TNJG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 10

TNJG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 10 (9 January 2020)
Division:GENERAL DIVISION
File Number: 2018/0958
Re:TNJG
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:9 January 2020
Place:Sydney

The reviewable decision is set aside and substituted with a decision to revoke the mandatory cancellation of the Applicant’s Class BB (Subclass 155) Five Year Resident Return visa.
.................................[sgd].......................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
MIGRATION – review of decision to not revoke mandatory cancellation of visa under Migration Act – where applicant does not pass the character test – whether there is another reason why the mandatory cancellation should be revoked – consideration of Direction no. 79 – protection of the Australian community – best interests of minor children – expectations of the Australian community – other considerations – where applicant has been found to be owed protection obligations – international non-refoulement obligations – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) – ss 36, 48A, 48B, 197C, 198, 501, 501CA, 501E
CASES
CWGF v Minister for Home Affairs [2019] FCA 1802
DMH16 v Minister for Immigration and Border Protection [2017] FCA 448
FYBR v Minister for Home Affairs [2019] FCAFC 185
Le v Minister for Immigration and Border Protection [2016] FCAFC 120
SECONDARY MATERIALS
Direction no. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
9 January 2020

The Applicant is a citizen of the Philippines who arrived in Australia on 30 November 1985. At that time he was 14 years of age. He returned to the Philippines on 19 August 1992 for a period of six years and returned again from 1999 to 2000 for a period of 10 months. Other than the period when he returned to the Philippines, the Applicant has been a resident of Australia.
The Applicant was the holder of a Class BB (Subclass 155) Five Year Resident Return visa and on 23 June 2017, the Minister’s Department (the Department) issued a notice to the Applicant that his Visa had been mandatorily cancelled under section 501(3A) of the Migration Act 1958 (Cth) (‘the Act’).
On 24 June 2017, the Applicant made representations seeking revocation of the cancellation decision.
On 19 February 2018 the delegate decided under section 501CA(4) of the Act not to revoke the mandatory cancellation and the Applicant was notified of the decision on 19 February 2018.
On 28 February 2018 the Applicant sought review of that decision by the Tribunal. On 11 May 2018 the Tribunal, differently constituted, affirmed the decision under review.
On 9 July 2018 the Applicant sought judicial review of the Tribunal’s decision in the Federal Court of Australia and on 5 July 2019 the matter was remitted to this Tribunal to be determined according to law.
On…

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: TNJG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 10
Case: [2020] AATA 10
Decision Date: 9 January 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of TNJG and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The dispute concerned the mandatory cancellation of the applicant's visa under the *Migration Act 1958* (Cth). It was not contested that the applicant did not pass the character test due to a substantial criminal record, having been sentenced to a term of imprisonment of 12 months or more. The sole issue before the Tribunal was whether there was another reason to revoke the mandatory cancellation.

The Tribunal was required to determine whether the applicant had established another reason why the mandatory cancellation of his visa should be revoked, pursuant to section 501CA(4)(b)(ii) of the *Migration Act*. In making this determination, the Tribunal had to consider the considerations outlined in Direction No. 79, including the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia, and the expectations of the Australian community. The Tribunal also had to consider other relevant factors, including the applicant's international non-refoulement obligations.

The Tribunal acknowledged the applicant's extensive criminal history, largely related to drug addiction, and the seriousness of some of his offences, including assault and breach of an apprehended violence order. It gave significant weight to the government's commitment to protecting the Australian community and noted the applicant's repeated offending, even after receiving a warning about potential visa cancellation. However, the Tribunal also accepted the sincere evidence of the applicant's mother and sister regarding his remorse and efforts to reconnect with his family and religious beliefs while in detention. Ultimately, the Tribunal found that Australia's international non-refoulement obligations, in circumstances where the applicant had been found to be owed protection, outweighed the considerations favouring non-revocation.

Accordingly, the Tribunal determined that there was another reason why the mandatory cancellation of the applicant's visa should be revoked. The Tribunal set aside the original decision and substituted it with a decision to revoke the mandatory cancellation of the applicant's Class BB (Subclass 155) Five Year Resident Return visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

