WKMZ and Minister for Home Affairs (Migration)

Case [2019] AATA 4381

WKMZ and Minister for Home Affairs (Migration) [2019] AATA 4381 (14 October 2019)

Division:GENERAL DIVISION

File Number:               2019/4472

Re:WKMZ

APPLICANT

AndMinister for Home Affairs

RESPONDENT

Decision

Tribunal:Member Tigiilagi Eteuati

Date:14 October 2019 

Date of written reasons:        28 October 2019

Place:Melbourne

The decision under review is affirmed.

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

Member Tigiilagi Eteuati

Catchwords

MIGRATION – mandatory cancellation of Applicant’s visa under s 501(3A) – Applicant failed to pass the character test - whether there is another reason why cancellation decision should be revoked - application of Direction No. 79 – consideration of Australia’s international non-refoulement obligations – decision under review affirmed

Legislation

Migration Act 1958 (Cth) – s 36, s 65, s 195A, s 197C, s 198, s 417, s 499, s 501, s 501CA, s 501J

Migration Regulations 1994 (Cth), sch 2, reg 866.226

Cases

Afu v Minister for Home Affairs [2018] FCA 1311

Al-Kateb v Godwin [2004] HCA 37

Ali v Minister for Immigration and Border Protection [2018] FCA 650

AXT19 v Minister for Home Affairs [2019] FCA 1423

Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83

BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96

BDQ19 v Minister for Home Affairs [2019] FCA 163

Chol v Minister for Immigration & Anor [2018] FCCA 306

DFNM and Minister for Home Affairs (Migration) [2019] AATA 3769

DKXY v Minister for Home Affairs [2019] FCA 495

DMH16 v Minister for Immigration and Border Protection [2017] FCA 448

Doan and Minister for Home Affairs (Migration) [2019] AATA 169

DOB18 v Minister for Home Affairs [2018] FCA 1523

Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216

FYBR v Minister for Home Affairs [2019] FCA 500

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166

GBV18 v Minister for Home Affairs [2019] FCA 1132

Goundar v Minister for Immigration and Border Protection [2016] FCA 1203

Greene v Assistant Minister for Home Affairs [2018] FCA 919

Khalil v Minister for Home Affairs [2019] FCAFC 151

Marzano v Minister for Immigration & Border Protection [2017] FACFC 66

Minister for Immigration and Border Protection v Le [2016] FCAFC 120

Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216

Minister of State for Immigration & Ethnic Affairs v Ah Hin Teoh [1995] HCA 20

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263

Omar v Minister for Home Affairs [2019] FCA 279

Patto v Minister for Immigration and Multicultural Affairs [2000] FCA 1554

PRHR and Minister for Immigration and Border Protection (Migration) [2017] AATA 2782

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6

RWDX and Minister for Immigration and Border Protection (Migration) [2019] AATA 123

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

SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40

SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34

TGXY and Minister for Home Affairs…

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Details
AGLC
WKMZ and Minister for Home Affairs (Migration) [2019] AATA 4381
Case
[2019] AATA 4381
Decision Date

CaseChat Overview and Summary

This matter concerned an application by WKMZ (the Applicant) to the Administrative Appeals Tribunal (the Tribunal) for review of a decision not to revoke the mandatory cancellation of his visa under section 501(3A) of the Migration Act 1958 (Cth). The Applicant had failed to pass the character test due to a substantial criminal record, including multiple convictions for serious offences, some involving imprisonment for 12 months or more. The central dispute revolved around whether there was "another reason" why the cancellation decision should be revoked, requiring the Tribunal to consider various factors outlined in Direction No. 79.

The Tribunal was required to determine whether the Applicant passed the character test, which involved assessing whether he had a substantial criminal record as defined by the Act. If he did not pass the character test, the Tribunal then had to consider whether there was another reason to revoke the visa cancellation. This involved weighing several primary considerations, including the protection of the Australian community from criminal or other serious conduct, the expectations of the Australian community, the best interests of minor children, Australia's international non-refoulement obligations, the strength and duration of the Applicant's ties to Australia, the extent of impediments if removed, and the hardship to the Applicant.

In its reasoning, the Tribunal found that the Applicant did not pass the character test due to his extensive criminal history, which included convictions for offences such as robbery, making threats to kill, unlawful assault, and intentionally causing injury, with significant aggregate prison sentences imposed. The Tribunal determined that the primary considerations of protecting the Australian community and the expectations of the Australian community weighed heavily against revoking the cancellation, citing a high likelihood of reoffending due to alcohol abuse, mental health issues, and a propensity for violence. However, the Tribunal also found that the best interests of the Applicant's six Australian child siblings, Australia's non-refoulement obligations, the strength of his ties to Australia, impediments to removal, and hardship to the Applicant all weighed in favour of revocation. Despite these factors favouring revocation, the Tribunal concluded that the significant risk to the Australian community outweighed the other considerations.

