Wiki and Minister for Home Affairs (Migration) - [2019] AATA 197

Wiki and Minister for Home Affairs (Migration) [2019] AATA 197 (20 February 2019)
Division:GENERAL DIVISION
File Number(s): 2018/7177
Re:Shaun Tobias Tipene Wiki
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member M Griffin QC
Date:20 February 2019
Place:Sydney

The decision of the Respondent dated 28 November 2018 to refuse to revoke the Applicant’s visa cancellation decision made under s 501(3A) of the Migration Act 1958 (Cth), is affirmed.
...........................[SGD].........................................
Senior Member M Griffin QC
CATCHWORDS
MIGRATION – Class TY Subclass 444 Special Category (Temporary) visa – mandatory cancellation – failure to pass character test – Ministerial Direction No 65 – frequency of reoffending – traffic offences – domestic violence – disregard for Australian law – unacceptable risk of re-offending – strength, nature and duration of ties to Australia – extent of impediment if removed – best interest of minor children – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 501, 501CA
CASES
Robertson and Minister for Home Affairs (Migration) [2019] AATA 164 (18 February 2019)
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Minister for Immigration and Border Protection, Direction No. 65 – Visa Refusal and Cancellation under section 501 and Revocation of a Mandatory Cancellation of a Visa under section 501CA, cl 6.3, 6.4, Part C
REASONS FOR DECISION
Senior Member M Griffin QC
20 February 2019

The Applicant seeks review of a decision of a delegate of the Respondent (the “Minister”) dated 28 November 2018 not to revoke, pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the “Act”), a decision under s 501(3A) of the Act to cancel the Applicant’s Class TY (Subclass 444) Special Category (Temporary) visa (the “visa”).
The application is made pursuant to s 500(1)(ba) of the Act, which allows applications to be made to the Administrative Appeals Tribunal (the “Tribunal”) for review of decisions of a delegate of the Minister under s 501CA of the Act.
BACKGROUND
The Applicant, a citizen of New Zealand, first arrived in Australia on 27 May 2007. He is now 31 years old and was the holder of a Class TY (Subclass 444) Special Category (Temporary) visa.
On 14 March 2018, the Department issued the Applicant a notice that his visa had been cancelled under s 501(3A) of the Act.
On 9 April 2018, the Applicant made representations seeking revocation of the cancellation decision.
On 28 November 2018, the delegate decided under s 501CA(4) of the Act not to revoke the mandatory cancellation.
Applicant’s criminal history
The Respondent has reproduced a table (as corrected by the Tribunal), summarising the Applicant’s National Police Certificate dated 1 December 2017, revealing numerous offences, which can be summarised as follows:

Court date Offence Sentence

27 Oct 2015

(Blacktown Local Court)
Drive motor vehicle while licence suspended – 1^st off
Fine: $800

Disqualification driver: 12 months

1 Dec 2016

(Penrith Local Court)
Drive motor vehicle during disqualification period – 2^nd off

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 197
Decision Date: 20 February 2019

CaseChat Overview and Summary

This matter concerned an application to the Administrative Appeals Tribunal for the revocation of a mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa. The applicant, Wiki, had failed to pass the character test due to a history of traffic offences and domestic violence, which the Tribunal found demonstrated a disregard for Australian law and an unacceptable risk of re-offending.

The Tribunal was required to consider various factors outlined in Ministerial Direction No 65 when determining whether to revoke the visa cancellation. These included the existence and weight of any non-refoulement obligations, the strength, nature, and duration of the applicant's ties to Australia, the impact of removal on Australian business interests, the impact on victims of the applicant's criminal behaviour, and the extent of impediments the applicant might face if removed from Australia. The Tribunal also had to consider the best interests of the applicant's minor children.

In its reasoning, the Tribunal acknowledged that there would be significant impediments to the applicant's re-establishment in New Zealand, particularly concerning contact with his children. However, it found that the applicant should be able to find employment and would not face substantial cultural difficulties. Crucially, the Tribunal was "absolutely satisfied" that the risk of the applicant re-offending constituted an unacceptable risk. This risk, combined with the expectations of the Australian community, was found to strongly outweigh all other considerations.

Consequently, the Tribunal affirmed the decision to cancel the applicant's visa and declined to revoke the cancellation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal accepts that there will be significant impediments if the Applicant is removed. His family is largely in Australia, the most important being his partner and children. The Applicant’s age and health would not be a particular impediment for his removal although in evidence the Applicant referred to physical difficulties working as a scaffolder. The Tribunal finds that apart from the obvious difficulties surrounding relocation itself, nonetheless, the Applicant should be able to find employment in New Zealand. There will be no cultural difficulties should the Applicant be returned. There will of course be difficulties in the sense of arranging suitable contact with his children, were the Applicant removed. It is the Tribunal’s view that the Applicant would not face great difficulties in re-establishing himself in New Zealand.CONCLUSION The best interests of the minor children are a powerful reason in favour of revoking the decision. The other factors which reinforce that view have been referred to above and include the strength, nature and duration of ties to Australia, the attitude of his partner as a victim, and impediments referred to should he be removed. The Tribunal, however, is absolutely satisfied that the risk of the Applicant re-offending is an unacceptable risk and that, together with the expectations of the Australian community, so strongly outweigh all other considerations, that the decision should not be revoked. The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

The considerations at cl 14.1 of Direction 65 include (but are not limited to):(a)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has Convention and Protocol non-refoulement obligations (cl 14.1(1));(b)The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen's visa (cl 14.1(2));(c)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled) (cl 14.1(3));(d)Where a non-citizen makes claims which may give rise to international nonrefoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked (cl 14.1(4));(e)Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated (cl 14.1(6)).Strength, nature and duration of ties The considerations at cl 14.2 include:(a)how long the non-citizen has resided in Australia, the period of offending, positive contributions to the Australian community (cl 14.2(1)(a));(b)the strength, duration and nature of any family or social links with Australian citizens, including the effect of non-revocation on the non-citizen’s immediate family (cl 14.2(1)(b)).Impact on Australian business interests Direction 65 notes an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia (cl 14.3(1)).Impact on victims Clause 14.4 of Direction 65 provides:'Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for visa cancellation has been afforded procedural fairness.'Extent of impediments if removed The extent of impediments if removed requires consideration of the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account: age and health; whether there are substantial cultural barriers; and the availability of any social, medical and/or economic support.DISCUSSIONCharacter test