Tian and Minister for Immigration and Multicultural Affairs (Migration) - [2024] ARTA 595

Tian and Minister for Immigration and Multicultural Affairs (Migration) [2024] ARTA 595 (20 December 2024)
Applicant:Yuan Tian
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/8234

Tribunal:  General Member T Eteuati
Place:Brisbane
Date of decision:                 20 December 2024
Date of reasons:                  26 March 2025
Decision:The Tribunal affirms the reviewable decision

..................[SGD]....................
General Member T Eteuati

Catchwords
MIGRATION – non-revocation of mandatory cancellation of a visa – failure to pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 110 – Tribunal finding there is not another reason to revoke the mandatory cancellation decision – decision under review affirmed.
Legislation
Administrative Review Tribunal 2024 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295 FCR 315
DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 301 FCR 344
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Marzano v Minister for Immigration & Border Protection (2017) 250 FCR 548
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005
Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417
Trang and Minister for Home Affairs (Migration) [2019] AATA 4087
Secondary Materials
Ministerial Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024)
Statement of Reasons

This is an application by Yuan Tian (“the Applicant”) for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister” or “the Respondent’) on 11 October 2024 to refuse to revoke, under section 501CA(4) of the Migration Act 1958(Cth) (“the Act”), the cancellation of the Applicant’s Class BB Subclass 155, Resident Return visa.
The Applicant first arrived in Australia in 2007, aged 18, and has taken 7 trips overseas since then. The applicant indicated that these trips were to China. Most of those trips were for around a month in length but the last trip lasted almost 6 months between December 2020 and 12 May 2021 when the Applicant last arrived in Australia.
The Applicant married in 2011. The couple’s first child, a daughter, was born in 2013 and their son was born in 2022.
The Applicant was first found guilty of offences relating to the operation of a motor vehicle in 2013. He was before the courts on five occasions in 2015 and was convicted for a range of different offences including offences relating to the operation of a motor vehicle, failure to appear in accordance with bail acknowledgement, drug offences and stolen property offences. In 2016, the Applicant was convicted of driving while disqualified and stating a false name or home address and was resentenced for a number of his previous crimes.
In 2017, the Applicant was convicted of offences including stolen property offences, offences relating to the operation of a motor…

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

AGLC: Tian and Minister for Immigration and Multicultural Affairs (Migration) [2024] ARTA 595
Case: [2024] ARTA 595
Decision Date: 20 December 2024

CaseChat Overview and Summary

The case involves the Applicant, Tian, who has applied for the revocation of a mandatory visa cancellation under section 501CA of the Migration Act 1958 (Cth). The Minister for Immigration and Multicultural Affairs, represented by the Respondent, opposes the application. The decision to refuse the revocation of the visa cancellation was made by a delegate of the Minister, and this decision is now under review by the Tribunal. The Tribunal must determine whether the Applicant passes the character test or if there is another reason to revoke the mandatory cancellation of the visa.

The central legal issues in this case revolve around the criteria for revoking a mandatory cancellation of a visa under section 501CA of the Migration Act 1958 (Cth). Specifically, the Tribunal needed to assess whether the Applicant passes the character test, which is determined by whether the Applicant has a substantial criminal record, and if not, whether there are other reasons to revoke the mandatory cancellation decision. This assessment required the Tribunal to consider Ministerial Direction No. 110, which outlines the principles and considerations relevant to such decisions.

In reaching its decision, the Tribunal thoroughly examined the Applicant's criminal history, finding that the Applicant had been sentenced to terms of imprisonment of 12 months or more on two occasions, which disqualified him from passing the character test under section 501(6) of the Act. The Tribunal also considered whether there were other reasons to revoke the mandatory cancellation decision in light of the principles set out in Ministerial Direction No. 110. After careful consideration, the Tribunal concluded that there were no other reasons to revoke the mandatory cancellation decision, given the nature and seriousness of the Applicant's criminal conduct and the protection of the Australian community as a primary consideration.

The Tribunal affirmed the Minister’s delegate’s decision, holding that the Minister's decision to refuse to revoke the decision to cancel the Applicant's visa was correct. The Tribunal found that the primary consideration of protecting the Australian community, as outlined in Ministerial Direction No. 110, outweighed any other considerations that might have supported revocation of the cancellation decision. Consequently, the decision under review was upheld.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

If the Tribunal is satisfied that the Applicant passes the character test or that there is another reason why the cancellation decision should be revoked, the Tribunal must find in the Applicant’s favour. The appropriate decision in those circumstances would be for the decision refusing to revoke cancellation to be set aside and for a decision in substitution to be made revoking the cancellation decision.EVIDENCE The Tribunal has considered all of the evidence permissibly before it including the documents described in section 501G of the Act (“G Documents” or “G1”), the documents tendered into evidence by the Applicant and marked as exhibits A1 to A12 and the documents tendered into evidence by the Respondent and marked as exhibits R1 to R4. The evidence contained in these documents is discussed throughout this decision: see ‘Annexure A’ to this decision. The Tribunal has also carefully considered all of the evidence given at the hearing of the matter on 13 and 18 December 2024. The Tribunal has also reviewed the video recording of the hearing.DOES THE APPLICANT PASS THE CHARACTER TEST Section 501(6) relevantly provides:(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) relevantly provides:(7) For the purposes of the character test, a person has a substantial criminal record if:...(c) the person has been sentenced to a term of imprisonment of 12 months or more; or... The Applicant will be taken to have a substantial criminal record, and thus not pass the character test, if he has been sentenced to a term of imprisonment of 12 months or more. Section 501(12) of the Act provides that “imprisonment” includes any form of punitive detention in a facility or institution.Offending history An Australian Criminal Intelligence Commission criminal history report for the Applicant dated 29 May 2024 shows the following offences committed by the Applicant: As the Applicant has been sentenced to terms of imprisonment of 12 months or more on 26 April 2024 and 5 June 2017, the Applicant does not pass the character test. Is there another reason to revoke the mandatory cancellation of the Applicant’s visa? In considering whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa pursuant to section 501CA(4) of the Act, the Tribunal must comply with a direction made under section 499(1) of the Act: section 499(2A) of the Act. The relevant direction is Direction 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 110 or the Direction). The Direction contains 8 principles that inform a decision maker in taking into account the considerations in paragraphs 8 and 9 of the Direction. The principles that are found in paragraph 5.2 of the Direction are as follows:(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 safety of the Australian Community is the highest priority of the Australian Government.(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community.(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measurable risk of causing physical harm to the Australian community.

Decision

Reasons for decision

Therefore, the Tribunal finds that the Minister’s delegate’s decision, to refuse to revoke the decision to cancel the Applicant’s visa, is the correct decision.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

Paragraph 7 of the Direction provides: (1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. (2) The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations. (3) One or more primary considerations may outweigh other primary considerations.PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY Paragraph 8.1(1) of the direction provides:When considering the protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or 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. Paragraph 8.1(2) of the Direction provides: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 conductThe nature and seriousness of the Applicant’s conduct to date When considering the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction provides that 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 and/or sexual 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 197A 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 impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;(e)the frequency of the non-citizen’s offending and/or 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 offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.The nature and seriousness of the Applicant’s conduct