VFQF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 1665

VFQF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1665 (7 June 2024)
Division:GENERAL DIVISION
File Number:2024/1640
Re:VFQF
APPLICANT

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

DECISION
Tribunal:Senior Member Hon J Rau SC
Date:7 June 2024
Place:Adelaide

The decision under review is affirmed.
................................[sgnd]........................................
Senior Member Hon J Rau SC
CATCHWORDS
MIGRATION – mandatory cancellation of Class WC Subclass 030 Bridging C visa under section 501(3A) – where Applicant does not pass the character test – Applicant has substantial criminal record – Applicant possesses prescribed equipment ––– Applicant engages in cultivating large commercial quantity of controlled plant – Applicant’s Bridging visa expired but he did not leave the country – Applicant has lived in Australia unlawfully – Applicant has obtained work in breach of his Bridging Visa condition – Applicant was working illegally in Australia – Applicant failed to declare his income – Applicant’s immediate family members are Australian citizen and permanent resident – Applicant has a biological son and a step son who are Australian citizens born here – whether the discretion to revoke the visa cancelation under section 501CA(4) should be exercised – consideration of Ministerial Direction No. 99 - decision under review is affirmed.
LEGISLATION
Migration Act 1958 (Cth)
CASES
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Afu v Minister for Home Affairs [2018] FCA 1311
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
FYBR v Minister for Home Affairs [2019] FCA 50
SECONDARY MATERIAL
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023).
REASONS FOR DECISION
Senior Member Hon J Rau SC
7 June 2024
INTRODUCTION

The Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs (“the Respondent”) made under section 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) on 18 March 2024, not to revoke the mandatory cancellation of his Class WC Subclass 030 Bridging C visa (“the Bridging Visa”). His visa was cancelled on 20 February 2023 under section 501(3A) on the basis that he did not pass the character test.[1]
[1] Exhibit 3, G-Documents, G3: Letter from the Department to the Applicant, 14 – 28.
Sections 501(6)(a) and 501(7)(c) of the Act provide that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant fails the character test on account of his conviction for (1) Possess prescribed equipment, (2) Abstract or divert electricity from power system, (3) Traffic in large commercial quantity of controlled drug (cannabis) and (4) Cultivating a large commercial quantity of controlled plants (cannabis), for which the Applicant was sentenced to a term…

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: VFQF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1665
Case: [2024] AATA 1665
Decision Date: 7 June 2024

CaseChat Overview and Summary

This matter concerned the mandatory cancellation of the Applicant's Class WC Subclass 030 Bridging C visa under section 501(3A) of the *Migration Act 1958* (Cth). The Applicant did not pass the character test due to having a substantial criminal record, possessing prescribed equipment, and engaging in the cultivation of a large commercial quantity of controlled plants. The Applicant's bridging visa had expired, and he had remained in Australia unlawfully, working in breach of visa conditions and failing to declare income. The Applicant sought to have the visa cancellation revoked under section 501CA(4). The decision was heard by Senior Member Hon J Rau SC.

The primary legal issue before the Tribunal was whether there was "another reason" why the original decision to cancel the Applicant's visa should be revoked, as contemplated by section 501CA(4) of the *Migration Act 1958* (Cth). In determining this, the Tribunal was required to consider Ministerial Direction No. 99, which provides guidance on the application of section 501 and section 501CA. This involved weighing the Applicant's circumstances against the principles outlined in the Direction, particularly concerning Australia's sovereign right to determine who may remain in the country and the community's expectation that individuals who engage in serious criminal conduct will forfeit the privilege of remaining in Australia.

The Tribunal's reasoning focused on the application of Ministerial Direction No. 99. The Direction outlines principles that a decision-maker must consider, including Australia's sovereign right to exclude non-citizens of character concern, the expectation that those engaging in serious conduct will forfeit the privilege of staying in Australia, and the community's expectation that the government will refuse entry or cancel visas for those with serious character concerns. While the Direction acknowledges that a higher level of tolerance for criminal conduct may be afforded to non-citizens who have lived in Australia for most of their lives or from a very young age, the Tribunal found that the Applicant's conduct, including his substantial criminal record and unlawful status, weighed heavily against exercising the discretion to revoke the cancellation. The Tribunal noted that the Applicant's adverse migration history indicated an intention to remain in Australia on an ongoing or permanent basis, and that he had unsuccessfully sought permanent residency.

The Tribunal affirmed the original decision to cancel the Applicant's visa.

