VXXG and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Case [2023] AATA 3362

VXXG and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3362 (5 September 2023)

Division:GENERAL DIVISION

File Number:          2023/4310

Re:VXXG

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member D. Cosgrave

Date of Decision:                   5 September 2023

Date of Written Reasons:      19 October 2023

Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 9 June 2023 to not revoke the cancellation of the Applicant’s visa.

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

Member D. Cosgrave

Catchwords

MIGRATION – Mandatory visa cancellation – Class WC Subclass 030 Bridging C visa – failure to pass character test – criminal record – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 99 applied – decision under review affirmed.

Legislation

Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)

Migration Regulations 1994 (Cth)

Cases

Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Bushell v Repatriation Commission (1992) 175 CLR 408
Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588
Demir V Minister For Immigration, Citizenship And Multicultural Affairs [2023] FCA 870
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs [2022] HCA 26
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970

Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531

Secondary Materials

Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)

REASONS FOR DECISION

Member D. Cosgrave

19 October 2023

  1. VXXG seeks review of the Respondent’s delegate’s decision on 9 June 2023…

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Details
AGLC
VXXG and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3362
Case
[2023] AATA 3362
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of VXXG and the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerned the mandatory cancellation of VXXG's Bridging C visa due to his failure to pass the character test, stemming from his criminal record. VXXG sought revocation of this cancellation.

The Tribunal was required to determine whether there was "another reason" why the mandatory cancellation of VXXG's visa should be revoked, pursuant to section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth). This involved assessing VXXG's criminal history, including convictions for sexual assault, assault occasioning actual bodily harm, and property damage, against the principles outlined in Ministerial Direction No. 99 and relevant case law, such as *Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs*.

