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Toki and Minister for Home Affairs (Migration)

Toki and Minister for Home Affairs (Migration)

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Toki and Minister for Home Affairs (Migration) [2019] AATA 742 (17 April 2019)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL               )
  )         No: 2019/0435
GENERAL DIVISION  )
Re: Codee Bryan Toki
Applicant

And: Minister for Home Affairs
Respondent
DIRECTION
TRIBUNAL:  Member S Burford
DATE OF CORRIGENDUM:            17 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 reasons for the decision in this application to the following:

Reference to “Ms Macdonald” and “Ms McDonald” in paragraphs [51] and [53] are deleted and replaced with “Ms Jackson”;

In paragraph [138] “bare” should read “bear”; and

In paragraph [189] “fasciliated” should read “facilitated”.

...................................................................
Member

Division:GENERAL DIVISION
File Number(s): 2019/0435
Re:Codee Bryan Toki
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Member S Burford
Date:17 April 2019
Place:Perth

The Reviewable Decision, being the decision of the Respondent’s delegate dated
20 January 2019 not to revoke the mandatory cancellation of the Applicant’s visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth), is affirmed.
............................[sgd]...........................................
Member S Burford
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – capacity of Tribunal to go behind conviction - character test – substantial criminal record – Applicant convicted of unlawful assault – bodily harm against women in a short time period after arriving in – Australia Direction no. 79 – weighing up of primary and other considerations – protection of the Australian community – nature and seriousness of criminal offending – risk to the Australian community – expectations of the Australian community – strength, nature and duration of ties to Australia – extent of impediments if returned to New Zealand – reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 43
Migration Act 1958 (Cth) – s 499, s 499(1), s 499(2A), s 500, s 500(1)(ba), s 500(6B),
s 500(6L), s 501, s 501(3A), s 501(6), s 501(6)(a), s 501(7), s 501(7)(c),
s 501CA, s 501CA(4), s 501G(1)
CASES
Afu and Minister for Home Affairs [2018] FCA 1311
Beckner v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 49
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CZCV and Minister for Home Affairs [2019] AATA 9
Degerli v Minister for Immigration and Ethnic Affairs [1981] FCA 250 (23 December 1981)
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
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v the Minister for Immigration (2018) FCA 1803
Kumeroa and Minister for Home Affairs [2018] AATA 3744
Margach and Minister for Home Affairs [2019] AATA 353
Minister for Ethnic Affairs v Gungor (1982) 4 ALD 575
Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313
Minister…

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 742
Decision Date: 17 April 2019

CaseChat Overview and Summary

This matter concerned an application for review of a delegate of the Minister's decision not to revoke the mandatory cancellation of the applicant's visa. The applicant, who had been convicted of unlawful assault involving bodily harm against a woman shortly after arriving in Australia, sought to have the visa cancellation revoked. The Tribunal was required to consider whether the applicant passed the character test and, if not, whether there was another reason to revoke the cancellation, having regard to the primary and other considerations outlined in Direction No. 79.

The central legal issues before the Tribunal were whether the applicant met the character test under section 501(6) of the Migration Act 1958 (Cth) and, if not, whether there were sufficient grounds to revoke the mandatory visa cancellation under section 501CA(4) of the Act. This involved a detailed assessment of the primary consideration of protecting the Australian community, as mandated by Direction No. 79, and weighing this against other relevant factors, including the applicant's ties to Australia and impediments to his return to New Zealand.

The Tribunal applied established principles regarding the extent to which it could examine the circumstances of a conviction. While it could not challenge the conviction itself or the essential facts upon which it was based, it was permitted to consider the circumstances of the offending for purposes other than impugning the conviction. The Tribunal found that the applicant's denial of certain factual circumstances surrounding his convictions raised concerns about his credibility, the genuineness of his remorse, and his acceptance of responsibility. This, coupled with the serious nature of the domestic violence offences and the risk they posed to vulnerable members of the community, weighed heavily against revocation. The Tribunal concluded that the protection of the Australian community was a paramount consideration that outweighed other factors, including the applicant's submissions regarding rehabilitation and his support network.

Orders

Orders of the court

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Background

Background to the litigation

In HZCP, Bromberg J’s detailed consideration of the authorities[6], summarised the principles to be applied as follows [at 78]:(1) Where a previous conviction is the foundation for the exercise of power by the decision maker, no challenge can be made to the fact that the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.(2) Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on the person seeking to challenge the facts upon which the conviction is necessarily based.(Emphasis added.)[6] Noting in particular the principles espoused by the Court of Appeal of the Supreme Court of Victoria in Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155 Applying the principles expressed in the authorities and summarised by Bromberg J, the Tribunal can consider the entirety of the Applicant’s conduct including the circumstances of the offences. However with respect to the conviction and sentence upon which the power to deport is based, the Tribunal cannot go behind the fact of the conviction or sentence or the essential facts on which they are based. With respect to other convictions there is a “heavy onus” on the Applicant where they seek to challenge the facts upon which those convictions are based. At the hearing the Tribunal explained to the Applicant the submissions made by the Respondent regarding his evidence challenging the factual circumstances of his convictions and sentencing. The Tribunal explained that the Respondent maintained that the Tribunal could not go behind the convictions on which the mandatory Visa cancellation was based. The Tribunal also explained that the Respondent submitted that the Applicant’s denial of the facts as found by the jury and the sentencing judge raised doubt about the degree to which the Applicant accepted responsibility and was remorseful for those acts. Further, the respondent suggested that the failure of the Applicant to recognise the full extent of his criminal conduct may increase the likelihood that he may reoffend in a similar way in the future (Transcript, pages 76-77). In response, the Applicant stated: Well, the – well, this is a character test after all, so my character’s to be that of truth, I say. So I really do think that there was some facts in there that were over-exaggerated. As for the physical violence, I don’t deny that. I said – I said that. Yeah, there’s just – there’s definitely things in there where – that – that just don’t sit right with me. And to just say that I – that I accept it is just to lie. And I don’t want to lie to you. Or else I wouldn’t have taken it to trial.(Transcript, page 77)

