TCBK and Minister for Home Affairs (Migration) - [2019] AATA 3427

TCBK and Minister for Home Affairs (Migration) [2019] AATA 3427 (13 September 2019)
Division:GENERAL DIVISION
File Number: 2019/3952
Re:TCBK
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member K Raif
Date:13 September 2019
Place:Sydney

The decision of the delegate of the Minister dated 21 June 2019 not to revoke the cancellation of the applicant’s visa is affirmed.
................................[sgd]........................................
Senior Member K Raif
CATCHWORDS
MIGRATION – mandatory cancellation of visa – failure to pass character test – criminal record – whether the discretion to revoke the cancellation should be exercised – Direction No. 79 – primary considerations – protection of the Australian community – best interests of minor children – expectations of the Australian community – other considerations –where applicant is owed protection obligations – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) – ss 499, 500, 501, 501CA
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
DKXY v Minister for Home Affairs [2019] FCA 495
Do and Minister for Immigration and Border Protection [2016] AATA 390
Minister for Immigration and Multicultural Affairs v SRT (1991) 91 FCR 234
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Waits and MIMIA [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA
REASONS FOR DECISION
Senior Member K Raif
13 September 2019
Background

This is an application for review of a decision of the delegate of the Minister not to revoke the cancellation of the applicant’s Class XA Subclass 866 Protection visa.
The applicant is a national of Iran, born in April 1980. He entered Australia as an unauthorised maritime arrival. He made an application for a protection visa which was granted to him in November 2011.
In March 2013 the applicant was convicted of two counts of aggravated indecent assault and one count of common assault and received a sentence of two years imprisonment, which was suspended. In August 2017 the applicant was convicted of failing to comply with reporting obligations. In June 2018 the applicant was convicted of providing false / misleading information, failing to comply with reporting obligations, stalking / intimidation intend fear physical harm (domestic) and common assault. He received sentences of two to nine months imprisonment.
In February 2015 the applicant received a Notice of Intention to Consider the Cancelation (NOICC) of his visa. The applicant responded to the Notice and his visa was not cancelled at that time. Following further convictions, on 10 August 2018 the Class XA Protection visa was cancelled under s. 501(3A) of the Migration Act 1958 (‘the Act’) because it was determined that the applicant did not pass the character test. The applicant was invited, and made representations about the revocation of the cancellation of his visa. On 24 June 2019 a decision was made under s. 501CA(4) not to revoke the cancellation. The applicant…

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.

Continue reading TCBK and Minister for Home Affairs (Migration)

Details

AGLC: TCBK and Minister for Home Affairs (Migration) [2019] AATA 3427
Case: [2019] AATA 3427
Decision Date: 13 September 2019

CaseChat Overview and Summary

This matter concerned an application by TCBK for the revocation of a mandatory visa cancellation decision made by the Minister for Home Affairs. The applicant failed to pass the character test due to a criminal record. The Administrative Appeals Tribunal (AAT) was required to consider whether the discretion to revoke the cancellation should be exercised, applying Direction No. 79.

The legal issues before the Tribunal were whether the primary considerations under Direction No. 79, specifically the protection of the Australian community and the best interests of minor children, weighed in favour of revoking the cancellation. The Tribunal also considered other relevant considerations, including whether the applicant was owed protection obligations.