The Tribunal applied a comprehensive, holistic, and integrated approach to the primary and other considerations outlined in Ministerial Direction No. 99, as well as additional factors. It found that VXXG did not pass the character test due to his substantial criminal record, specifically being sentenced to imprisonment for more than 12 months. While VXXG made representations seeking revocation, the Tribunal concluded that, on balance, these did not provide a sufficient reason to revoke the cancellation decision. The Tribunal affirmed the delegate's decision not to revoke the cancellation of VXXG's visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Unless the context indicates otherwise, passages quoted in bold font have been emphasised by the Tribunal.FACTS VXXG is a 39-year-old citizen of India. He arrived in Australian on 26 November 2008 on a student visa when he was 24 years old and has not departed since[4]. He overstayed after his student visa expired in July 2011[5]. [4] G1, p 67.[5] Ibid, p 127. VXXG’s first offending in Australia related to traffic offences (which included driving unlicensed and driving a vehicle not complying with standards). He was fined in relation to those offences in June 2016.[6][6] G1, p 33. In May 2018, VXXG committed two counts of sexual assault. In August 2020, VXXG was sentenced to twelve months imprisonment (suspended for 2 years) in relation to those offences.[7] The facts relating to those offences are as follows:[8](a)VXXG sat next to the victim (who was a vulnerable person by virtue of an impairment[9]) at a bus stop. He introduced himself and talked to her before going away to smoke a cigarette and retuning.(b)VXXG leaned in, used his right hand to hold her shoulder or face and kissed her. He tried to put his hand insider her dress, rubbed her legs and touched her bottom. This continued for approximately two minutes.(c)VXXG then asked her to go to the toilet and if the victim wanted to meet him behind the toilet. She said she did not.(d)VXXG gave the victim a cigarette and when his bus arrived kissed her again and got on.[7] Ibid, p 33.[8] Ibid, p 44.[9] Ibid, p 45. In October 2018, VXXG applied for a protection visa and was granted the visa in conjunction with that application.[10][10] Ibid, p 67. Between December 2018 and January and May 2019, VXXG breached bail in relation to the sexual assault offences by:(a)failing to report; and(b)failing to apply to change his address.[11] [11] R2, pp 53-57 In February and June 2019, he was fined in relation to those breaches.[12][12] G1, p 33. On 5 November 2020, a delegate of the Respondent refused VXXG’s protection visa application.[13] VXXG lodged an application for review of that decision in the Administrative Appeals Tribunal (MRD).[13] Ibid, p 118. On 4 October 2021, VXXG was notified of an intention to cancel his Bridging visa C under s 501(2) of the Migration Act 1958 (Cth) (“the Act”).[14][14] Ibid, p 74. In March 2022, VXXG committed the offences of passenger interfere with driver's control of vehicle, destroy or damage property <=$2000 (DV)-T2 and assault occasioning actual bodily harm (DV)-T2. In August 2022, he was sentenced in relation to those offences.[15] [15] Ibid, p 33; R2, pp 83-85. The facts of the March 2022 offending are as follow:(a)VXXG was in a relationship with the victim (Ms M) which had commenced in December 2021.[16](b)In March 2022, VXXG and Ms M had an argument at her residence. Ms M asked VXXG to leave her house. VXXG stated he would leave in the morning, became agitated, ripped his clothes off, cut them with scissors and threw the victim’s food in the bin.[17](c)The following morning the victim again asked VXXG to leave. He stated he could not find transport home and started to throw things around the room and yell. Ms M agreed to take VXXG to Grafton with her.[18](d)Whilst travelling on the Pacific Highway Ms M said to VXXG “I don’t want to see your face”, he replied “I don’t want to see yours either” and hit her in the face. She continued driving to Grafton. She got to work and VXXG left the location but called her many times throughout the day.[19](e)Ms M agreed to meet VXXG at her car and, upon meeting him, observed that he appeared intoxicated. Approximately five minutes into the trip VXXG asked the victim “do you need more punches”, she replied “please be quiet, I want to concentrate on the road”. VXXG then punched Ms M in the face about ten times. Ms M continued to drive during the attack and VXXG threatened to punch her again if she stopped.[20](f)VXXG grabbed the steering wheel while attempting to turn the vehicle into oncoming traffic on two occasions.[21](g)VXXG grabbed Ms M’s sunglasses that had fallen off her face and smashed them.[22](h)Ms M eventually was allowed to stop the car, saying that she needed to vomit. When she exited the car she began screaming for help and VXXG walked to her side of the vehicle and punched her before saying “I will come there tonight and kill you”.[23](i)Ms M returned to her car, drove to a police station and reported the matter.[24][16] G1, p 37.[17] G1, p 37.[18] Ibid.[19] G1, p 38.[20] Ibid.[21] Ibid.[22] Ibid.[23] Ibid.[24] Ibid.

