’s Supplementary SFIC) (Exhibit R1);·Respondent’s Statement of Facts, Issues and Contentions dated 22 March 2019 with attachments (Respondent’s SFIC) (Exhibit R2);·documents produced under Summons from the Western Australia Police and the District Court of Western Australia (Exhibit R3); and·the G-Documents (G1-G87) (Exhibit R4).LEGISLATIVE FRAMEWORK

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 501CA of the Act further provides: (1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.…(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.(Original emphasis.)Ministerial Direction no. 79 Section 499(1) of the Act provides that the Minister may give written directions as follows:(1)The Minister may give written directions to a person or body having functions or powers under this Act ... if the directions are about:(a)the performance of those functions; or(b)the exercise of those powers. Section 499(2A) of the Act states that ‘[a] person or body must comply with a direction under subsection (1).’ On 20 December 2018 the Minister for Immigration, Citizenship and Multicultural Affairs made a direction under s 499 of the Act, named “Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 79). The commencement date for operation of Direction 79 was 28 February 2019 (Paragraph 2 of Section 1 of Direction 79). Paragraph 6.1 sets out the objective of Direction 79. Paragraph 6.1(3) relevantly provides:Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen 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. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case. Paragraph 6.2 of Direction 79 provides general guidance as follows:(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.(2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.

Ratio Decidendi

Legal Principle Established

Further guidance as to how a decision-maker is to apply the considerations in Direction 79 can be found in paragraph 8 of Direction 79 which provides:(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.(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.PRIMARY CONSIDERATIONSFirst primary consideration: Protection of the Australian community from criminal or other serious conduct (13(2)(a)) Paragraph 13.1 of Direction 79 provides that when decision-makers are considering the protection of the Australian community, they:(1)...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 noncitizens 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.(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.Nature and seriousness of the conduct (13.1(2)(a)) Paragraph 13.1.1(1) of Direction 79 provides:(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 of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;c)The principle that 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, are serious;d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;f)The cumulative effect of repeated offending;g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;h)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);i)Where the non-citizen is in Australia, that 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 is serious, as is an offence against section 197A of the Act;