Orders

Orders of the court

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Background

Background to the litigation

Her evidence also diverged from that of the Applicant’s in certain important respects. It was also different to the evidence given by Sister 1. This is discussed below. She was also evasive about certain matters, especially regarding the circumstances surrounding the Applicant’s Protection Visa application in 2017. On balance, she was also more credible than the Applicant.Background Facts The Applicant was born in Vietnam.[4] He has 4 older siblings.[5] The Applicant is now 38 years old. He is a Vietnamese citizen.[4] Ibid Attachment F: Personal Circumstances Form, 47.[5] Ibid 55. On 20 May 1994, the Applicant’s Sister 1 came to Australia. She is an Australian citizen.[6][6] Ibid Attachment H: Submission made by Mr Duy Ngo (dated 26 June 2023), 92-3 at [124]. On 20 August 2000 the Applicant’s Sister 2 came to Australia. She is a permanent resident.[7][7] Ibid 93 at [125]. The Applicant claims that prior to his arrest,[8] he would normally visit his sisters in WA 2-3 times per year.[9] He undoubtedly stayed with them in WA during the period of his first visit to Australia in 2008 and for a period following his return here in 2017. How often he visited them after that is less clear.[8] Between July 2017 and April 2022.[9] Exhibit 3, G-Documents, Attachment H, 93 at [127]. On 6 March 2008, the Applicant’s application for UL-679 - Sponsored Family Visitor visa (“Visitor visa 1”), was granted.[10][10] Exhibit 5, Respondent’s Tender Bundle, TB3: Documents from the applicant’s Protection visa, 111. On 13 March 2008, the Applicant arrived in Perth, Western Australia on Visitor visa 1.[11] The purpose of the visit was to have a holiday and spend time with his sisters and their families.[11] Ibid; Exhibit 3, G-Documents, Attachment V: Movement Record, 198. On 5 June 2008, the Applicant left Australia when Visitor visa 1 expired.[12][12] Exhibit 5, Respondent’s Tender Bundle, TB3, 111. I note that the Applicant apparently did not tell his migration agent about this visit, when giving instructions to him in 2023.[13][13] Exhibit 3, G-Documents, Attachment H, 67 at [13]. Between 9 April and 15 July 2009, the Applicant completed a certificate (level B) in English.[14][14] Ibid Attachment I: Certificate of Foreign Language (dated 01.10.2009), 108. On 1 May 2011,[15] the Applicant says that he got married to X1 (“Spouse 1”), in Vietnam.[16] [15] According to his subsequent Protection Visa application, dated 11 September 2017.[16] Exhibit 5, Respondent’s Tender Bundle, TB3, 88. This is not the only date that the Applicant has given for this marriage.[17] Ms. Spouse 3 told the Tribunal that he had told her, that the marriage to Spouse 1 had occurred in 2009. He gave a different date in a later document.[18] In his application for a Partner Visa dated 15 February 2023, he gave the date of this marriage to 12 July 2017. [17] It was subsequently changed to 12 July 2017, see Exhibit 5, Respondent’s Tender Bundle TB5, 166.[18] Exhibit 5, Respondent’s Tender Bundle, TB5, 189.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. This is not disputed by the Applicant. The Tribunal must consider whether “there is another reason why the original decision should be revoked”.Is there another reason why the original decision should be revoked under section 501CA(4)? In considering whether to exercise this discretion, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[92] [92] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90, this in turn was replaced by Direction 99 on 3 March 2023. For the purposes of deciding whether to refuse or cancel a non-citizen’s visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision. The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. 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, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.(5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years. (6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

Ratio Decidendi

Legal Principle Established

On 2 November 2021, the Applicant received a letter of refusal of the Medical Treatment visa application.[57] The Delegate refused his application because the conditions in clause 602.215 of the Migration Regulations[58] were not satisfied. The detail of the decision is summarised as follows:[57] Ibid TB3, 143-6.[58] Migration Regulations 1994 (Cth).“… In assessing whether the applicant satisfies clause 602.215, I have considered:·whether the applicant has complied substantially with the conditions to which the last substantive visa, or any bridging visa, held by the applicant was subject.·whether the applicant intends to comply with the conditions to which the visa would be subject.·whether the applicant is attempting to obtain the visa to remain in Australia for a longer period, such as maintain ongoing residence in Australia.·the personal circumstances of the applicant that would encourage them to return to their home country at the end of the proposed stay.·the personal circumstances of the applicant in their home country that might encourage them to remain in Australia (for example, economic situation, civil disruption).·conditions that might encourage the applicant to remain in Australia.·the presence of immediate family members in their home country, that is, does the applicant have more close family members living in their home country than in Australia.·On 16 September 2021, the applicant lodged an application for a Medical Treatment visa. It is stated that they would like to remain in Australia to seek medical treatment.….…Evidence of an appointment booking with a psychologist was provided which was later substantiated with a tax invoice showing that the applicant received psychological treatment on 06 October 2021. No further information has been provided.….In their Medical Treatment visa application, the applicant has not provided sufficient documentation to demonstrate their intention or incentive to depart Australia now or in the near future and Departmental records confirm that the applicant has unsuccessfully applied for a permanent visa in Australia.I find that their adverse migration history strongly indicates that the applicant intends to continue to seek a visa pathway to remain in Australia on an ongoing or permanent basis.I have considered the claims and supporting evidence that the applicant has provided with their application. I find that the applicant is attempting to utilise the Medical Treatment visa pathway as a means to maintaining ongoing residence, and that they do not genuinely intend to remain in Australia on a temporary basis.I am not satisfied that the applicant meets the requirements in Clause 602.215 in Schedule 2 of the Migration Regulations.It is necessary for the applicant to satisfy subclause 602.215(1), as they have not satisfied the requirements of subclause 602.215(2). Subclause 602.215(2) requires the applicant to meet the requirements of subclause 602.212(6), which states:Unfit to depart(6) All of the following requirements are met:(a) the applicant is in Australia;(b) the applicant has turned 50;(c) the applicant has applied for a permanent visa while in Australia;(d) the applicant appears to have met all the criteria for the grant of that visa, other than public interest criteria related to health;(e) the applicant has been refused the visa;(f) the applicant is medically unfit to depart Australia due to a permanent or deteriorating disease or health condition, as evidenced by a written statement to that effect from a Medical Officer of the Commonwealth.The applicant does not satisfy subclause 602.215(6) as they have not demonstrated that they are unfit to depart Australia.Decision[59] Exhibit 5, Respondent’s Tender Bundle, TB3, 148-50.As clause 602.215 is not met by the applicant, I find the criteria for the grant of a Medical Treatment visa are not met by the applicant. Therefore, I refuse the application by the applicant for a Medical Treatment visa.”[59]