Tonga and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 3601

Tonga and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 3601 (10 October 2024)
Division:GENERAL DIVISION
File Number: 2022/4046
Re:Gavin Tonga
APPLICANT

AndMinister for Immigration and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Rebecca Bellamy
Date:10 October 2024
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made by the Respondent's delegate dated 18 May 2022 and instead revokes the cancellation of the Applicant’s visa
................[SGD]................
Senior Member R Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Special Category (Class TY) (Subclass 444) – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 110 – prior good character – less serious offending – relatively low risk of harm – decision under review set-aside
LEGISLATION
Migration Act 1958 (Cth)
CASES
Minister for Home Affairs v Buadromo [2018] FCAFC 151
SECONDARY MATERIAL
Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member R Bellamy
10 October 2024

The Applicant is a 45-year-old citizen of New Zealand who came to Australia on a Special Category (Class TY) (Subclass 444) visa (“visa”) in 2000 when he was 21 years old. He lived a law-abiding, productive life in Australia until he suffered a series of devastating events that started in 2015. He spent the next five years using drugs and committing drug-related crimes. In 2021, his visa was cancelled due to his criminal offending, and he has asked the Tribunal to revoke that cancellation.
The cancellation of his visa was mandatory. Section 501(3A) of the Migration Act 1958 (Cth) (“the Act”) relevantly provides that the Minister must cancel a visa that has been granted to a person if:
·the Minister 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); and
·the person 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.
Under s 501(6)(a) of the Act, a person will not pass the character test if they have “a substantial criminal record”. Section 501(7)(c) of the Act relevantly provides that a person has a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 14 May 2021, the Applicant was sentenced to imprisonment for 14 months, along with other shorter terms. In June 2021, a delegate of the Minister (“the Respondent”) cancelled his visa because he did not pass the character test and he was serving a full-time custodial sentence. The Minister is required to notify a non-citizen whose visa has been cancelled under s 501(3A) of the Act. The notice must include…

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: Tonga and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 3601
Case: [2024] AATA 3601
Decision Date: 10 October 2024

CaseChat Overview and Summary

This matter concerned an application by the Applicant to the Administrative Appeals Tribunal (AAT) for review of the Minister's decision not to revoke the mandatory cancellation of his Special Category (Class TY) (Subclass 444) visa. The Applicant did not pass the character test due to his criminal convictions. The central dispute was whether there was "another reason" to revoke the mandatory cancellation decision, as required by the *Migration Act 1958* (Cth).

The Tribunal was required to determine whether, in light of Ministerial Direction No. 110, there were sufficient grounds to revoke the mandatory cancellation of the Applicant's visa. This involved assessing various considerations, including the protection of the Australian community, the Applicant's past conduct, the risk of future offending, and other relevant factors. The Tribunal had to weigh these considerations to ascertain if the balance tipped in favour of revocation.

In its reasoning, the Tribunal considered the Applicant's history of offending, which included numerous driving offences, dealing with stolen property, and drug possession. However, it noted that none of these offences were violent. The Tribunal specifically addressed an alleged threat to a police officer, concluding that while the Applicant was uncooperative, the threat was not sufficiently serious to constitute an offence against a public official. The Tribunal then weighed the various primary and other considerations as outlined in Ministerial Direction No. 110. It found that while some considerations weighed in favour of revocation, and Primary Consideration 1 (protection of the Australian community) weighed moderately against revocation, the overall balance tipped slightly in favour of revocation.

Consequently, the Tribunal set aside the decision under review and revoked the mandatory cancellation of the Applicant's visa.