Evidence

Evidence Before The Court

The witnesses who gave evidence during the hearing were: (a)VXXG; and(b)Ms M.VXXG’s evidence Relevant aspects of VXXG’s evidence are summarised below:Examination-in-chief by the Tribunal VXXG affirmed his statements.[37][37] Transcript, p 6, lines 38-41. VXXG gave the following answers in relation to the issues noted below.Offending‘MEMBER: And they go through your conviction for sexual assault and then your subsequent further conviction of assault occasioning bodily harm and destroying or damaging property and passenger interfering with a driver’s control of a vehicle. Do you agree that you committed these offences?VXXG: Yes, I agree.’[38][38] Ibid, p 7, lines 10-14Reasons for Offending and Risk of Reoffending‘MEMBER: Thank you. The next thing that is assessed is the risk you pose to the Australian community. And you’ve told the department, as did you tell the court and the corrective services that you were under a lot of pressure. What do you mean by a lot of pressure at the time that you committed the assault on your partner?VXXG: Pressure because that time my mum is suffering from COVID and the relationship is a little bit not good. That’s why I’m suffering from pressure, all you say, is, like, problem, something like that. Like drinking or fall or something. ‘[39][39] Ibid, p 7, lines 16-23Stressors‘MEMBER: Thank you, VXXG. And at paragraph 41, you told in your revocation request to the department that you abused alcohol to escape from reality. What can you tell us about how you use alcohol?VXXG: When I came here, third time I have not enough work. And 2010, my father helped me before every time for to pay my fees and after that my father passed away. No one helped me to pay a visit, to pay the money, college fees. And after that I just easily catch up with alcohol. Because I don’t want to - I didn’t pay for college fees. My father passed away. I just - going further from reality. Just make my mind happy.MEMBER: I understand, VXXG, and you can take your time. I can understand that this is distressing. Now, I’m sure Mr Burgess will raise this with you when he gets the opportunity to ask you questions, but you made some of the same claims when you sought a protection visa. Had there been a change? Have you learnt to handle stress? Have there been any changes?VXXG: I’m living last one year inside. Four months correction centre. Nearly more than eight months in detention centre altogether. Nearly one year, more than one year. But I know, I everyday forgive myself too. I did blunder, mistakes. I do some medication too. What I did, just I have to forget about that one and I pay every day for it, for victims. ‘[40]Risk to the Community‘MEMBER: I understand, VXXG. Now, the delegate concludes that you pose a risk to the community. I’ll ask you one question now about that, but when it comes to your final statements to me - which will probably be tomorrow - I want you to think about how you would describe what you see as your risk to the community going forward. Now, what the respondent’s delegate found was, that you’ve previously had support available to you but you have continued to misuse alcohol and then gone on to commit domestic violence. So in a totality, there is a fair reason to think that you pose a risk to the community. What would you say to that?VXXG: I’ve lived the last 15 years in Australia. I work for community. I work in hospitality. My great - I work with - my hard working life here. I did mistake. I admit I’m very remorseful. But I don’t think so, but I’m - like, harm for community. I didn’t think so. I’m for alcohol-committing. I know I - this is painful, this is book - but - this is not my corrector. I’m not harm for community. I never did before anything in 15 years. I live - like, I lived 15 years in Australia most of the time Queensland, 11 years. One and a half years in Melbourne. And nearly two years in New South Wales. I’m not harm for community. I’m not like that. First time. I’m a very kind and humble person. I did mistakes. I - I feel sorry every time. But I don’t think so, I’m harm for community. I’m nearly living - nearly living one year in supervision correction centre, in detention centre. You check my record. How - how is my behaviour, how is everything. I’m not harm for community.’[41][40] Transcript, p 8, lines 22-41[41] Ibid, lines 43-47; p 9, lines 1-17.Cross-examination

Decision

Reasons for decision

A comprehensive, holistic and integrated view of the primary considerations, the other considerations in the Direction, together with the additional consideration favours on balance affirming the delegate’s decision to not revoke the cancellation of VXXG’s visa.DECISION Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 9 June 2023 to not revoke the cancellation of the Applicant’s visa.

Ratio Decidendi

Legal Principle Established

Section 501CA(4) of the Act confers a power upon the Minister to revoke the original decision if: (a)the person whose visa has been cancelled makes representations in accordance with the invitation; and (b)the Minister is satisfied that the person passes the character test, or there is another reason why the original decision should be revoked.MATTERS FOR CONSIDERATIONThe character test VXXG’s visa was cancelled on the basis that he had failed the character test as he had a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months and was 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 Territory (ss 501(6)(a) and 501(7)(c) of the Act). VXXG does not pass the character test due to the operation of ss 501(6)(a) and 501(7)(c) of the Act. Consequently, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation decision. The remaining issue for the Tribunal to consider under s 501CA(4)(b)(ii) of the Act is whether the Tribunal is satisfied of there being another reason to revoke the cancellation decision.[29] The Tribunal “stands in the shoes of the original decision-maker” but with regard for the situation as at the time of its consideration.[30] [29] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).[30] Nathanson v Minister for Home Affairs [2022] HCA 26 (“Nathanson”); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 299 [40], 315 [100], 324-325 [134]; Bushell v Repatriation Commission (1992) 175 CLR 408, 425 (Brennan J); Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78, [10]-[11] (Logan, Perry, and Beach JJ).Is there another reason why VXXG’s visa cancellation should be revoked? The Full Court of the Federal Court in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172, approving the reasoning in Viane,[31] identified the following principles as relevant to the statutory task conferred by s 501CA(4) at [27]:1If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.2The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.3The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.4However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.5Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.6If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.…”[31] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).