Tran and Minister for Home Affairs (Migration)

[2018] AATA 3028

Tran and Minister for Home Affairs (Migration) [2018] AATA 3028 (21 August 2018)

Division:GENERAL DIVISION

File Number(s):      2018/3345

Re:Phuc Thien Tran

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member M Griffin QC

Date:21 August 2018

Place:Sydney

The Tribunal’s ultimate conclusion, weighing all relevant factors addressed above, is that the decision not to revoke the cancellation should be affirmed.

........................[sgd]................................................
Senior Member M Griffin QC

CATCHWORDS
MIGRATION - revocation of mandatory visa cancellation – Applicant did not pass character test – whether there is another reason why the original decision should be revoked – Ministerial Direction No. 65 applied – primary considerations – protection of Australian community - best interests of minor children in Australia - expectations of the Australian community – other considerations - strength, nature and duration of Applicant’s ties to Australia - extent of impediments if removed – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth) - ss 499, 501, 501CA

Migration Regulations 1994 (Cth) – reg 2.52

SECONDARY MATERIALS

Direction No. 65, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA – clauses 6, 7, 8, 13, 14

REASONS FOR DECISION

Senior Member M Griffin QC

DECISION

1. The decision under review is a decision made by a delegate of the Minister for Home Affairs, dated 31 May 2018, not to revoke an earlier decision to cancel the Applicant’s Class BB Subclass 155 Resident Return (Five Year) Visa.

   FACTS

2. The Applicant is a 46 year old citizen of Vietnam. He first arrived in Australia in 1988 at the age of 17.

3. On 14 September 2017, the Department of Home Affairs mandatorily cancelled the visa under s 501(3A) of the Migration Act 1958 (the Act), because the Applicant had a substantial criminal record and therefore did not pass the character test under s 501(6)(a) and was serving a full time custodial sentence.

4. On 27 September 2017, the Applicant made representations to the Department about revoking the decision to cancel the visa.

5. On 31 May 2018, a delegate of the Minister decided not to revoke the original decision to cancel the visa under s 501CA(4) of the Act.

6. On 8 June 2018, the Applicant applied to the Tribunal for review of the delegate’s decision.

   OFFENDING HISTORY

7. The Applicant’s history of criminal offending is lengthy and serious.

8. The Applicant has been convicted of 54 offences, including:

   ·5 offences involving violence;

   ·12 offences involving drugs;

   ·2 offences involving firearms;

   ·11 offences involving stealing;

   ·19 driving offences.

9. As a result of these offences, the Applicant has spent more than 8½ years in prison between 1 September 1994 (when he was first arrested) to 11 August 2017 (when he was taken into immigration detention).

10. On 10 September 1996, the Applicant was involved in an assault by 5 men on a single victim. The assailants used wood, fists and feet in the assault. The Applicant’s role in the assault involved kicking the victim’s face and then stomping on the victim’s feet. He was convicted of malicious wounding and sentenced to 9 months’ imprisonment.

11. On 22 or 23 October 1996, the Applicant was armed with a baseball. He robbed a person, taking a gold necklace, $340 in cash and $1,000 in coins.

12. On that same day, he stole a gold necklace from another victim.

13. On 22 October 1996, he was part of a gang who robbed a man and forced him to take him back to his household. The gang members were found to be equally culpable for the actions of the gang. The actions were described by the sentencing judge as follows. Members of the gang lured the victim to a meeting place in Cabramatta. They ran his vehicle off the road and effectively abducted him. The victim was then kicked and punched, threatened with a gun and a ‘vicious bashing [was] inflicted on him’ with a plank of wood. The injuries he incurred were a broken nose, a broken right hand, missing teeth and multiple lacerations to the face. The victim’s wallet was stolen and money demanded from him. The offenders found various addresses in his wallet and made the victim nominate an address where they could get money. Under ‘the most severe duress’ the victim nominated the address of his mother-in-law. The gang then ransacked the mother-in-law’s house, occupied by an elderly couple and a deaf and dumb child. The couple and the child were forced to lie on the lounge room floor, with their hands and feet bound by towelling and sheets until around 3 am. A necklace was taken from the mother-in-law, $2,200 in cash and other items were stolen.

14. On 13 November 1996, the Applicant was in possession of a shortened Bentley shotgun and rohypnol.

15. The Applicant’s offending continued intermittently with the following offending occurring in 2016.

16. On 1 March 2016, the Applicant was arrested for stealing from a person who was withdrawing money from an automatic teller machine. When the police arrested him, he was found in possession of a key with a gym membership tag suspected of being stolen and a sparkplug which is notorious for being used to steal cars. He was sentenced to a good behaviour bond for 12 months.

