WKBF and Minister for Immigration and Multicultural Affairs (Migration)

Case [2025] ARTA 232

WKBF and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 232 (21 January 2025)

Applicant/s:  WKBF

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:                2024/9000

Tribunal:Deputy President K Millar

Place:Adelaide

Date:21/01/2025

Decision:The Tribunal affirms the decision under review.

………[SGND]………….

Deputy President K. Millar

Catchwords

MIGRATION – visas – cancellation of visa on character grounds where substantial criminal record – request for revocation of cancellation decision under s 501(1) of the Migration Act 1958 (Cth) (“the Act”) – consideration of Ministerial Direction No. 110 – where applicant has protection finding under s 198 of the Act – consideration of protection of Australian community – decision under review affirmed.

Legislation

Migration Act 1958 (Cth)

Guardianship and Administration Act 2019 (VIC)

Mental Health and Wellbeing Act 2022 (VIC)

Migration Regulations 1994 (Cth)

Cases

BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181

CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138

Hambledon v Minister for Immigration and Border Protection [2018] FCA 7

Hands v Minister for Immigration and Border Protection [2018] FCAFC 225

Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591

NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37

Pearson v Commonwealth of Australia [2024] HCA 46

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

WKBF and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 4013

WKBF v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 465

YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 40

Secondary Materials

Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024) cl 5.2 (‘the Direction’).

Statement of Reasons

  1. This is a review of the decision not to grant the Applicant a Protection (Subclass 866) visa (‘protection visa’) under s 501(1) of the Migration Act 1958 (‘the Act’).

  2. The Applicant applied for a protection after his Preferential Family (Subclass 104) visa was cancelled. His application for a protection visa was initially refused on the basis that the Applicant, having been convicted of a particularly serious crime, was a danger to the community.

  3. This decision was set aside, and his visa application was then refused by a delegate of the Minister on the basis that he does not pass the character test.

    BACKGROUND

  4. The Applicant is a 44-year-old citizen of Ethiopia. He came to Australia in December 1997 when he was 17 years old to join his half-brother. He has been before the Tribunal on four previous occasions in relation to his character and his visa status. The Applicant has a severe mental illness and was unable to give evidence.

  5. As he was unable to give evidence and did not appear before the Tribunal to explain his background, it is important to keep his circumstances firmly in mind in considering this matter and the consequences of the decision under…

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AGLC
WKBF and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 232
Case
[2025] ARTA 232
Decision Date

CaseChat Overview and Summary

The case involves an Ethiopian citizen who has been in Australia since 1997, facing multiple visa challenges due to his criminal record and mental health issues. The Minister for Immigration and Multicultural Affairs sought to cancel his visa on character grounds, a decision which was reviewed by the court. The court had to determine whether the decision to cancel the visa and refuse its revocation should be upheld, considering various factors outlined in Ministerial Direction No. 110.

The primary legal issues were whether the primary considerations set out in the Direction, particularly the protection of the Australian community, outweighed other factors such as the applicant’s ties to Australia and his need for mental health support. The court had to balance the risk of the applicant reoffending against his potential access to the National Disability Insurance Scheme (NDIS) and a higher rate of government payments, which could mitigate that risk.

The court found that while the applicant's access to NDIS and higher income support might reduce his risk of reoffending, it did not significantly protect the Australian community from further criminal acts. The applicant remained a moderate risk of offending without recent rehabilitation efforts. The court also noted that there was no evidence of family violence committed by the applicant, and he lacked strong ties to Australia given his limited contact with family. Therefore, the primary consideration of protecting the Australian community weighed substantially in favour of upholding the visa cancellation.

The court affirmed the decision to cancel the visa and refused the application to revoke the cancellation. This decision recognises the need to protect the Australian community from potential harm while acknowledging the applicant's circumstances and the impact of his mental health on his criminal behaviour.

