Truscott (Migration)

[2023] AATA 1836

Truscott (Migration) [2023] AATA 1836 (8 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nick James Truscott

REPRESENTATIVE:  Mr Nigel James Dobbie

CASE NUMBER:  2209255

HOME AFFAIRS REFERENCE(S):          BCC2022/1598025

MEMBER:Kira Raif

DATE:8 March 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.

Statement made on 8 March 2023 at 14:13pm

CATCHWORDS

MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – incorrect information in Incoming Passenger Card – criminal convictions in Australia – behaviour concern non-citizen – businesses employing Australian staff – lengthy residence in Australia – relationship with an Australian resident – contribution to the community – decision under review set aside     

LEGISLATION

Migration Act 1958, ss 5, 32, 48, 101-105, 107, 109, 140, 166
Migration Regulations 1994, rr 2.41, 3.02

CASES

Liu v MIMIA [2003] FCA 1170 MIAC v Khadgi (2010) 190 FCR 248

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 444 (Special Category) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of New Zealand, born in November 1987. He was last granted the Special Category Class TY visa on 27 March 2017. On 11 May 2022 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that he did not comply with s. 101 of the Act. The applicant provided his response to the NOICC and his visa was cancelled. The applicant seeks review of the delegate’s decision. 

3. The applicant appeared before the Tribunal on 8 March 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner. Several other witnesses attended the hearing to present oral evidence but the Tribunal did not consider it necessary to take oral evidence from them. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

4. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

5. The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise.

6. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s 107 and that the notice issued under s 107 complied with the statutory requirements.

   Was there non-compliance as described in the s 107 notice?

7. The issue before the Tribunal is whether there was non-compliance in the way described in the s 107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s 107 notice was non-compliance with s. 102 of the Act.

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was last granted the Special Category (Class TY) Subclass 444 on 27 March 2017. He travelled to Australia holding a New Zealand passport, having previously departed on 23 March 2017. Upon arrival, the applicant completed an Incoming Passenger Card (IPC) dated 27 March 2017. On the IPC the applicant gave his personal details and, in response to a question whether he had any criminal convictions, the applicant stated ‘no’.

9. The primary decision record refers to the applicant having multiple convictions as follows:

26/10/10	Excluded person fail to lave premises when required	Fine $100 Court costs $79
26/10/10	Excluded person remain in vicinity of licensed premises	Fine $100 Court costs $79
22/07/15	Drive with high range PCA	Participation alcohol interlock program 24 months; fine $1500
30/04/15 18/08/16	Common assault (2 counts)	Community service order 100 hours, Fine $100

1. The primary decision record indicates that the applicant failed to declare any criminal convictions on his previous IPCs. In his response to the NOICC the applicant states that he had made an honest mistake and misunderstood the question to relate to convictions outside of Australia. The Tribunal  is mindful that the question on the IPC does not make that distinction. The question on the IPC is simply ‘do you have any convictions’. It makes no distinction as to where these convictions were recorded.

2. The applicant does not dispute that he has criminal convictions in Australia which he failed to declare on the IPC. The Tribunal finds that the applicant had been convicted of multiple offences, which are set out above. By stating ‘no’ in response to that question on the IPC, the Tribunal finds that the applicant filled in his passenger card in such a way that incorrect answers were given. The Tribunal finds that the applicant did not comply with s. 102(b) of the Act.

3. For these reasons, the Tribunal finds that there was non-compliance with s. 102 by the applicant in the way described in the s 107 notice.

   Should the visa be cancelled?

4. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s 107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s 109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s 109(2).

5. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s 107 notice about the non-compliance, and have regard to any prescribed circumstances: s 109(1)(b) and (c). The prescribed circumstances are set out in reg 2.41 of the Regulations. Briefly, they are:

   The correct information

6. The correct information is that the applicant has several convictions in Australia.

   The content of the genuine document (if any)

7. This is not relevant in the present case.

   Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

8. Section 166(1)(b) of the Act requires a non-citizen to provide information required by the Act or the Regulations and r.3.02(1)(b) of the Regulations provides that a passenger card for a person entering Australia must include a question about criminal convictions. To be granted the Special Category visa, the applicant must have shown that he is not a behaviour concern non-citizen, as required by s.32 of the Act. ‘Behaviour concern non-citizen’ is defined in s.5 of the Act.

9. The applicant submits that he was not a behaviour concern non-citizen, given the nature of his convictions, but the applicant concedes that his criminal history would have been relevant to the decision whether to immigration clear him.

10. The Tribunal finds that the decision to immigration clear the applicant was based, partly, on the information provided in the IPC about the applicant’s convictions. It is not necessary for the Tribunal to decide whether the applicant would have been immigration cleared, had the correct information been disclosed.

    The circumstances in which the non-compliance occurred

11. The applicant claims in his submission to the delegate that he was not feeling well, was tired and had misunderstood the question which he believed related to his convictions overseas. In his statement to the Tribunal the applicant also states that he thought the question on the form related to convictions outside of Australia as the convictions in Australia would be automatically reported to Immigration. The applicant states that he made a genuine mistake and did not intend to mislead. He notes that in the past, he had completed his IPCs in the same way.