The Tribunal affirmed the decision not to revoke the cancellation of the Applicant's visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

If the Tribunal is satisfied that the Applicant passes the character test or that there is another reason why the cancellation decision should be revoked the Tribunal must find in the Applicant’s favour. The appropriate decision in these circumstances would be for the decision refusing to revoke cancellation to be set aside and for a decision in substitution to be made revoking the cancellation decision. evidence The Tribunal has considered all of the evidence permissibly before it including the documents described in section 501G of the Act (“G Documents”), the documents tendered into evidence by the Applicant and marked as exhibits A1 to A17 and the documents tendered into evidence by the Respondent and marked as exhibits R1 to R3. The evidence contained in these documents is discussed throughout this decision: see ‘Annexure 1’ to this decision. The Tribunal is of course aware of the restrictions on the consideration of certain evidence contained in sections 500(6H) and (6J) of the Act. The Tribunal has not had regard to any evidence provided in support of Applicant’s case which was not provided to the Respondent at least two clear business days prior to the hearing. However, in accordance with the decision of the High Court in Uelese v Minister for Immigration and Border Protection [2015] HCA 15, the Tribunal has considered the evidence of witnesses provided in answer to questions in cross-examination by the Respondent and questions from the Tribunal. A summary of evidence of witnesses is provided below from paragraph 35 of these reasons.does the Applicant pass the character test? Section 501(6) relevantly provides:(6) For the purposes of this section, a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7)); or … Section 501(7) relevantly provides:(7)For the purposes of the character test, a person has a substantial criminal record if: …(c)the person has been sentenced to a term of imprisonment of 12 months or more; or… The Applicant will be taken to have a substantial criminal record, and thus not pass the character test, if he has been sentenced to a term of imprisonment of 12 months or more. Section 501(12) of the Act provides that “imprisonment” includes any form of punitive detention in a facility or institution.Offending history An Australian Criminal Intelligence Commission (ACIC) Criminal History Check for the Applicant dated 8 October 2018 shows the following offences committed by the Applicant:(a)On 4 September 2018, the Applicant was convicted of the following offences: (i)recklessly cause injury, the Applicant was sentenced to 9 months imprisonment;(ii)unlawful assault, the Applicant was sentenced to 2 months imprisonment;(iii)theft from shop (shopsteal)(iv)theft(v)commit indictable offence while on bail, the Applicant was sentenced in relation to the above three offences to 2 months imprisonment with one month to be served concurrently;(vi)Drunk and disorderly in public place, the Applicant was convicted and discharged.The Applicant was sentenced to an effective total period of imprisonment of one year in relation to all of the above offences.(b)On 18 May 2016, the Applicant was convicted of robbery and make threat to kill and sentenced to an aggregate of 18 months imprisonment. (c)On 23 March 2016, the Applicant was convicted of the following offences: (i)intentionally damage property;(ii)without authorisation/excuse enter private place;(iii)three charges of drunk in a public place;(iv)refuse or fail to state name and address;(v)refused to leave private place after warning(vi)unlawful assault;(vii)two charges of contravene a conduct condition of bail;(viii)wilfully trespassing a public place;(ix)use indecent language in public place;(x)assault police officer;(xi)fail to answer bail;(xii)wilfully damage property;(xiii)throw missile to danger person;(xiv)drunk and disorderly in public place;(xv)fail to leave licensed premises – drunk/violent/quarrelsome; and(xvi)two charges of possess cannabisThe Applicant was sentenced to an aggregate total sentence of imprisonment of 40 days in relation to these offences.(d)On 23 March 2016, two charges of contravene community corrections order were found to be proven against the Applicant. (e)On 19 November 2015, the Applicant was found guilty of the following offences:(i)contravene community corrections order. Breach of community corrections order of 27 November 2014. The order was varied and the Applicant was given a community corrections order for 12 months to perform all 110 hours of unpaid community work; (ii)Two charges of affray (common law);(iii)unlawful assault. The Applicant was sentenced to an aggregate of one month imprisonment for this offence and the two affray offences;(iv)possess cannabis. The Applicant was convicted and fined $50;(v)Contravene community corrections order. Breach of community corrections order of 21 April 2015. The order was varied and the Applicant was given a community corrections order for 12 months to perform 133 hours of unpaid community work.(f)On 21 April 2015, the Applicant was convicted of the following offences:(i)Theft;(ii)unlawful assault;(iii)contravene community correction order.A further community correction order was imposed for 12 months to perform 150 hours of community work.(g)On 27 November 2014, the Applicant was convicted of the following offences:(i)assault protective services officer;(ii)behave in an offensive manner public place;(iii)careless driving of a motor vehicle;(iv)unlicensed driving; use handheld mobile phone - vehicle moving;(v)fail to render assistance after accident;(vi)fail give name/address - property damaged;(vii)fail report to police owner not present;(viii)two charges of unlawful assault;(ix)lit fire in open air without authority;(x)assault in company;(xi)assault police on duty.The Applicant was convicted of the above offences and a 12 month community corrections order was imposed on the Applicant to perform 150 hours of community service.(h)On 7 December 2012, the Applicant was found guilty of the following offences in the Dandenong Children’s Court:(i)Theft;(ii)recklessly cause injury. Without conviction the Applicant was placed on probation to 9 July 2013.(i)On 10 October 2012, the Applicant was found guilty of the following offences in the Dandenong Children’s Court:(i)two charges of theft from shop (shopssteal);(ii)affray (common law);(iii)intentionally destroyed property;(iv)fail to answer bail;(v)attempted robbery;(vi)two charges of robbery;(vii)deal with property suspected to be a proceed of crime.(viii)Intentionally cause injury.Without conviction the Applicant was placed on probation to 9 July 2013.(j)On 17 August 2012 the Applicant was found guilty of the following offences in the Dandenong children’s court:(i)two charges of affray (common law);(ii)intentionally cause injury;(iii)recklessly cause injury;(iv)two charges of failed to answer bail.The Applicant was convicted of each charge in order to be detained in a youth Justice Centre for a period of six months.

