Vural and Minister for Home Affairs (Migration) - [2019] AATA 579

Vural and Minister for Home Affairs (Migration) [2019] AATA 579 (29 March 2019)
Division:GENERAL DIVISION
File Number: 2019/0099
Re:Erdal Vural
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member D. J. Morris
Date:29 March 2019
Place:Melbourne

The Tribunal affirms the decision not to revoke the mandatory cancellation of the Applicant’s Class BB Subclass 155 (Five Year Resident Return) visa.
...........[sgd]...................................
Senior Member
Catchwords
MIGRATION – Mandatory cancellation of Applicant’s visa - applicant fails character test – Direction No. 79 – any other reasons to revoke mandatory cancellation – primary considerations – other considerations – any other matter – previous warnings from department about migration status being affected by further offending – reviewable decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), s 33
Migration Act 1958 (Cth), ss 499, 500, 501, 501CA
Migration Regulations 1994 (Cth), Reg 2.52
Cases
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
R v Vo & Vural [2018] VCC
SCJD and Minister for Home Affairs [2018] AATA 4020
Uelese v Minister for Immigration and Border Protection [2015] HCA 15
Secondary Materials
Migration Act 1958 – Direction No. 79 – direction under Section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Made by Minister on 20 December 2018, commenced 28 February 2019).
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954).
REASONS FOR DECISION
Senior Member D. J. Morris
29 March 2019
BACKGROUND

Mr Erdal Vural was born in September 1967 in Ankara, Turkey and is a Turkish citizen. He first came to Australia with his parents in June 1970, aged almost 3. He has returned four times to Turkey for family reasons between 1989 and 2000, living there cumulatively for around eighteen months, but has lived in Australia continuously since January 2000.
In December 1999 Mr Vural was granted a Class BB Subclass 155 (Five Year Resident Return) visa. In 2006 Mr Vural applied for Australian citizenship, but that application was refused in 2007. On 25 June 2018 the Department of Home Affairs (the Department) cancelled Mr Vural’s visa. The cancellation was mandatory under section 501(3A)(b) of the Migration Act 1958 (the Act) because Mr Vural was, at that time, 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; and because the Applicant had a ‘substantial criminal record’ under section 501(7)(c) of the Act, in that he has been sentenced to a term of imprisonment of 12 months or more.
On 5 July 2018 Mr Vural made representations to the Department seeking revocation of the mandatory cancellation decision. On 3 January 2019 a delegate of the Minister for Home Affairs (the Minister) decided, under section 501CA(4) of the Act, not to revoke the mandatory cancellation decision. On 4 January 2019 Mr…

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

Case: [2019] AATA 579
Decision Date: 29 March 2019

CaseChat Overview and Summary

This matter concerned an application by Mr Vural for review of the mandatory cancellation of his visa by the Minister for Home Affairs. Mr Vural failed the character test, triggering the mandatory cancellation of his visa under s 501(3A) of the Migration Act 1958 (Cth). The sole issue before the Tribunal was whether there was "any other reason" why the original decision to cancel his visa should be revoked, pursuant to s 501CA(4)(b)(ii) of the Act.

The Tribunal was required to determine whether, in light of Mr Vural's personal circumstances and history, there were sufficient grounds to revoke the mandatory visa cancellation. This involved assessing the primary considerations and other considerations outlined in Ministerial Direction No. 79, which the Tribunal was bound to follow. The primary considerations included the protection of the Australian community, specifically the nature and seriousness of Mr Vural's past conduct and the risk of future offending.

The Tribunal considered Mr Vural's extensive criminal history, which spanned several decades and included numerous drug offences, offences of violence, and dishonesty. It noted that Mr Vural had been convicted of drug trafficking, and that the Tribunal could not look behind the findings of the courts in relation to these convictions. The Tribunal acknowledged Mr Vural's submissions regarding his drug use, his desire to be a law-abiding citizen, and his participation in a methadone program. However, it found that the seriousness of drug trafficking and its detrimental impact on the community, as highlighted in previous decisions, weighed heavily against revocation. The Tribunal applied the principles from *Gaspar v Minister for Immigration and Border Protection* (2016) 153 ALD 337, treating the assessment of factors for and against revocation as a single process.

