VRRQ and Minister for Immigration and Multicultural Affairs (Migration)

Case [2025] ARTA 9

VRRQ and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 9 (2 January 2025)

Applicant/s:  VRRQ 

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:                2024/8389

Tribunal:  Senior Member A Mercer    

Place:Melbourne

Date:2 January 2025

Decision:The Tribunal affirms the decision under review.

...............................[SGD].........................................

Senior Member A Mercer

Catchwords

MIGRATION – cancellation of Applicant’s permanent Subclass 101 (Child) visa  – sexually based offence involving a child – BVR – Direction 110 – Protection of the Australian community

Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth)
Migration Amendment Act 2024 (Cth)
Migration Amendment (Bridging Visa Conditions) Regulations 2024 (Cth)
Migration Amendment (Removal and Other Measures) Act 2024 (Cth)
Migration Regulations 1994 (Cth)

Cases

CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
HWLJ v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCA 1039
Minister for Home Affairs v HSKJ [2018] FCAFC 217
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40

Secondary Materials

Minister for Immigration and Multicultural Affairs (Cth), Direction No 110: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (21 June 2024) Exhibit HB 1 – Hearing Book containing Minister’s and Applicant’s submissions and documents

Statement of Reasons

  1. On 14 October 2024, the Administrative Appeals Tribunal (the AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)(the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.

  2. This matter concerns an application for review of a decision by a delegate of the Respondent not to revoke the cancellation of the Applicant’s Class AH Subclass 101 Child visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act).

  3. In reconsidering this matter, the Tribunal must decide if the Applicant passes the character test and, if he does not, whether there is another reason the cancellation of his visa should be revoked.

    BACKGROUND

  4. The Applicant was born in Zimbabwe in August 1998. His parents separated when he was approximately two years old and both re-partnered. The Applicant has two half siblings on either side. The Applicant lived mostly with his mother and stayed with his father during holidays, until his father migrated to Australia in 2008. In approximately 2011, he was sent to live with his uncle and aunt and their family, as both his parents had by then migrated from Zimbabwe. He subsequently attended boarding school.

  5. The Applicant was…

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Details
AGLC
VRRQ and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 9
Case
[2025] ARTA 9
Decision Date

CaseChat Overview and Summary

The Applicant, a Zimbabwean national, challenged the decision to cancel his permanent Subclass 101 (Child) visa, which was issued in 2016. The Minister for Immigration and Multicultural Affairs cancelled the Applicant's visa based on his criminal history, which included multiple sexual assaults and other serious offences. The Tribunal was tasked with determining whether the cancellation should be revoked, focusing on the Applicant's character and other mitigating factors.

The primary legal issues involved assessing the Applicant's character under the Migration Act 1958 (Cth) and considering the five primary considerations outlined in Direction 110, including the protection of the Australian community, the nature and seriousness of the Applicant's conduct, his ties to Australia, the best interests of minor children, and community expectations. The Tribunal also had to evaluate whether the Applicant's criminal conduct constituted family violence and whether there were other compelling reasons to revoke the visa cancellation.

The Tribunal found that the Applicant's criminal history, particularly the sexual offences, posed a significant risk to the Australian community. Despite the Applicant's remorse and efforts to address his alcohol use and other underlying issues, the Tribunal concluded that the seriousness of his offences outweighed the mitigating factors. The Applicant's close family ties to Australia and his fear of persecution in Zimbabwe did not sufficiently justify revoking the visa cancellation. The Tribunal also considered the best interests of any minor children in Australia, which were not directly impacted by the Applicant's situation.

Ultimately, the Tribunal decided not to revoke the cancellation of the Applicant's visa. The Tribunal found that the Applicant's criminal conduct, especially the sexual offences, warranted the protection of the Australian community, and that the other primary considerations did not outweigh this concern.