Orders

Orders of the court

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Background

Background to the litigation

This decision was set aside, and his visa application was then refused by a delegate of the Minister on the basis that he does not pass the character test. BACKGROUND The Applicant is a 44-year-old citizen of Ethiopia. He came to Australia in December 1997 when he was 17 years old to join his half-brother. He has been before the Tribunal on four previous occasions in relation to his character and his visa status. The Applicant has a severe mental illness and was unable to give evidence. As he was unable to give evidence and did not appear before the Tribunal to explain his background, it is important to keep his circumstances firmly in mind in considering this matter and the consequences of the decision under consideration.[1] [1] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 per Allsop CJ at [3]. The Applicant’s father died when he was young, and he lived with his mother and brother. His father had two wives, and his older half-brother and sisters were grown up and did not live with them. When war started in Ethiopia, the Applicant was sent to boarding school. While he was at boarding school, he was told his mother had died. He remained at the boarding school and was later told his half-brother had arranged for him to travel to Australia with his brother. The Applicant claimed protection on the basis that his brother was involved in the communist government in Ethiopia. He says once a man came and put a gun to his head and asked where his half-brother was and recalls other people asking for his half-brother. He stated in his application for the protection visa that he feared returning to Ethiopia because he would be targeted and harmed because of his half-brother, and people who felt harmed by his half-brother would want to hurt him. He also claimed he would be unable to get the support he needs for his mental health and drug rehabilitation. The Applicant has experienced mental health issues since 2006 when he started hearing voices but did not receive any treatment for this condition until he was in prison in 2008. He worked as a printer but was unable to continue in his trade due to his mental health. The Applicant states he started using methamphetamines in 2008 and has intermittently been on methadone. On arriving in Australia, the Applicant initially lived with his half-brother and his wife but has not had any contact with them since 2013 when his half-brother discovered he had been in prison. He does not have contact with his younger brother. He thinks his sisters fled to countries neighbouring Ethiopia. His convictions for criminal offending commenced in 2004, and the offence which has attracted the greatest penalty is aggravated burglary for which he was sentenced in 2008 to a term of imprisonment of 20 months. The Applicant’s visa was cancelled in 2012, following convictions for trafficking cannabis, possessing a drug of dependence, burglary, theft, intentionally destroying property and unlawful assault for which he was sentenced to imprisonment for 12 months. His visa was not ultimately cancelled because of this offending, but he was issued with a written warning that visa cancellation may be reconsidered if he committed further offences or otherwise breached the character test, and that disregard of this warning would weigh heavily against him if his case were reconsidered.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

He has been in the community since October 2024, with one period of admission to hospital. In this time there has been damage to his hotel room as a result of his mental illness. CONCLUSION ON THE PROTECTION OF THE AUSTRALIAN COMMUNITY The grant of a permanent visa may provide some protection for the community if the Applicant can access the NDIS and receive a higher rate of government payments. However, I am not convinced this significantly reduces the risk to the community or provides protection to the Australian community from further criminal acts. The Applicant remains at least a moderate risk of offending and had not had recent rehabilitation. Overall, this consideration weighs substantially in favour of not granting the visa. FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN Clause 8.2 of the Direction provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision. The Direction states that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.[33][33] The Direction, cl 8.2(1). There is no information before me to indicate that the Applicant has perpetrated family violence, and this consideration does not weigh for or against the refusal of the visa. THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Clause 8.3 of the Direction provides that:(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. (2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to: a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that: i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia. The Applicant does not have contact with his immediate family, and I consider the decision does not have an impact on immediate family members, other than the loss of an opportunity to form these ties with his half-brother and brother in the future.

Ratio Decidendi

Legal Principle Established

The Direction also sets out matters to be considered in refusing or not revoking the cancellation of a visa. It requires certain primary and other considerations to be considered in making a decision, and states in taking these into account that:(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.(2)The primary consideration … (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.(3)One or more primary considerations may outweigh other primary considerations.[7][7] Ibid cl 7.THE PRIMARY CONSIDERATIONS The Direction contains five primary considerations, which are:(1) protection of the Australian community from criminal or other serious conduct;(2) whether the conduct engaged in constituted family violence;(3) the strength, nature and duration of ties to Australia;(4) the best interests of minor children in Australia;(5) expectations of the Australian community.[8][8] Ibid cl 8. I have considered each one in turn, keeping in mind the principles in cl 5.2 of the Direction.PROTECTION OF THE AUSTRALIAN COMMUNITY The Direction requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government, and 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.[9] [9] Ibid cl 8.1(1). The Tribunal is directed to have particular regard to the principle that entering or 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.[10][10] Ibid. The Applicant argues the protection of the community strongly favours the grant of the visa. This is because to be eligible for the National Disability Insurance Scheme (‘NDIS’) he must be an Australian citizen or permanent resident. Australian residency allows him to apply for a Disability Support Pension (‘DSP’) which has a higher rate of payment than the Special Benefit he currently receives. It is submitted that receiving services through the NDIS and receiving a higher rate of income support from a DSP will better protect the community as it reduces his risk of reoffending. This argument arises because the Act does not require the Applicant to be removed from Australia under s 198 because a protection finding has been made. As there are currently no reasonable prospects of the Applicant being removed from Australia, he has been granted a Bridging Visa R (Subclass 070) visa (‘BVR’) and released from immigration detention consistent with the decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs.[11] The BVR continues until the Minister becomes satisfied that the Applicant’s removal from Australia is reasonably practicable, the Minister issues a written notice that the Applicant has breached a condition of his visa or another BVR is granted.[12] It is argued that as the Applicant cannot currently be removed from Australia, the protection of the Australian community favours the grant of the visa as receiving these services and this payment reduces the risk to the community. [11] [2023] HCA 37.[12] Migration Regulations 1994 (Cth) Schedule 2, Cl.070.511.