17. On 6 October 2016, while subject to that good behaviour bond, the Applicant was driving a car while disqualified. At that time he was in possession of 0.23 grams of methylamphetamine and 0.29 grams of heroin. For this conduct, he was convicted of 2 drug offences and 1 driving offence and sentenced to 12 months concurrent sentences for each offence.

18. The following day, he was found driving while disqualified and in possession of 0.7 grams of heroin. He was charged with two offences, and sentenced to 12 months concurrent sentences for each.

19. On 24 October 2016 he was found driving while disqualified and sentenced to 12 months imprisonment for that conduct.

20. The Tribunal regards driving offences as serious, disclosing both disregard for other citizens and contempt for the laws which impose restraints and requirements on those who would drive motor vehicles.

21. In summary, although the Applicant’s offending did not escalate in seriousness, it was persistent, worryingly varied and demonstrated a refusal to recognise the seriousness of his offending despite opportunities for rehabilitation and stern judicial warnings implicit in the custodial sentences.

    Previous warnings

22. On 7 July 2005, the Applicant was warned by the Department that a delegate had decided not to cancel his visa due to his past offending but that ‘conviction for ANY further offences will result in a fresh assessment being made to again consider cancellation of your visa’.

23. On 26 October 2007, the Department again decided not to cancel the Applicant’s visa and issued a second warning:

    Please note that visa refusal or cancellation may be considered if fresh information comes to notice or if you incur a liability on new grounds. Disregard of this warning will weigh heavily against you if your case is reconsidered.

24. On 2 October 2012, the Applicant was issued a formal counselling letter. That letter stated:

    The purpose of this letter is to warn you that further criminal convictions, or any other conduct on your behalf that comes within the scope of subsection 501(6) could result in consideration of the cancellation of your visa.

25. The Applicant does not pass the character test. He has been sentenced to a term of imprisonment of 12 months or more on more than 10 occasions. He therefore has ‘a substantial criminal record’ (see s 501(7)), and so does not pass the ‘character test’ as defined (see s 501(6)(a)).

26. The issue for the Tribunal to determine is whether, having regard to Ministerial Direction No. 65 (Direction 65), the mandatory cancellation of the visa should be revoked.

    Mandatory cancellation framework

27. Under s 501(3A) of the Act the Minister must cancel a visa if the Minister is satisfied that the person does not pass the character test because they have a ‘substantial criminal record’ 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.

28. As set out above, a person has a ‘substantial criminal record’ where, among other things, ‘the person has been sentenced to a term of imprisonment of 12 months or more’ (s 501(7)(c) of the Act).

    Revocation framework

29. Section 501CA(3) provides that as soon as practicable after making a decision under s 501(3A) the Minister must, among other things, notify the person of the decision, provide particulars of relevant information and invite the person to make representations to the Minister, ‘within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision’.

30. Regulation 2.52 of the Migration Regulations 1994 provides that representations need to be made within 28 days after the person is given the notice and the particulars of the relevant information under s 501CA(3) of the Act.

31. Section 501CA(4) of the Act provides that:

    (4) The Minister may revoke the original decision if:
    (a) the person makes representations in accordance with the invitation; and
    (b) the Minister is satisfied:

    (i) that the person passes the character test (as defined by section 501); or

    (ii) that there is another reason why the original decision should be revoked.

32. Section 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation should be revoked following that evaluative exercise, the Tribunal must revoke the visa cancellation.

    Direction 65

33. On 22 December 2014 the Minister issued Direction 65 under s 499 of the Act. Direction 65 is binding on decision-makers, including this Tribunal, performing functions or exercising powers under s 501CA of the Act.

34. The General Guidance at cl 6.2(1) of Direction 65 states 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.

35. Direction 65 sets out the principles that provide a framework within which decision-makers should approach their task of deciding whether to revoke mandatory cancellation decisions. These principles include (see cl 6.3 of Direction 65):

    (1) … 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… and will not cause or threaten harm to individuals in the Australian community.

    …

    (3) A non-citizen who has committed a serious crime, including of a violent or sexual nature … should generally expect … to forfeit the privilege of staying in Australia.

36. In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

37. In determining whether or not to revoke a mandatory cancellation decision, a decision- maker must take into account the considerations set out at Part C of Direction 65 (cl 7(1)(b) and Part C of Direction 65). Part C comprises of ‘primary considerations’ and ‘other considerations’.

38. Decision-makers should generally give greater weight to primary considerations than other considerations. Further, one primary consideration may outweigh other primary considerations (cl 8(4) and (5)).

    Primary considerations

39. The primary considerations which are set out in cl 13 of Part C of Direction 65 are:

    ·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.

    Other considerations

40. The other considerations which are set out of cl 14 in Direction 65 are:

    ·Australia’s international non-refoulement obligations

    ·the strength, nature and duration of ties to Australia

    ·the impact on Australian business interests

    ·the impact on victims, and

    ·the extent of impediments if removed.