12. As noted above, the Tribunal is mindful that there is nothing at all in that question on the IPC that would suggest that only overseas convictions were to be declared or that Australian convictions were not relevant. There is no reasonable basis to make a distinction between information being sought concerning overseas convictions and the Australian convictions.

13. In his submissions to the delegate and the Tribunal the applicant explains the circumstances leading to the convictions and he states that there had been no incidents in the past five years, he undertook counselling and is rehabilitated. The Tribunal acknowledges that evidence but notes that the issue here is not the fact of the convictions, but the applicant’s failure to mention these in his IPC and his indication on the IPC that he had no convictions, which constituted an untruthful answer. It is not the task of this Tribunal to determine if the applicant is of good character.

    The present circumstances of the visa holder

14. In his response to the NOICC the applicant states that he has been living in Australia for over 10 years and has community, business and family ties, as well as his long-term partner. In his statement to the Tribunal the applicant states that he has had connection to Australia since a young child and has lived here permanently since 2004. He considers Australia his home and his entire support structure, his partner and his family are here. In his evidence to the Tribunal the applicant also refers to the length of his residence in Australia, including the six years on the most recent visa when he had not left the country. The Tribunal accepts that evidence.

15. The applicant provided to the Tribunal a number of character references and statements in support of this application, including statement from his partner and his brothers, work colleagues and others. The Tribunal accepts the evidence in those statements.

16. The applicant stated in his submission to the delegate that he owns two businesses in the service industry and employs over 10 staff who rely on him for their income. He also sponsored a full-time hairdresser and would not want to jeopardies his life in Australia. He plans to sponsor another staff member. In his submission to the Tribunal the applicant states that his businesses closed due to Covid and he now runs another business and is responsible for generating sales, building relationships and managing its day to day operations. The applicant states that the business supports himself and his brothers and his brothers would not be able to run the business without him, so the business would probably close if he was to leave Australia. The applicant refers to the business loans he has to repay and the apartment he shares with his partner, stating she could not afford it on her own. The Tribunal is prepared to accept that if the applicant is to depart Australia (which is not necessarily a consequence of his visa being cancelled), it may affect his business and have adverse financial impact on others.

17. The applicant refers to his settlement in Australia, his involvement in the local community and the friendships he has formed. He states that he has financially sponsored local sports and assisted coaching a junior football team. He refers to his ongoing love of sport. The applicant states that he no longer has any connection to New Zealand and would have to ‘start again’. The Tribunal accepts that, given the length of his residence in Australia, the applicant has only a limited connection to New Zealand. The Tribunal accepts that  he would have to re-establish himself in New Zealand, if he was to depart Australia.

18. The applicant refers to having a long term partner of 8 years. He states that they recently moved into a new apartment and plan to start a family. Her family also live in Sydney and his partner supports her elderly parents. The applicant states that he is instrumental in ensuring their two businesses remain operational. The applicant provided to the Tribunal a number of social photographs and a copy of the lease agreement. For the purpose of this review, the Tribunal accepts that the applicant is in a de facto relationship with an Australian resident.

19. The applicant states that his two brothers live in Sydney and are an important support network for him. They have been close since the death of their mother and his elder brother was his guardian. The applicant states that he has a ‘rocky’ relationship with his family in New Zealand and the only family he can rely on live in Australia. The Tribunal is prepared to accept that evidence.

20. The applicant refers to the business commitments of his partner’s family, stating that they could not survive without his support. He states that he does the marketing and other work for the two restaurants. He states that his partner’s parents are in their 70’s and they would not want to leave them without the support of their daughter. The applicant states that his partner could not abandon her family to live with him, if he is to be deported.

21. The Tribunal accepts the applicant’s evidence and accepts that he has strong family, community, social, business and other links to Australia.

    The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

22. Nothing adverse is known about the applicant’s subsequent behaviour concerning his obligations under the above provisions.

    Any other instances of non-compliance by the visa holder known to the Minister

23. The primary decision record indicates that the applicant failed to mention his convictions in the IPCs during his previous entries to Australia and the applicant concedes in his evidence to the Tribunal that there are other instances of non-compliance. He claims that he never intended to deceive.

    The time that has elapsed since the non-compliance

24. The last entry to Australia was made in March 2017 and about six years passed since the non-compliance. That is not an insignificant period of time.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

25. There are no other known breaches of the law since the non-compliance. The applicant explained the various breaches of the law prior to the non-compliance, stating there was a turbulent period in his life which he has been able to put behind him. The applicant states that he has had no issues with the law in the past five years.

    Any contribution made by the holder to the community.

26. The applicant refers in his evidence to the delegate to providing employment and training opportunities to his staff and sponsorship of others. He refers to making a contribution to the local community and sporting activities. In his submissions to the Tribunal the applicant provided evidence of his involvement in various charities and community activities, including providing meals and hairdressing services for the homeless.

