Ward and Minister for Home Affairs (Migration) - [2019] AATA 581

Ward and Minister for Home Affairs (Migration) [2019] AATA 581 (29 March 2019)
Division:GENERAL DIVISION
File Number(s): 2019/0232
Re:Christopher Ward
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member B J Illingworth
Date:29 March 2019
Place:Sydney

The decision under review is affirmed.
..............................[sgd].................................
Senior Member B J Illingworth
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018
REASONS FOR DECISION
Senior Member B J Illingworth
29 March 2019
INTRODUCTION

This is an application for review filed by Mr Christopher Ward (“the Applicant”) on 14 January 2019. The decision the Applicant seeks to have reviewed is the decision of a delegate of the Minister for Home Affairs (“the Respondent”) dated 9 January 2019 not to revoke the mandatory cancellation of his visa.
The Applicant appeared unrepresented at the hearing. The Respondent was represented by Mr Tal Aviram of Clayton Utz solicitors.
BACKGROUND
The Applicant is a 53 year old citizen of the United Kingdom. He arrived in Australia on 20 October 1987, aged 22 years, with his wife and son. He was granted a Class BF Transitional (permanent) visa on 1 September 1994. This is the visa that is the subject of the application.
The Applicant has an extensive criminal history, having been convicted of over 20 offences between 1996 and 2016. There were two significant periods, namely between March 2003 and July 2011, and December 2013 and August 2016, where no convictions were recorded.
On 5 August 2016, the Applicant was convicted and sentenced in the Orange District Court for the following offences (“the subject offending”):
(a)assault with intent to rob armed with an offensive weapon (namely a knife); and
(b)reckless wounding.
For the subject offending, the Applicant was sentenced to five years and three months imprisonment, with a non-parole period of three years and three months. I will detail the facts of the subject offending later in this decision.
On 6 December 2017, the Applicant’s visa was mandatorily cancelled (“the Original Decision”) by a Ministerial delegate under s 501(3A) of the Migration Act 1986 (Cth) (“the Act”) on the grounds that he did not pass the character test because he had been sentenced to a term of imprisonment of at least 12 months and was serving a term of imprisonment on a full-time basis at Bathurst Correctional Centre.
On 18 December 2017, the Applicant made representations seeking revocation of the mandatory visa cancellation in the period and manner specified.
On 9 January 2019, a Ministerial delegate determined that the Minister was not satisfied that the Applicant passed the character test or…

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 581
Decision Date: 29 March 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of a 53-year-old United Kingdom citizen whose visa was mandatorily cancelled due to a substantial criminal record. The applicant arrived in Australia in 1987 and was granted a permanent visa in 1994. Between 1996 and 2016, he accumulated over 20 convictions, including serious offences of assault with intent to rob armed with an offensive weapon and reckless wounding, for which he received a sentence of five years and three months imprisonment. A delegate of the Minister for Home Affairs initially cancelled the applicant's visa under section 501(3A) of the Migration Act 1986 (Cth) because he had been sentenced to at least 12 months imprisonment. The delegate subsequently refused to revoke this cancellation.

The Tribunal was required to determine whether to exercise the discretion to revoke the mandatory visa cancellation. This involved assessing the primary considerations outlined in the relevant Direction, specifically the protection of the Australian community, and considering any other relevant factors. The Tribunal had to evaluate the nature and seriousness of the applicant's conduct to date and the risk to the Australian community should he commit further offences.

In its reasoning, the Tribunal applied the principles set out in the Direction concerning the protection of the Australian community, emphasising that remaining in Australia is a privilege for non-citizens who are law-abiding and do not cause harm. The Tribunal considered the applicant's extensive criminal history, noting the frequency and cumulative effect of his offending, as well as the seriousness of the offences, particularly those involving violence. The Tribunal also had regard to the applicant's personal circumstances, including his family in the UK and his estranged children in Australia, and his stated regret and attempts at rehabilitation. However, the Tribunal found that the seriousness of the offending, particularly the violent nature of the subject offending, and the risk posed to the community outweighed the mitigating factors.

Consequently, the Tribunal decided not to exercise the discretion to revoke the cancellation of the applicant's visa. The decision under review, which affirmed the mandatory cancellation, was therefore affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Applicant appeared unrepresented at the hearing. The Respondent was represented by Mr Tal Aviram of Clayton Utz solicitors. BACKGROUND The Applicant is a 53 year old citizen of the United Kingdom. He arrived in Australia on 20 October 1987, aged 22 years, with his wife and son. He was granted a Class BF Transitional (permanent) visa on 1 September 1994. This is the visa that is the subject of the application. The Applicant has an extensive criminal history, having been convicted of over 20 offences between 1996 and 2016. There were two significant periods, namely between March 2003 and July 2011, and December 2013 and August 2016, where no convictions were recorded. On 5 August 2016, the Applicant was convicted and sentenced in the Orange District Court for the following offences (“the subject offending”):(a)assault with intent to rob armed with an offensive weapon (namely a knife); and (b)reckless wounding. For the subject offending, the Applicant was sentenced to five years and three months imprisonment, with a non-parole period of three years and three months. I will detail the facts of the subject offending later in this decision. On 6 December 2017, the Applicant’s visa was mandatorily cancelled (“the Original Decision”) by a Ministerial delegate under s 501(3A) of the Migration Act 1986 (Cth) (“the Act”) on the grounds that he did not pass the character test because he had been sentenced to a term of imprisonment of at least 12 months and was serving a term of imprisonment on a full-time basis at Bathurst Correctional Centre. On 18 December 2017, the Applicant made representations seeking revocation of the mandatory visa cancellation in the period and manner specified. On 9 January 2019, a Ministerial delegate determined that the Minister was not satisfied that the Applicant passed the character test or that there was another reason why the Original Decision should be revoked. Accordingly, the delegate decided not to revoke the decision to cancel the Applicant’s visa. On 14 January 2019, the Applicant lodged with the Tribunal an application for review of the delegate’s decision. THE HEARING The Applicant failed to file a Statement of Facts, Issues and Contentions, Outline of Argument, or Submission. He did not provide any witness statements, employment records, records of rehabilitation courses completed, or other documents in support of his application. The Tribunal was in receipt of an undated one and a half page handwritten statement addressed to the National Character Consideration Centre, Department of Home Affairs receipt stamped 22 February 2018,[1] and a Department of Immigration and Border Protection Personal Circumstances Form dated 18 December 2017.[2] [1] Exhibit A, G Documents, pages 94 - 96.[2] Ibid, pages 77 - 93. The Applicant said in evidence he provided records relating to completion of the EQUIP drug rehabilitation program undertaken when in custody. He referred to a large bundle of documents sent to the Tribunal recently. Upon checking the Tribunal record after the hearing, the documents provided by the Applicant were those received with the Applicant’s original application for review on 14 January 2019.