The Tribunal reasoned that the applicant had a substantial criminal record, including serious offences against a child and breaches of reporting obligations related to registrable offences and domestic violence. The Tribunal found that the protection of the Australian community was a significant consideration, particularly given the nature and circumstances of the offences. While acknowledging the applicant's submission that he was owed protection obligations, the Tribunal ultimately determined that these considerations did not outweigh the need to protect the Australian community. The Tribunal affirmed the original decision to cancel the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal finds that the applicant has been sentenced to a term of imprisonment of 12 months or more. He has a substantial criminal record as defined in s. 501(7)(c) and (d) of the Act. As the applicant has a substantial criminal record, he does not pass the character test. IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED? The applicant made a request for revocation of the cancellation decision on 13 August 2018. The Tribunal has considered the applicant’s comments, in addition to the evidence subsequently provided to the delegate and the Tribunal by the applicant and the respondent. The Tribunal’s considerations are set out below with regard to the Direction 79.Primary considerations Protection of the Australian community As noted above, the applicant has been convicted of several offences in Australia. The nature and the circumstances of the applicant’s offences are set out in the sentencing remarks and the Tribunal has also had regard to the Facts Sheets issued by the NSW police. In relation to the 2012 offences, the police Facts Sheet shows that in March 2012 the applicant entered a lift at a train station where the 10 year old complainant was also present. The applicant shook the complainant’s hand, kissed her on both cheeks and said ‘I love you’. It is stated that the applicant placed his hand on the breast of the complainant, later hugged her, snuggled his head into her neck and kissed her on the neck. It is stated that during this, the applicant moved his pelvis forward toward the ten year old complainant as he held her. In oral evidence, the applicant conceded that some of the facts set out in the police fact sheet in relation to the 2012 offence were substantially correct although he also stated that he has no recollection of these events and that he was unsure about the age of the victim. The applicant conceded that the information in the police reports has happened and the Tribunal is mindful that the applicant pleaded guilty to the 2012 offence, as stated in the court report. The applicant conceded that what he did was wrong. In her sentencing remarks of 1 March 2013, Magistrate Sinclair noted that the defendant’s behaviour was ‘quite serious’. Magistrate Sinclair stated that: …the community generally will not countenance offences against children. Your conduct towards her was quite serious given her age, that she was a stranger, that the offences took place on railway property and at least part of the offending behaviour was in the confines of a lift with very little avenue of escape. In relation to the 2017 offence, the police Facts Sheet indicates that the applicant was convicted of a registrable offence and was required to report to the NSW police annually, which was explained to the applicant. It is stated that in March 2014 the applicant failed to report but reported instead in May 2014 when his obligations were again explained to him. In February 2017 the applicant advised the police of his change of address, but then failed to report in March 2017. In oral evidence to the Tribunal the applicant claimed that he did attend the police station but the relevant officer was not present and he had no record of attendance, but the applicant concedes that he was aware that he did not comply with his reporting obligations.

Ratio Decidendi

Legal Principle Established

The applicant made a request for revocation of the cancellation decision on 13 August 2018. The Tribunal has considered the applicant’s comments, in addition to the evidence subsequently provided to the delegate and the Tribunal by the applicant and the respondent. The Tribunal’s considerations are set out below with regard to the Direction 79.Primary considerations Protection of the Australian community As noted above, the applicant has been convicted of several offences in Australia. The nature and the circumstances of the applicant’s offences are set out in the sentencing remarks and the Tribunal has also had regard to the Facts Sheets issued by the NSW police. In relation to the 2012 offences, the police Facts Sheet shows that in March 2012 the applicant entered a lift at a train station where the 10 year old complainant was also present. The applicant shook the complainant’s hand, kissed her on both cheeks and said ‘I love you’. It is stated that the applicant placed his hand on the breast of the complainant, later hugged her, snuggled his head into her neck and kissed her on the neck. It is stated that during this, the applicant moved his pelvis forward toward the ten year old complainant as he held her. In oral evidence, the applicant conceded that some of the facts set out in the police fact sheet in relation to the 2012 offence were substantially correct although he also stated that he has no recollection of these events and that he was unsure about the age of the victim. The applicant conceded that the information in the police reports has happened and the Tribunal is mindful that the applicant pleaded guilty to the 2012 offence, as stated in the court report. The applicant conceded that what he did was wrong. In her sentencing remarks of 1 March 2013, Magistrate Sinclair noted that the defendant’s behaviour was ‘quite serious’. Magistrate Sinclair stated that: …the community generally will not countenance offences against children. Your conduct towards her was quite serious given her age, that she was a stranger, that the offences took place on railway property and at least part of the offending behaviour was in the confines of a lift with very little avenue of escape. In relation to the 2017 offence, the police Facts Sheet indicates that the applicant was convicted of a registrable offence and was required to report to the NSW police annually, which was explained to the applicant. It is stated that in March 2014 the applicant failed to report but reported instead in May 2014 when his obligations were again explained to him. In February 2017 the applicant advised the police of his change of address, but then failed to report in March 2017. In oral evidence to the Tribunal the applicant claimed that he did attend the police station but the relevant officer was not present and he had no record of attendance, but the applicant concedes that he was aware that he did not comply with his reporting obligations. In relation to the 2018 incidents, the police Facts Sheet identifies the victim as the applicant’s partner of about 12 months. It is stated that the applicant was abusive towards his partner and on several occasions he threatened to kill her and her children. On one such occasion when his partner tried to leave their home, the applicant is said to have pushed her using two hands. It is also stated that the applicant failed to inform the police in March 2018 that he had contact with children as he was required to do, while his partner gave a statement to the police detailing the applicant’s contact and activities with children.