Decision

Reasons for decision

The Tribunal finds that this consideration weighs in favour of revocation of the decision to cancel the Applicant’s visa. The Tribunal attributes significant weight to this consideration in the Applicant’s favour.Conclusion: Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa? The Tribunal has found that the primary consideration of the protection of the Australian community weighs significantly against revocation of visa cancellation. Similarly, the Tribunal has found that the primary consideration of the expectations of the Australian community weighs significantly against revocation of visa cancellation. The Tribunal has found that much of the Applicant’s offending was very serious, that there would be great harm to members of the Australian community if they were repeated and that there is a high risk that the Applicant will re-offend. The Tribunal has also found that the consideration of the expectations of the Australian community weighs significantly against revocation of visa cancellation, notwithstanding the hardship to the Applicant’s family that non-revocation would cause and the length of time that the Applicant has spent in Australia since he was a child. The Tribunal has found that the primary consideration of the best interests of minor children, in this case, each of his six Australian child siblings, weighs significantly in favour of revocation of the cancellation decision. The Tribunal has found that the consideration of Australia’s international non-refoulement obligations weighs moderately this in favour of revocation of the cancellation decision. The Tribunal has found that the consideration of the strength, nature and duration of ties of the Applicant to Australia weighs in favour of revocation of the cancellation decision and attributed moderate weight to this consideration. The Tribunal has found that the consideration of the extent of impediments if removed weighs in favour of revocation of the cancellation decision and attributed significant weight to this consideration. Finally, the Tribunal has found the consideration of hardship to the Applicant weighs in favour of revocation of the cancellation decision and has attributed significant weight to this consideration. In this case the Tribunal considers that there is a high likelihood that the Applicant will reoffend in Australia. The Applicant has been given multiple opportunities to reform his behaviour and has failed to do so. The Applicant has a serious problem with alcohol abuse and this, in combination with mental health issues and an apparent propensity for violence, have contributed to the Applicant repeatedly committing serious acts of violence against members of the Australian community. In these circumstances the Tribunal considers that the primary considerations of the protection and expectations of the Australian community weigh heavily against setting aside the decision not to revoke the cancellation of the Applicants visa. However, this is a difficult decision because all of the Applicant’s known relatives reside in Australia, including six child half-siblings. Their interests weigh moderately in favour of revoking the cancellation decision. In addition, unless granted a visa, the Applicant will return to a poor, war torn country where he is likely to suffer hardship and where there is a real possibility that he will be harmed. These matters also weigh heavily in the Applicant’s favour. There is also a possibility, however low, that the Applicant will be inadvertently returned to South Sudan in breach of Australia’s non-refoulement obligations. This consideration weighs moderately in the Applicant’s favour.

Ratio Decidendi

Legal Principle Established

The Applicant also has a 13 year old brother, a seven year old sister, a four year old sister and a three year old sister. The youngest three siblings are unaware that the Applicant has committed any offences or that he has been in gaol or immigration detention. The Applicant’s mother indicated that all of the siblings would be very sad if the Applicant had to return to South Sudan and that this would have a real negative impact on them. The Applicant indicated that his younger siblings tell him that they miss him and want him to return home. He said that his youngest siblings were confused about where he was. The Applicant’s stepfather indicated that the youngest siblings always told him that they loved it when the Applicant came over and asked him when the Applicant would return. The Applicant’s stepfather indicated that the Applicant used to take the younger siblings to the playground, play sports with them, tell them stories and make them laugh. He said that they have become very attached to the Applicant.primary consideration A: Protection of the australian community from criminal or other serious conduct The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction provides that decision-makers should give consideration to:a)the nature and seriousness of the non-citizen’s conduct to date; andb)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.The nature and seriousness of the Applicant’s conduct to date When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors including: a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very 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 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 courts for a crime or crimes;e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;f)The cumulative effect of repeated offending;g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour); (i) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;