Orders

Orders of the court

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Background

Background to the litigation

It was agreed between the parties that Primary Consideration 2 does not apply in this case, and that Other Consideration (a) is neutral. BACKGROUND The Respondent advised that only convictions against the Applicant that were recorded are relied upon in this matter. There were quite a few unrecorded convictions for relatively minor matters in 2015 and 2016. This coincides with the disintegration of the Applicant’s life as he knew it. In fairness to him, I am taking into account that his descent into drugs and crime started at this time. Otherwise, I have no regard to any of the unrecorded convictions or the conduct from which they arose. The Applicant moved to Australia in 2001 at the age of 21. He had a partner and son at that time. He worked as a crane operator, rigger and scaffolder. His parents and most of his siblings were also living in Australia. In 2002, he was detected driving under the influence of liquor (.170 BAC). He was caught speeding between 13 km/h to 20 km/h over the speed limit twice in 2003, once in 2004 and once in 2007. He was detected speeding between 20 km/h to 30 km/h over the speed limit once in 2004. He was caught speeding by less than 13 km/h in 2015 and then in 2016. He was detected either driving unlicensed or driving disqualified twice in 2016, six times in 2017, once in 2019, four times in 2020, and once in 2021. The Applicant spent some years working in Western Australia and Queensland as a FIFO worker in the mining and construction industries. He returned permanently to Brisbane in 2013 or 2014, working in a job that did not require him to be away so much. He developed bilateral tendonitis, which caused him to lose complete use of both his hands. By August 2015, he was unable to continue working and was no longer employable in that kind of work. He recalls that this is when he started to struggle. He received Workcover payments until February 2016. Around that time, his 20-year relationship broke down. He and his partner were arguing about “finances, and my injury, and my ability to do stuff”.[3] He had started using methamphetamine. He tried to save the relationship, but his mother-in-law intervened. She ordered him out of the house. His parents-in-law had bought the house, by paying the deposit, and the Applicant had paid the mortgage for many years, but when he was made to leave, he left with nothing. He did not know how to deal with the break-up. In the words of his brother, Cade, the Applicant “sort of went off the rails”.[4] The Applicant said the break-up was very traumatic and he became a “lost person”.[5] He began to experience frequent panic attacks which left him paralysed and at times caused him to hyperventilate. [3] Transcript, page 52 lines 43 to 44.[4] Transcript, page 154, lines 45 to 46.[5] Exhibit RB, page 65. The Applicant escalated his use of methamphetamine to “numb the pain”.[6] There was a period when he slept outside the house, in his car, because he had nowhere to go, and he was too ashamed to tell his family what was happening. His mother-in-law told the police that he had made a threat, and a Domestic Violence Order (“DVO”) was made against him to protect his ex-partner. She also told the police that he was dealing ice, which was untrue. He said, about his mother-in-law’s allegations, “There was lots of that sort of stuff” and “she wanted me away from the house, and I didn’t – you know, I was lost”.[7] He felt like the police targeted him after that. The Applicant never breached the DVO, which expired in March 2018. It was difficult for the Applicant to spend time with his son. He took to associating with anti-social people. He isolated himself from people who could have helped him because he was embarrassed and ashamed.[6] Transcript, page 113, lines 41 to 42.[7] Transcript, page 115, lines 6 to 7; page 119, lines 1 to 4.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I am now required to weigh all of the Considerations in accordance with the Direction. None of the mandatory considerations weigh heavily one way or another. Primary Consideration 1 weighs to a moderate extent, and Primary Consideration 5 weighs to a low extent, against revocation of the visa cancellation. Primary Consideration 3 weights moderately in favour of revocation of the visa cancellation. Primary Considerations 4 and Other Considerations (b) and (c) each weigh to a limited extent in favour of revocation of the visa cancellation. Even allowing for Primary Consideration 1 to be given more weight than the other considerations, and prioritising the protection of the Australian community, the balance tips slightly in favour of revocation. Therefore, there is another reason to revoke the cancellation of the Applicant’s visa. DECISION The decision under review is set-aside and the cancellation of the Applicant’s visa is revoked.

Ratio Decidendi

Legal Principle Established

In November 2021, the Applicant was transferred to immigration detention. He quickly started attending SMART Recovery sessions. He attends once or twice per week. PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY Paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. I should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community. The Direction provides that “serious conduct” includes behaviour or conduct that does not constitute a criminal offence. In determining the weight applicable to this Primary Consideration, paragraph 8.1(2) of the Direction requires me to give consideration to:(a)The nature and seriousness of the Applicant’s conduct to date; and(b)The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.The Nature and Seriousness of the Applicant’s Conduct to Date When assessing the nature and seriousness of the Applicant’s criminal offending or other conduct to date, I must have regard to the following relevant matters:(a)…(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)…;(ii)crimes committed against…government representatives or officials due to the position they hold, or in the performance of their duties;(iii)…;(iv)…;(c)…the sentence imposed by the courts for a crime or crimes;(d)…;(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)…;(h)….(i)… The Applicant’s offending conduct broadly consists of:·Dealing with stolen property and using stolen vehicles – sometimes with false registration plates;·Possession of drugs and utensils·Driving without a license and driving while disqualified from having a license;·Deliberately failing to co-operate with police, including by providing false information;·Failing to report as required by his bail conditions;·Making off without paying for petrol; and·Breaching community based orders by committing more offences. None of these are violent offences. According to the police records, the Applicant threatened violence once. That threat was allegedly made to a police officer in the performance of her duty. However, it is significant that it was a rather meek, hollow threat, made as he backed away while locked inside a police station where he was obviously at a disadvantage if he tried anything. I am prepared to accept that the Applicant was uncooperative, and therefore obstructed police, but I am not satisfied that he committed an offence against a police officer. Reasonable minds may differ about what constitutes an offence against a public official in the performance of their duty for the purpose of 8.1.1(1)(b)ii of the Direction. I am not satisfied that refusal to obey a direction, accompanied by an obviously hollow threat, in these specific circumstances, fits that description.