WSML and Minister for Home Affairs (Migration) - [2019] AATA 41

WSML and Minister for Home Affairs (Migration) [2019] AATA 41 (22 January 2019)
Division:GENERAL DIVISION
File Number:2018/6431
Re:WSML
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans
Date:22 January 2019
Place:Perth

The Reviewable Decision dated 18 June 2018 is set aside and the Tribunal makes a decision in substitution that discretion should not be exercised to cancel the Applicant’s visa under s 501(2) of the Migration Act 1958 (Cth).
...................................sgd....................................
Senior Member Dr M Evans
CATCHWORDS
MIGRATION – cancellation of visa – Applicant concedes he does not pass the character test – substantial criminal record – domestic violence – driving and traffic offences – Applicant living offence free in community for approximately three years and five months –Direction no. 65 – primary and other considerations – protection of the Australian community – best interests of minor children – expectations of the Australian community – nature and seriousness of criminal offending – risk of engaging in future criminal conduct – strength, nature and duration of ties to Australia – Applicant of Australian Aboriginal descent – Applicant also of Maori descent – extent of impediments if returned to New Zealand – effect of permanent cancellation of the Applicant’s visa - decision under review set aside and a new decision made in substitution for the decision so set aside
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 43
Migration Act 1958
(Cth) – s 195A, s 499, s 499(1), s 499(2A), s 500(1)(ba), s 500(6B),
s 500(6L), s 501, s 501(2), s 501(6), s 501(7), s 501(7A), s 501CA, s 501CA(4),
s 501E(2), s 501G(1)

CASES
Afu and Minister for Home Affairs [2018] FCA 1311
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Le and Minister for Home Affairs [2018] AATA 4126
Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135; (1981) 39 ALR 649
NBCM and Minister for Home Affairs [2018] AATA 2387
Nigro v Secretary to the Department of Justice (2013) 41 VR 359
QSBL and Minister for Home Affairs [2018] AATA 2074
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203
WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117
XFKR and Minister for Immigration and Border Protection [2017] AATA 2385
ZTGP and Minister for Home Affairs [2018] AATA 3518
SECONDARY MATERIALS
“Freedom through Growth”, People at Risk Solutions, New Zealand, for Immigration and Border Protection, Direction no. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Department of Immigration and Border Protection, 22 December 2014) – paras 6.1, 6.2, 6.3, 7, 8, 9, 9.1, 9.1.1, 9.1.2, 9.2, 9.3, 10, 10.1, 10.2, 10.3, 10.4, 10.5, Part A
Country of Origin Information…

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 41
Decision Date: 22 January 2019

CaseChat Overview and Summary

This matter concerned an application to review the cancellation of the applicant's visa. The applicant conceded that he did not pass the character test due to a substantial criminal record, which included domestic violence and driving offences. The core of the dispute was whether the discretionary power to cancel the applicant's visa under section 501(2) of the *Migration Act 1958* (Cth) should be exercised. The Administrative Appeals Tribunal (AAT), acting in the place of the original decision-maker, was tasked with considering the relevant primary and other considerations outlined in Direction No. 65.

The Tribunal was required to determine several legal issues, including the weight to be given to the best interests of the applicant's unborn child, the expectations of the Australian community regarding non-citizens obeying Australian laws and committing serious crimes, and the protection of the Australian community from harm. This involved assessing the nature and seriousness of the applicant's past offending, the risk of future criminal conduct, and the strength, nature, and duration of the applicant's ties to Australia, including his Aboriginal descent and the impediments he might face if returned to New Zealand.

In its reasoning, the Tribunal noted that the interests of an unborn child are not considered a primary consideration regarding the best interests of a child, but would be considered in relation to the strength of ties to Australia. The Tribunal also addressed the "expectations of the Australian community" consideration, referencing case law that indicated this consideration is largely defined by government policy and is generally adverse to applicants who have failed the character test and been convicted of serious crimes. The Tribunal's analysis of the protection of the Australian community involved considering the nature and seriousness of the applicant's conduct, including factors such as the type of offences, sentences imposed, frequency of offending, and any trend of increasing seriousness.