    DISCUSSION

    Primary consideration 1: the protection of the Australian community from criminal or other serious conduct

41. The nature and cumulative effect of the Applicant’s criminal history and conduct are very serious.

42. The particular offences committed in September and October 1996 are extremely serious offences. They are crimes involving violence and threats of violence, directed towards vulnerable members of the community (including the victim’s elderly in-laws and their deaf and dumb child). This crime was described by the sentencing judge as involving a ‘reign of terror’, ‘savagery’ and a ‘highly traumatic and terrifying ordeal’. The seriousness of this conduct is reflected in the more than 5 year prison sentence imposed.

43. There is a significant and serious frequency in his offending. The Applicant has received a significant number of custodial sentences, with 11 of these sentences involving imprisonment for a period of more than a year. The Applicant has been imprisoned for more than eight and half years since 1994.

44. The Applicant was warned in writing by the Department on 3 prior occasions about the consequences of his offending on his migration status.

45. The Tribunal concludes the Applicant’s criminal behavior is recidivist. It is possible that the Applicant may repeat his violent conduct, repeat his offending involving stealing, drug possession and serious driving offences.

46. In relation to primary consideration 1, the Tribunal considers the Applicant’s previous offending is particularly serious and infers on the whole of the material that there is a real risk of the Applicant reoffending by the likely commission of further serious offences.

    Primary consideration 2: best interests of minor children in Australia

47. The Applicant has 2 daughters born on 19 May 2005 and 18 April 2011. He claims to be the primary carer and the main financial support for his family. His long-term partner has given evidence of the bond the Applicant has with his daughters.

48. The Applicant’s daughters would benefit from his presence and personal interactions, as well as any practical or financial support he could offer. As such, this consideration weighs in favour of revocation of the visa cancellation.

49. The Tribunal notes, however, that the Applicant’s presence and involvement in his daughters’ daily life has been limited due to the time he has spent in custody. This diminishes somewhat the force of this consideration.

    Primary consideration 3: the expectations of the Australian community

50. The Tribunal accepts that the Applicant’s conduct does not meet Australian community expectations.

51. The Direction makes it clear that the Australian community expects non-citizens to obey Australian laws while in Australia (clause 13.3 of Direction 65).

52. On that basis, the Tribunal concludes that the Applicant’s extensive and violent criminal history would not meet Australian community expectations and the Australian community would expect that the Applicant should not hold a visa.

    Other Considerations

    The strength, nature and duration of the ties to Australia

53. The Applicant has ties to Australia. The Applicant has lived in Australia since the age of 17. He considers Australia to be his home, and he considers that if he were removed from Australia he would lose his life and identity. His relevant ties include to his family unit in Australia, including his partner who he met in 2002, her family, a daughter aged 22, a cousin and a maternal aunt. The Applicant also has 2 minor daughters in Australia.

54. The Applicant’s ties, therefore, weigh in favour of the cancellation decision being revoked.

    Extent of impediments if removed

55. The Applicant says that in his home country he has ‘no where to go and there isn’t any place for me to stay and I have no way of making money to survive and no one to ask for help’.

56. The Applicant has demonstrated that he can work in a variety of jobs and amongst other jobs, he has been a waiter, a warehouse worker, and a construction labourer. He does not suffer from any diagnosed medical or psychological conditions. He does not face any criminal charges or convictions in Vietnam. The Applicant has aunts in Vietnam. The Applicant would encounter some initial difficulties on arrival in Vietnam and this weighs in the Applicant’s favour.

    CONCLUSION

57. There are factors that clearly weigh in favour of revocation of the cancellation decision. These include some (although not insuperable) impediments to returning the Applicant to his country of birth. Of substantial weight are the presence of the Applicant’s two minor children and family members in Australia and the length of time he has lived in Australia, which is, in reality, the whole of his adult life.

58. The Tribunal’s view, however, is that, in the facts and circumstances of this Applicant’s case, these matters overall, carry far less weight than the protection of the Australian community and the expectations of the Australian community in respect of the Applicant’s past offending. The Tribunal concludes that there are powerful reasons to infer because of the Applicant’s past criminal conduct that he is likely to indulge in some types of criminal conduct in the future. Having regard to the Applicant’s past offending history, there is the likelihood that the Applicant will indulge in criminal conduct that will affect members of the Australian community.

59. The Tribunal’s ultimate conclusion, weighing all relevant factors addressed above, is that the decision not to revoke the cancellation should be affirmed.

    SM Griffin QC

I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of
Senior Member M Griffin QC

...........................[sgd].............................................

Associate

Dated: 21 August 2018

Date of hearing:	2 August 2018
Applicant:	In person
Solicitors for the Respondent:	Mr J Hutton, Australian Government Solicitor