It was not contested that as a matter of law, the Applicant does not meet the character test according to section 501(6)(a) of the Act as the Applicant has been sentenced to a term of imprisonment of 12 months or more and therefore has a ‘substantial criminal record’ as defined in section 501(7)(c). Therefore, the sole issue to be decided by the Tribunal is whether there is another reason why the original decision should be revoked in accordance with section 501CA(4)(b)(ii).EVIDENCEThe Applicant The Applicant gave evidence that he arrived in Australia as a child. He returned to the Philippines for an extended period, but has lived permanently in Australia since 2000. Under cross-examination the Applicant gave evidence that he had started using the drug ‘ice’ when he was in the Philippines, where he was introduced to the drug by a member of his family. He said that he started off using ice approximately once a week, but after approximately a year he began using it once a day. He said that he used ice most of the time that he was in the Philippines. He also said that he made a significant effort to hide his drug use from his family. The Applicant gave evidence that during his time in the Philippines he had virtually no contact with his two eldest children. The Applicant said that he stopped using ice before his return to Australia. He did not use the drug when he first returned to Australia, but started using it again after his separation from his then partner in around 2001/2002. In 2004 he was convicted for assault and breach of an Apprehended Violence Order (‘AVO’) as part of an incident of domestic violence. The Applicant said that he yelled at his former partner and slapped her on the face. He was aware of the AVO at the time of the breach. The Applicant gave evidence that many of his offences were committed whilst under the influence of drugs. He attended a number of rehabilitation programs during the period from 2007 to 2017 which were available to drug offenders including the ‘Bridge’ program, the MERIT program and the Drug Court Program. Although at least in the case of the Drug Court program, the Applicant stopped using drugs for a period, but then returned to using ice. Apart from his numerous convictions the Applicant also acknowledged that he had received a warning from the Department in relation to the potential cancellation of his visa if he were to continue offending. The Applicant gave evidence that he did not take a lot of notice of the warning at the time. Under cross-examination he admitted that up to 29 September 2016 he was still using ice and committing offences. Since that date he has been in gaol or in immigration detention. The Applicant accepted that he had been given many opportunities for rehabilitation. He expressed remorse for his offences and said that since being in immigration detention he has had the opportunity to consider his life, learn from his mistakes and to appreciate his family. He had also taken the opportunity to reconnect with his religious beliefs and was actively involved in church activities.

Decision

Reasons for decision

I give weight to this consideration which weighs in favour of revocation.DECISION Although the two primary considerations of protection of the Australian community and expectations of the Australian community weigh heavily in favour of non-revocation, I find they are outweighed primarily by consideration of the impacts of Australia’s international non-refoulement obligations on the Applicant. Accordingly, I am of the opinion that there is another reason why the mandatory cancellation should be revoked. The reviewable decision is set aside and substituted with a decision to revoke the mandatory cancellation of the Applicant’s Class BB (Subclass 155) Five Year Resident Return visa.

Ratio Decidendi

Legal Principle Established

I accept the evidence of the Applicant’s mother and sister who were obviously close to the Applicant and concerned about his future. They were both honest and sincere in the evidence given to the Tribunal.CONSIDERATION Part C of the Direction sets out the primary and other considerations that must be taken into account, where relevant, when deciding whether to revoke a mandatory cancellation. The primary considerations should generally be given greater weight than the other considerations. Those primary considerations are as follows:(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.Protection of the Australian Community The Applicant has a long history of criminal offences which might broadly be categorised as being related to drug addiction, and extend over a long period of time as demonstrated in the following summary of his National Police Certificate: As demonstrated by the table above, the Applicant started to commit criminal offences in 2004 and continued until he was imprisoned in 2016. The evidence presented to the Tribunal showed that the great majority of these offences related to his drug use. I have considered and give significant weight to the fact that the Government has a commitment to protecting the Australian community from harm as a result of criminal behaviour or other serious conduct by non-citizens.The nature and seriousness of his offending It is clear that a number of the Applicant’s offences were of a serious nature including mail theft, carrying weapons, assault and domestic violence. In particular, I note the Direction in paragraph 13.1.1(b) states that crimes of a violent nature against women are to be viewed very seriously. The Applicant accepted that he had abused his former partner and slapped her on the face. Further, the table above shows the frequency of the Applicant’s offending and a trend towards more serious offending as reflected in the increasingly severe sentences imposed. I find the cumulative effect of the Applicant’s repeated offending shows a disregard for the Australian community, the rights of other people to privacy and protection of their property, and a disregard for authority. I note that this is consistent with drug addiction. It is also of concern that the Applicant admitted to re-offending after he had received a warning from the Department regarding the potential cancellation of his visa, which he understood to be serious, but to which he paid little regard at the time. The Applicant gave evidence that this was due to the influence of drugs. Having regard to all of the relevant principles and the evidence before the Tribunal, the Applicant’s criminal behaviour is of serious concern.The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct It is relevant in considering this factor that the Applicant was unable to overcome his addiction despite attending a number of rehabilitation programs, including under the direction of the Drug Court, over a lengthy period of time. Although this is somewhat mitigated by the fact that he has since expressed genuine remorse and re-engaged with his family.