Ultimately, the Tribunal found that the decision under review, which cancelled the applicant's visa, should be set aside. A new decision was made in substitution for the cancelled decision, indicating that the Tribunal exercised its discretion to allow the applicant to retain his 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

Full text does not contain this section.

Decision

Reasons for decision

The Applicant does not contest that he did not pass the character test but argues that the discretionary power to cancel his visa under s 501(2) of the Migration Act should not be exercised. Accordingly the Tribunal, standing in the shoes of the decision-maker, will consider whether to exercise this discretionary power by considering the relevant primary and other considerations in Direction no. 65. IS THE TRIBUNAL SATISFIED THAT IT SHOULD EXERCISE DISCRETION TO SET THE CANCELLATION DECISION ASIDE? First primary consideration: Protection of the Australian Community (9.1) Paragraph 9.1(1) of Direction no. 65 provides that when decision-makers are considering the protection of the Australian community they:(1)… 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 noncitizens 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. Paragraph 9.1(2) of Direction no. 65 continues on to provide that: (2)Decision-makers should also 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.Nature and seriousness of the conduct (9.1.1(1)) Paragraph 9.1.1(1) of Direction no. 65 further provides:(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, 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 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;c)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;d)The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;e) The sentence imposed by the courts for a crime or crimes;f)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;g) The cumulative effect of repeated offending;h)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;i)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 noncitizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);j)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

Ratio Decidendi

Legal Principle Established

Relevant authorities provide that the interests of an unborn child do not form part of the primary consideration regarding the best interests of the child (see relevant authorities regarding an unborn child which were discussed by Deputy President Boyle in JNMK and Minister for Immigration and Border Protection (Migration) [2018] AATA 971 at [64] – [65]). The Tribunal will therefore consider the Applicant’s unborn child with respect to the strength, nature and duration of ties below. Third primary consideration: Expectations of the Australian Community (9.3) Paragraph 9.3(1) of Direction no. 65 provides: (1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. Decision-makers should have due regard to the Government’s views in this respect. Also, paragraph 6.3(2) of Direction no. 65 states:(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere. Relevant case law regarding the expectations of the Australian community was summarised by Member Burford in Le and Minister for Home Affairs [2018] AATA 4126 (Le) at [135]-[138] as follows:135.In the case of YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (YNQY), Mortimer J made the following comments:[76]In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to ‘tolerance’) the Australian community’s ‘expectations’ are defined only in one particular way: namely, that the Australian community ‘expects’ non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.[77] I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese v Minister for Immigration & Border Protection (2015) 256 CLR 203 at [64]–[66]).136.In YNQY the Court was, in part, considering whether the Tribunal erred in failing to make findings and/or take into account as a primary consideration the expectations of the Australian community.137.The passage referred to by Mortimer J above in Uelese v Minister for Immigration & Border Protection [2016] FCA 348 states as follows:[64]In my opinion, the reference by the Tribunal to what the Australian community expected of the Australian Government was not a matter that required evidence but was a statement of the views or policy of the Government. The language in paragraph 6.3(2) of the Direction, that the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia, is found in a list of seven ‘Principles’. There is a further reference to the expectations of the Australian community in paragraph 9.3 of the Direction where the statement is made that the Australian community expects non-citizens to obey Australian laws while in Australia. It states that where a non-citizen has breached, or where there is an unacceptable risk that they will breach, this trust or where the non-citizen has been convicted of offences in Australia, it may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate, the paragraph states, ‘simply because the nature of the character concerns or offences were such that the Australian community would expect that the person should not continue to hold a visa’. The paragraph ends by stating that decision-makers should have due regard to the Government’s views in this respect.[65]… In my opinion it is open to the Minister to make a statement of the Government’s views as to the expectation of the Australian community and for the Tribunal to act on that statement.138.Deputy President Constance in Zyaran and Minister for Home Affairs [2018] AATA 3785 at [71] and [72] and in Nguyen and Minister for Home Affairs [2018] AATA 3726 applied the reasoning of the Federal Court in YNQY. Deputy President Rayment, QC in the case of Kumeroa and Minister for Home Affairs [2018] AATA 3744 also applied YNQY.(Original emphasis.)