Wilson (Migration)

[2020] AATA 592

Wilson (Migration) [2020] AATA 592 (25 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ranginui Wirepoi Wilson

CASE NUMBER:  1724299

DIBP REFERENCE(S):  CLF2017/54003

MEMBER:Kate Millar

DATE:25 February 2020

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the applicant a Special Category (Temporary) (Class TY) Subclass 444 visa

Statement made on 25 February 2020 at 11:29am

CATCHWORDS
MIGRATION – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – behaviour concern non-citizen – sentenced to imprisonment for more than one year in home country before migrating to Australia – previous entries to Australia – family and work in Australia – employment reference, psychological assessment and letters of support – request for referral for consideration by minister not granted – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(b), 32(2)(a)(ii), 65, 501(2)

Migration Regulations 1994 (Cth), Schedule 2, Part 444

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Mr Wilson is a citizen of New Zealand who migrated to Australia in 2008 with his wife and three children.  Before coming to Australia, Mr Wilson had been convicted of a number of offences in New Zealand in the period 1996 to 2004.  In 2015, the Minister considered cancelling his visa, but ultimately did not cancel his visa, instead issuing a warning.

2. Mr Wilson travelled to New Zealand in May 2017 to visit his grandmother.  On his return to Australia, he was refused a Special Category (Temporary) (Class TY) Subclass 444 visa by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs. This was because the delegate found that as a result of his criminal convictions in New Zealand, Mr Wilson did not meet the requirements for the visa.

3. Mr Wilson applied for a review of this decision.  A hearing was scheduled for this matter, however prior to the hearing Mr Wilson properly, and in accordance with the President’s Directions, requested that this matter be determined without a hearing, but that the Tribunal consider referring the matter to the Minister. 

4. The decision under review is a decision made by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs on 21 September 2017 to refuse to grant the visa applicant a visa under s.65 of the Migration Act 1958 (the Act).

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.  The Tribunal has decided not to itself refer this matter to the Minister, however Mr Wilson can seek the intervention of the Minster should he wish to do so. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. To be granted a Special Category visa, Mr Wilson must meet the criteria in s.32 of the Act and Part 444 of Schedule 2 of the Migration Regulations 1994.

7. Section 32(2)(a)(ii) requires that for the grant of the visa, the person must not be a ”behaviour concern non-citizen”.  As it applies in Mr Wilson’s circumstances, this is defined in section 5 of the Act as a non-citizen who:

   …

   (b)has been convicted of 2 or more crimes and sentenced to imprisonment, for periods that add up to at least one year if: 

   (i)        any period concurrent with part of a longer period is disregarded; and 

   (ii)  any periods not disregarded that are concurrent with each other are treated as one period; 

   whether or not: 

   (iii)the crimes were of the same kind; or 

   (iv)  the crimes were committed at the same time; or 

   (v)  the convictions were at the same time; or 

   (vi)  the sentencings were at the same time; or 

   (vii)the periods were consecutive; or 

   ..

   where sentenced to imprisonment includes ordered to be confined in a corrective institution.

8. Mr Wilson provided a copy of his New Zealand police record.  This include offence so of aggravated injury, kidnapping and unlawfully taking a motor vehicle, for which he was sentenced to imprisonment for 15 months, which was suspended for 18 months following the sentence.

9. As Mr Wilson was sentenced to imprisonment for a period that exceeds a year, he is a behaviour concern non-citizen as defined and does not meet the requirements in s.32(2)(a)(ii) for the grant of the visa.

10. This means the decision must be affirmed.

    REFERRAL TO THE MINISTER

11. Mr Wilson has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 of the Act.  This gives the Minister the discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

12. In summary, Mr Wilson submits:

    ·     He migrated to Australian in 2008, and has an unblemished record since his arrival.

    ·     He has been assessed under the character provisions in s.501(2) of the Act and the view was taken that his visa should not be cancelled.

    ·     Had he not travelled outside Australia in 2017, he would have been entitled to remain in Australia indefinitely as the holder of a Subclass 44 visa. 

    ·     He has three children in Australia aged 21, 16 and 11 years. 

    ·     His wife and three children have settled in Australia and intend to remain in Australia.  If he is not granted a visa, this will result in the children being separated from a parent.  This submission is not consistent with Mr Wilson’s statutory declaration which states his wife and two younger children will return to New Zealand with him.  His eldest child will remain in Australia. 

    ·     He has had continuous gainful employment and has actively participated in the community.

    ·     He is not eligible for another types of visa, in particular a spouse visa as his wife did not meet the definition of an eligible New Zealand citizen at the relevant point in time.

13. Mr Wilson included a reference from his employer stating his attendance is second to none, his engagement with others is always courteous, and his effort for customers is considered best practice.  He is regularly called on to train new employees. 

14. Mr Wilson included a copy of a Department of Immigration and Border Protection Inspectors Reports from six previous entries to Australia in the period 2008 – 2014.  In his passenger entry card on these occasions he disclosed convictions for assault.  It does not include his convictions for aggravated injury, kidnapping and unlawfully taking a motor vehicle.  In has statutory declaration dated 25 September 2015, Mr Wilson states he did not know exactly the offences for which he had been convicted, and thought he had been convicted of aggravated robbery.

15. Mr Wilson has provided an assessment by a psychologist that the risk of his reoffending is very remote, and various letters of support from community members.

16. On the basis of his employment history and his last police clearance which is dated 1 November 2018, Mr Wilson appears to have successfully settled in Australia.  He has previously been considered for cancellation under s.501(2) of the Act when the full extent of his offending became known to the Department, but says he was issued with a warning.

17. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3), however had decided not to refer the matter to the Minster.  Mr Wilson may himself seek the intervention of the Minister.

    DECISION

18. The Tribunal affirms the decision not to grant the applicant a Special Category (Temporary) (Class TY) Subclass 444 visa.

    Kate Millar
    Senior Member