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The issues for determination by this Tribunal are:(a)whether the Applicant passes the character test, as defined by s 501(6) of the Act; and(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the mandatory cancellation decision (that is, the Reviewable Decision) should be revoked (see s 501CA(4) of the Act), having regard to the primary and other considerations in Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction no. 79).[1] [1] Minister for Immigration and Border Protection, JURISDICTION This application is made pursuant to s 500(1)(ba) of the Act. This section allows applications to be made to the Tribunal for review of decisions of a delegate of the Respondent under s 501CA(4) of the Act not to revoke a decision to mandatorily cancel a visa. The Reviewable Decision dated 21 January 2019 was delivered to the Applicant by hand under cover of a letter 21 January 2019 (R1, G2). The Applicant signed confirming receipt of the decision on 23 January 2019 (R1, G40). The Applicant lodged his application for review in the Tribunal on 25 January 2019 (R1, G1). The Applicant is in immigration detention and is in the migration zone. He therefore lodged his application for review by the Tribunal within the nine-day period after he received the Reviewable Decision in accordance with s 501G(1) and s 500(6B) of the Act. The Tribunal is satisfied that the application was lodged within time and that the Tribunal has jurisdiction to review the Reviewable Decision. Further, pursuant to s 500(6L) of the Act, the Tribunal must comply with the 84 day timeframe for handing down a decision in this matter. Accordingly, the decision must be handed down by 17 April 2019. Direction no. 79 is applicable due to the date of this decision by the Tribunal. This is discussed in further detail below in the section headed “Direction no. 79”. MATERIAL BEFORE THE TRIBUNAL The hearing took place on 26 March 2019. The Applicant appeared in person and was self-represented. The Respondent was represented by Ms Jackson, Australian Government Solicitor, who appeared in person. The Applicant gave oral evidence and was cross-examined. Both the Applicant and the Respondent made oral submissions. The Applicant called several witnesses in support of his application. In addition to the Applicant, the following witnesses appeared before the Tribunal:·Britney Jane McKenna, the Applicant’s fiancé;·Cheryle McKenna, the Applicant’s fiancé’s mother;·Shari Lu, a friend of the Applicant; and·Raniera Stewart, a former employer of the Applicant.Each of these witnesses gave of oral evidence and was cross-examined. The Tribunal admitted the following documents into evidence at the hearing:·statement of Codee Bryan Toki received by the Tribunal on 20 March 2019 (Exhibit A1);·attachments to the statement of Codee Bryan Toki including witness list (Exhibit A2);·G documents (Exhibit R1);·the Respondent’s Statement of Facts, Issues and Contentions dated 5 March 2019 including amended and next to the statement of facts issues and contentions receipt but the Tribunal on 24 March 2019 (Exhibit R2); and·the Respondent’s Supplementary Relevant Documents received by the Tribunal on 22 March 2019 (Exhibit R3);BACKGROUND

Ratio Decidendi

Legal Principle Established

In this regard the extent of the Applicant’s denial of the facts of the offences gave rise to a concern for the Tribunal both with regard to his credibility as a witness but also to the genuineness of the remorse he expressed for his offending behaviour and his acceptance of responsibility for those acts and their consequences. These matters are dealt with further below.First primary consideration: Protection of the Australian community (paragraph 13(2)(a) of Direction no. 79) Paragraph 13.1(1) of Direction no. 79 provides that: (1)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 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… Paragraph 13.1(2) of Direction no. 79 then provides: (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. As noted above the he Applicant made a number of submissions in relation to his offending and the protection of the Australian community. In summary, these submissions were that:·His offences were caused by alcohol consumption. He has taken steps to become, and to remain sober, and rehabilitated and as a result is a low risk for reoffending;·He takes responsibility for his past actions and the devastating effect they have had on his life and that of his friends and family and as a result is a low risk of reoffending;·His offences were specific to a difficult personal relationship he was in at the time and his actions do not present a risk to the Australian community;·His partner and her family and his friends will provide a support network for him on re-entry to the community which will reduce the risk he will offend or resume consumption of alcohol. The Applicant submitted that, as a result of these factors, if the Reviewable Decision was revoked, his risk of reoffending would be low and the protection of the Australian community would not require that his visa remained cancelled. The Respondent contended that the protection of the Australian community weighed heavily against revocation (R2, [35], page 10). The Respondent submitted that the Applicant’s offending should be viewed as very serious having regard to the following factors:(a)the Applicant’s offences involved significant acts of violence against his then partner, offences which were identified in the direction as serious and which were committed against persons identified in the direction has vulnerable members of the community;(b)the seriousness of the offences is also reflected in the comments of the sentencing judge and the sentence imposed by the court. The fact that the Applicant received a lengthy sentence in his first time before the court indicates the gravity of the offending:(c)the domestic violence nature of the assault convictions presents particular concerns given the risk such offences pose to vulnerable members of the community.