27. The applicant refers to his contributions to RSPCA and adoption of rescue dogs. He states that he cannot think about being separated from his dogs.

28. The Tribunal accepts that the applicant has made a significant contribution to the community.

29. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

    Whether there would be consequential cancellations under s 140.

30. There are no persons whose visa would be subject to consequential cancellation.

    If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa.

31. There are no children who would be affected by the cancellation of the visa.

    Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.

32. There is no evidence, and the applicant does not claim, that he would be subjected to any form of harm or persecution as a result of his visa being cancelled or of having to depart Australia. The applicant states that he would not be felt welcome if he was to return to New Zealand, given the circumstances of his departure from Australia, but the Tribunal does not consider these matters give rise to Australia’s protection obligations. The applicant confirms that he does not believe he would be under threat or in any danger.

33. The Tribunal does not consider that Australia’s non-refoulement obligations would be breached as a result of the cancellation.

    Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening

34. If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant may be an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas without the Minister’s intervention, although these options would be limited by the operation of s. 48 and the applicant may be subject to an exclusion period in relation to some visa applications if made offshore. There is no suggestion that the applicant will be indefinitely detained.

    Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).

35. In his evidence to the Tribunal the applicant refers to his heart condition, stating that he is on ongoing medication and has had several hospital admissions and procedures done and he presented to the Tribunal some medical reports. The applicant concedes that he would be able to find a cardiologist in New Zealand but states that  it may take time to find a suitable doctor, given his lack of connections in that country.

36. The applicant states that his condition is exacerbated by stress and he is concerned of the negative effect if he is ‘made to leave’. The Tribunal would have preferred the more probative evidence of a health professional to indicate whether any stress associated with the visa process would affect the applicant’s heart condition but the Tribunal accepts that the applicant has a heart condition and is regularly seeing health professionals and requires ongoing observation and care.

37. The applicant refers to his mental health and states that he is concerned that his deportation will jeopardise his mental health and may cause him to ‘backslide’. The applicant states that he relies on friends in Australia for counselling, support and he has ‘no doubt’ that his mental health will suffer without their support. Again, the Tribunal would have preferred more probative evidence from a health professional about the effect of the visa cancellation on the applicant’s mental health and the Tribunal considers it relevant that the cancellation of the applicant’s visa need not lead to his departure from Australia, nor necessarily to his permanent or even long term exclusion from Australia (should he make an application for another visa in the future either in Australia or offshore).

1. The applicant states that he has no connection to New Zealand, does not have a good relationship with his family there and he states that being in New Zealand brings back the trauma of his mother’s death. The applicant states that he would be starting from scratch as a stranger with no support. The Tribunal accepts that the applicant’s departure from Australia could cause significant hardship to the applicant and his family. As noted above, the cancellation of the visa does not necessarily equate to the applicant having to depart Australia.

2. The applicant states that if he has to leave Australia, his business would close and his brothers would lose their jobs. The restaurants of his parents in law ‘would not last long’ without his contribution. The applicant’s partner, who gave oral evidence to the Tribunal, also referred to their life in Australia and she states that she cannot imagine living overseas. She refers to the presence of their family members in Australia and the dependence of the family business on the support provided by the applicant. the Tribunal accepts that evidence and generally accepts that considerable hardship would  be caused to the applicant and others if his visa is cancelled.

3. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant had not complied with s. 102 of the Act as he gave incorrect answers on his incoming passenger card. The Tribunal has found that there are grounds for cancelling his visa.

4. However, the Tribunal has formed the view that there are strong reasons why the visa should not cancelled. The applicant has been living in Australia since 2004 and has very significant family, social, business and other ties to this country. He is in a long term relationship and his siblings reside in Australia. The Tribunal accepts that the applicant provides support to his partner and siblings, and receives such support from them, and he also provided evidence of having formed extensive social ties. The Tribunal accepts that significant hardship would be caused to the applicant, his family members and others in the community if the applicant was to depart Australia (while acknowledging that this is not necessarily the consequence of the visa cancellation).

5. The Tribunal accepts that the applicant has some health concerns and that he is under regular observation of Australian health professionals and requires ongoing care. The Tribunal also accepts that the applicant has made a contribution to Australia, and has had significant involvement in charitable work. These factors weigh against the cancellation.

6. The Tribunal is prepared to accept that the applicant made a genuine mistake when completing the IPC and while that factor in itself is not determinative, it is important that there did not appear to be any intention to mislead. The Tribunal also places weight on the fact that the applicant may not have been determined to be a  behaviour concern non-citizen if the information was declared on the IPC, that is, it is possible that the applicant would have still been granted the visa and that he would have been immigration cleared if the correct information was known. All these factors weigh strongly against the cancellation.

7. Having regard to all the circumstances, the Tribunal has formed the view that the factors that weigh against the cancellation outweigh other factors.

   Conclusion

8. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

   DECISION

9. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.

   Kira Raif
   Senior Member