Evidence

Evidence Before The Court

Prior to the hearing, the Applicant was advised of his right to file such further or other material upon which he intended to rely. He said at the hearing he did not have any witnesses or other evidence. Hence, nothing further was provided to the Tribunal. THE APPLICANT’S EVIDENCE The Applicant was born and educated in England. He came to Australia aged 22 years with his wife and son in hope of a better life and employment. In England, he obtained his qualification as a sheet metal worker but, following the miners’ strike, there was a recession. There was no work and hence the Applicant made the decision to move to Australia. The Applicant’s father and mother still live in England. They are aged 81 and 79 years respectively, and both receive a pension. His parents have sold their home because his mother can no longer use the stairs following a heart attack. They now live in a one bedroom Council bungalow. In November 2018, the Applicant’s mother suffered a stroke. She is now immobilised, uses a wheelchair, and cannot talk. He hopes for some improvement in her condition. His father is her carer. The Applicant describes his father as a violent man who was a standover man for those involved in the drug trade, however he has never been imprisoned. It is in this context that the Applicant’s father was violent and, while no violence was directed towards the Applicant, this was also one of the reasons why he came to Australia. The Applicant speaks with his parents regularly. Most recently they have told him that he cannot live with them should he return to England. The Applicant had two brothers. His youngest brother was murdered in 1999. The Applicant returned to England for the funeral. This was the only time the Applicant has returned to England. That was also the last time he saw and spoke with his surviving brother who now lives in Glasgow, Scotland with his wife and two children. The Applicant does not know his brother’s address, nor has he met his brother’s children. The Applicant himself has five children; three boys aged approximately 33, 21, and 19 years, and two girls aged approximately 23 and 12 years. He has no grandchildren. His youngest daughter (“S”) has just started high school. The Applicant said she was aged about four or five years when he and his wife separated, and that the separation occurred one to two years before the Applicant was taken into custody for the subject offending. Given S is now aged 12 years, the Applicant’s estimate of dates is incorrect. At the time the Applicant committed the subject offending, he was associating with “the wrong crowd”. He had been in a relationship with his new partner for up to two years. He regrets that relationship and says that he and his wife had discussed reconciling before he committed the subject offending. The Applicant said he had asked his wife if he could “come back”. He described his wife as being “at sixes and sevens” about reconciliation. The Applicant said that he used drugs when in England and he continued to take drugs in Australia, but never did so at home or in front of his family. At the time of his first offence in 1996, he was taking drugs and had been for a long time. He was then taking methylamphetamine (“speed”). His drug consumption then snowballed and, from the age of 30, he was taking heroin and “speed” daily.

Decision

Reasons for decision

Consequently, I do not exercise the discretion to revoke the cancellation of the Applicant’s visa. DECISION For the reasons outlined above, the decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

The Tribunal will now address these considerations. Primary Consideration A: Protection of the Australian community Paragraph 13.1 of the Direction sets out the first of the primary considerations the Tribunal should have regard to, and relevantly provides:(1)When considering protection of the Australian community, decision-makers should have regard to the principle 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. 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. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved. (2)Decision-makers should also give consideration to:(a)The nature and the seriousness of the non-citizen’s conduct to date; and(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. The Tribunal will address each of the considerations 13.1(2)(a) and 13.1(2)(b) in turn with reference to 13.1(1). (1) The nature and seriousness of the Applicant’s conduct to date Paragraph 13.1.1 of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. It relevantly states: (1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:(a)The principle that… violent and/or sexual crimes are viewed seriously;(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed; (c)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;(d)Subject to subparagraph (b) above, the sentence imposed by the court for a crime or crimes;(e)The frequency of the non-citizen’s offending and whether there is a trend of increasing seriousness;(f)The cumulative effect of repeated offending;(g)…(h)Whether the non-citizen has re-offended since being formally warned, or since being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status …(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen is in immigration detention … is serious … In addressing this consideration, it is first necessary to have regard to the Applicant’s criminal history. The Applicant’s earliest convictions date back to August 1996 in the Campbelltown Local Court where he was dealt with for the offences of not stop after accident, use motor vehicle without consent, drive disqualified, and drive with high prescribed concentration of alcohol, for which he received fines and a three year licence disqualification.