The Tribunal affirmed the decision to refuse to revoke the mandatory cancellation of Mr Vural's visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Paragraph 14(1) of the Direction sets out other considerations in relation to revocation requests. They are: International non-refoulement obligations; Strength, nature and duration of ties; Impact on Australian business interests; Impact on victims; and Extent of impediments if removed. The Direction states that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (see paragraphs 8(4) and 8(5) of the Direction).The Applicant’s Evidence Mr Vural gave evidence about emigrating in 1970 as a young child with his parents. In regard to his trips back to Turkey as a young man, Mr Vural said that at the time his mother was unwell and had returned to Turkey. He visited her several times until she sadly died. He said that he had been influenced in his life by ‘bad people’. A car accident he had in 2005 injured his back, caused sustained pain and led him down the path to further drug taking. He said he wanted to be a law-abiding citizen, and that now he was over 50 he was on a methadone programme and wanted to stay clean from drugs. Mr Vural agreed that he first came before the Courts as a minor, aged about 14. The national police check contains seven charges heard by the Melbourne Children’s Court but the Tribunal has redacted them from the offences in the Appendix and does not take them into account in this consideration. Mr Vural agreed that his first offending largely involved offences of dishonesty, but in 1986 he was fined by the Moonee Ponds Magistrates’ Court in relation to the offence of Use other drug of dependence. He said he was about 15 or 16 when he first started using drugs, having been introduced to them by school friends. Mr Vural said he started taking cannabis but this led to other drugs, including amphetamines and ‘ice’ (crystal methamphetamine). Mr Vural was asked about his first conviction for aiding and abetting trafficking in drugs, in 1987. He said he was involved with friends and said ‘yes’ to everything. He said he could not remember the details of the conviction for the Aiding and abetting the trafficking of amphetamine charge. Mr Vural was taken to the offences recorded from 1987 to 2002 and agreed that there were some fifteen convictions for drug offences and offences of violence. Ms Noronha asked him about the 1993 offences, when he was convicted of six charges of the offence of Assault with weapon and several other assault charges, including two charges of Assault police. Mr Vural said he believed that his mother passed away around this time and this contributed to his depression. He said he did, at the time, consult with a psychologist but he could not remember the details. He conceded that he has been a ‘violent person’. In terms of gaps between his convictions for drug trafficking, Mr Vural said that his habit has always been ‘on and off’. He would try to be clean for one or two years, and then return to using again. He said because his use was so heavy, when he was arrested he would be charged with trafficking because of the amount of drugs in his possession. In terms of the gap in offending between 1997 and 2006, Mr Vural said that was when he was engaged in his apprenticeship as a motor mechanic.

Decision

Reasons for decision

Section 501CA relevantly provides that:(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.…(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. Having found that Mr Vural fails the character test, the sole issue before the Tribunal is whether there is another reason why the original visa cancellation decision should be revoked. The Federal Court stated in Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337, at [38]:The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked…The Tribunal, standing in the shoes of the Minister, adopts this approach.Ministerial Direction No. 79 Section 499(1) of the Act provides that the Minister may give written directions about the exercise of functions or powers under the Act. The delegate who refused to revoke the mandatory cancellation of Mr Vural’s visa consulted Direction No. 65, made under section 499. On 20 December 2018 the Minister for Immigration, Citizenship and Multicultural Affairs (who is jointly authorised with the Minister for Home Affairs to administer the Act) made a fresh direction under section 499, namely Direction No. 79. Direction No. 79 (the Direction) commenced on 28 February 2019 and (at section 3) revokes Direction No. 65 from that date. Section 499(2A) of the Act requires that the Tribunal must comply with the Direction in considering this matter. The correct Direction for the Tribunal to consider is Direction No. 79. Paragraph 6.1 of the Direction states, in part:6.1Objectives(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.…(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker 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) or paragraph (6)(e)) and the non-citizen 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. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

Ratio Decidendi

Legal Principle Established

The Tribunal considered each of the primary considerations in the Direction and, as relevant, the other considerations.Primary considerationsProtection of the Australian community (paragraph 13.1) The Direction requires the Tribunal to have regard to the nature and seriousness of the conduct of the non-citizen to date, and the risk to the community should he commit further offences.The nature and seriousness of the conduct (paragraph 13.1.1) The Direction requires the decision-maker to take into account the nature and seriousness of the Applicant’s offending or other conduct to date. Mr Vural has, by any measure, a long history of regular offending. The offences have included crimes of violence, many drug-related offences and several offences of dishonesty. The Tribunal notes, in particular, that during his evidence Mr Vural first asserted that he was not trafficking and that he was only convicted of those offences because of the quantity of drugs found in his possession, which was of such a large amount that he was deemed by statute to be trafficking. However, he later contradicted that evidence to say that after one term of imprisonment “I resumed taking drugs, but was no longer trafficking.” While the Tribunal may accept that the commercial nature of Mr Vural’s drug trafficking may be linked to his own heavy drug use, the evidence accepted by the Court, and set out by Judge Gamble, was that he was involved in the commercial drug trade. The Tribunal may not look behind this finding by the Court. The Respondent drew the Tribunal’s attention to the comments of Senior Member Cameron in SCJD and Minister for Home Affairs [2018] AATA 4020 where he said [80-82]:The seriousness of drug trafficking is well known. It has been commented on by several of the trial judges before whom the Applicant has come.The corrupting effect of drug trafficking on the community has many facets. In many instances such as with overdosing on heroin it leads to death. The heroin toll in this country is almost as high as the road toll but rarely rates the same attention. It destroys families. Parent and children relationships frequently cease as a result of a person’s drug dependency. There is a massive toll on the nation’s mental health system caused by consumption of drugs. Frequently, this leads to the triggering of or early onset of a variety of mental health afflictions. These can include anxiety, psychosis, schizophrenia, bipolar disorders and paranoia. Tragically, drugs are all too frequently trafficked to young people including secondary school pupils. It leads to lives and potential careers being derailed, if not finished. It places demands on hospitals, health care systems, disability support networks and agencies, ambulance services, police, courts and other associated organisations and entities.In the course of ruining lives drug abuse leads to its victims often having to descend into crimes such as burglary, shoplifting and robbery (amongst others) to support their habit. Innocent people going about their lives can be the subject of robbery and attack by drug affected persons.