Orders

Orders of the court

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Background

Background to the litigation

In reconsidering this matter, the Tribunal must decide if the Applicant passes the character test and, if he does not, whether there is another reason the cancellation of his visa should be revoked. BACKGROUND The Applicant was born in Zimbabwe in August 1998. His parents separated when he was approximately two years old and both re-partnered. The Applicant has two half siblings on either side. The Applicant lived mostly with his mother and stayed with his father during holidays, until his father migrated to Australia in 2008. In approximately 2011, he was sent to live with his uncle and aunt and their family, as both his parents had by then migrated from Zimbabwe. He subsequently attended boarding school. The Applicant was granted a Class AH Subclass 101 Child visa offshore, and arrived in Australia as the holder of this permanent residence visa on 20 December 2016. Upon his arrival at age 18, he joined his father, step-mother and half sibling in regional Victoria. In August 2017, the Applicant consented to a safe contact family violence order in relation to his half-brother for a period of six months after an incident involving a physical fight with his half-brother. The Applicant left home (stating he was kicked out) in or about June 2018 after concerns about his behaviour; in particular, his alcohol use. He was then in year 12 but did not complete his secondary schooling. The Applicant went to Melbourne after leaving regional Victoria. He tried twice more to complete year 12 as an adult, but did not succeed due to his drinking and unstable accommodation. He commenced a traineeship in a state government department but was dismissed due to his drinking. On 5 December 2021, in the Victorian Bail and Remand Court, the Applicant received a $1,000 fine for the following offending:[1](i)Failure to answer bail;(ii)2 counts of being drunk in a public place(iii)Resist police officer(iv)2 counts of contravening a conduct condition of bail(v)3 counts of unlawful assault[1] HB1, G5, Attachment A, National Criminal History check, 21 September 2023. On 7 June 2022, in the Magistrates’ Court of Victoria, the Applicant received an aggregate sentence of eight months’ imprisonment and an 18-month community corrections order,[2] for the following offending:(i)4 counts of sexual assault(ii)Sexual activity directed at a person(iii)4 counts of committing an indictable offence while on bail(iv)4 counts of contravening a condition of bail(v)Burglary(vi)Theft from a shop[2] HB1, G5, Attachment C Notice of Order Made in Magistrates Court at Melbourne, 7 June 2022. He also received a conviction and discharge for two counts of being drunk in a public place.[3][3] HB1, G5, Attachment C Notice of Order Made in Magistrates Court at Melbourne, 7 June 2022. On 25 July 2022, the Applicant’s visa was cancelled pursuant to s 501(3A) of the Act.[4] The Applicant was notified of the cancellation and invited to make representations about revocation. He did so on 12 August 2022.[5][4] HB1, G5, Attachment Z, 25 July 2022.[5] HB1, G5, Attachment D, 12 August 2022.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Clause 9 of the Direction states: (1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):(a) legal consequences of the decision;(b) extent of impediments if removed;(c) impact on Australian business interests. Legal consequences of decision under section 501 or 501CA The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[54] [54] Ibid, cl 9.1. There are a range of legal consequences of a decision not to revoke the cancellation of the Applicant’s visa. The consequences of a visa refusal or cancellation under s 501 or related provisions include:·unlawful status; ·the likelihood of becoming subject to detention and/or removal;[55]·refusal of other visa applications and cancellation of other visas;[56]·a prohibition on applying for other visas;[57] and ·periods of exclusion and special return criteria may apply.[58][55] Migration Act 1958 (Cth) ss 189, 196, 197C, 198.[56] Ibid s 501F.[57] Ibid s 501E.[58] Ibid s 503, Special Return Criteria (SRC) 5001. Generally, if a visa is cancelled, its former holder becomes an unlawful non-citizen immediately after cancellation.[59] Under s 189 of the Act, the Applicant must be detained and removed as soon as reasonably practicable under s 198.[60][59] Ibid s 15.[60] The Court in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 followed AJL20 v Commonwealth of Australia [2020] FCA 1305 to find the applicant’s detention had at all times been lawful at [112]–[122]. The Tribunal is satisfied that the Applicant would normally be subject to removal as soon as practicable under s 198, and to be detained under s 189 until then. However, the Applicant is subject to a protection finding pursuant to s 197C by virtue of the earlier Administrative Appeals Tribunal (as it then was, and differently constituted) decision 2403701 of 15 May 2024, so cannot be removed to Zimbabwe. As a result of the recent High Court case of NZYQ v MICMA [2023] HCA 37, the Applicant cannot be detained where there is ‘no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future at the time of the Tribunal’s decision’, at [54]. As noted above, the Applicant was granted a BVR on 10 October 2024, which was subject to a range of conditions, including an overnight curfew and the requirement to wear a monitoring ankle bracelet. The Applicant was granted a new BVR on 7 November 2024, which does not have the curfew or monitoring bracelet conditions. However, it requires the Applicant to report daily to the Department by telephone, notify of changes to his address, employment and of any material changes to his circumstances, restricts his employment in certain sectors, forbids him from living or working with children or contacting any of his victims, and requires him to (in summary) cooperate with any efforts by the Australian government to remove him from Australia.

Ratio Decidendi

Legal Principle Established

At hearing on 10 December 2024, the Applicant resiled from some of the above points, and made some additional ones. In summary, he reiterated that he was genuinely remorseful for his offending and had continued to take steps to address his alcohol use and its underlying causes, via regular appointments while in immigration detention, and since his release with an Alcohol and Other Drugs (AOD) counsellor and a psychologist. He indicated that he had developed effective strategies to minimise his drinking and was unlikely to reoffend because of this, and also because he was subject to regular monitoring and meetings as part of the conditions of his BVR, his CCO, and because he was a registered sex offender, because he was now working five days per week, and because he did not want to return to jail. The Applicant also stated that he had close family ties to Australia (principally his father) and that he feared being removed to Zimbabwe or a safe third country. In relation to Zimbabwe, he stated that he feared being persecuted because he was bisexual (a fear considered well founded by the AAT, differently constituted, in May 2024),[19] and was concerned that he would struggle economically if returned there. In relation to being removed to a third country, the Applicant said that he feared that recently passed legislation indicated he might be removed to Papua New Guinea, or another third country, where he would know no one and have no support, and that he might be removed from that country to Zimbabwe, despite the fact that he had a protection finding in respect of Zimbabwe from the AAT. [19] HB1, Attachment W1, 15 May 2024.THE PRIMARY CONSIDERATIONS The Direction contains five primary considerations, which are:(1)protection of the Australian community from criminal or other serious conduct;(2)whether the conduct engaged in constituted family violence;(3)the strength, nature and duration of ties to Australia;(4)the best interests of minor children in Australia;(5)expectations of the Australian community.[20][20] Direction 110, cl 8. The Tribunal has considered each one in turn, keeping in mind the principles in cl 5.2 of the Direction.The protection of the Australian community The Direction requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government and 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.[21] [21] Ibid cl 8.1(1). The Tribunal is directed to have particular regard to the principle that entering or remaining in Australia is a privilege that 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 or the Australian community.[22][22] Ibid. Decision-makers should consider the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.[23][23] Ibid cl 8.1(2).Nature and seriousness of the conduct