XFCS and Minister for Home Affairs (Migration) - [2019] AATA 201

XFCS and Minister for Home Affairs (Migration) [2019] AATA 201 (20 February 2019)
Division:GENERAL DIVISION
File Number: 2018/7013
Re:XFCS
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:R Cameron, Senior Member
Date:20 February 2019
Place:Melbourne

The Tribunal affirms the decision under review.
.......[sgd]................................................
R Cameron, Senior Member
Catchwords
MIGRATION – mandatory cancellation of visa – failure to pass the character test – serious and violent offending – Ministerial Direction No. 65 – where primary considerations outweigh other considerations – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Ayache v Minister for Immigration and Border Protection, Re [2018] AATA 310
Do and Minister for Immigration and Border Protection, Re [2016] AATA 390
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
NDFN v Minister for Immigration and Border Protection, Re [2017] AATA 892
Waits v Minister for Immigration and Multicultural and Indigenous Affairs, Re [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Ministerial Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
The Immigration (European Economic Area) Regulations 2016 – 2016 No. 1052 Part 4 Regulation 27
Gov.UK Home Office report – Immigration Rules published 25 February 2016 updated 1 February 2019
Home Office report – Criminal record certificate requirement Version 2.0 published 11 January 2018
Gov.UK document – Settled and pre-settled status for EU citizens and their families
Gov.UK document – Existing UK residence documents for EU citizens
Balkan Transitional Justice – Intolerance Towards Serbs ‘Escalates in Croatia’: Report dated 7 March 2017
Refworld – Freedom in the World 2018 – Croatia dated 1 August 2018
Minority Rights Group report on “Serbs”
Croatia 2017 Human Rights Report
Refworld – Croatia: Treatment of minority groups, including, Roma, Serbs, Bosnians, and Romanians; state protection available in cases of violence and discrimination, including legislation (2012-June 2015) dated 15 July 2015
Serbo-Croatian language article
Serbian language article
REASONS FOR DECISION
R Cameron, Senior Member
20 February 2019
INTRODUCTION

The Applicant was born in Croatia. He arrived in Australia in February 2003 when he was aged 13. He has resided in Australia ever since.
On 15 March 2018, the Applicant’s Class XB Subclass 200 refugee visa (“the visa”) was cancelled under section 501(3A) of the Migration Act 1958 (Cth) (“the Act”) (“the original decision”).
Following cancellation of the visa the Applicant made representations to the Respondent seeking revocation of the original decision.
On 28 November 2018 a delegate of the Respondent decided, under section 501CA(4) of the Act, not to revoke the original decision (“the reviewable decision”). The Applicant has applied to this Tribunal for review of that decision.
RELEVANT LAW
Migration Act 1958
With regard to the mandatory cancellation of visas, section 501(3A) of the Act provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does…

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.

Continue reading XFCS and Minister for Home Affairs (Migration)

Details

AGLC: XFCS and Minister for Home Affairs (Migration) [2019] AATA 201
Case: [2019] AATA 201
Decision Date: 20 February 2019

CaseChat Overview and Summary

This matter concerned an application by the Applicant to revoke the mandatory cancellation of his visa, which had been cancelled due to his failure to pass the character test, specifically due to serious and violent offending. The dispute was heard by R Cameron, Senior Member, of the Tribunal.

The Tribunal was required to determine whether there was another reason why the original decision to cancel the Applicant's visa should be revoked, pursuant to section 501CA(4)(b) of the Migration Act 1958 (Cth). In making this determination, the Tribunal was bound to consider the primary considerations outlined in Ministerial Direction No. 65, which included the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia, and the expectations of the Australian community.

The Tribunal reasoned that the Applicant's offending, which commenced in 2005 and continued until his arrest in 2012 for offences including blackmail, common-law assault, intentionally causing injury, and theft, was very serious. This seriousness was assessed against the factors in paragraph 13.1.1 of the Direction, including the nature of the offences and the cumulative effect of repeated offending. The Tribunal found that a relapse by the Applicant would likely result in violent behaviour, posing an unacceptable risk of future harm to the Australian community, which weighed heavily against revocation. Furthermore, the Tribunal placed no weight on the best interests of minor children, as the Applicant had not identified any such children affected by the decision, and the evidence regarding his assistance to a friend and her children was insufficient. Finally, the Tribunal considered the expectations of the Australian community, which expects non-citizens to obey Australian laws, and concluded that the nature of the Applicant's character concerns and offences meant the community would expect him not to hold a visa.

The Tribunal affirmed the mandatory cancellation of the Applicant's visa, ordering that the decision not be revoked.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

There was viva voce evidence from the following witnesses:(a)The Applicant;(b)The Applicant’s mother; (c)The Applicant’s partner; and(d)Mr Tim Watson-Munro.SOME OBSERVATIONS ON THE APPLICANT’S BACKGROUND The Applicant was born in Croatia to Serbian parents in March 1989. His family was affected by the outbreak of war in Croatia following the disintegration of the former Yugoslavia. The Applicant states that his family’s home was burnt down in 1995 or thereabouts. His father was also shot in the conflict. The Applicant apparently observed these events as a young boy. As a result of the conflict in Croatia the Applicant’s family decided to flee. They travelled by tractor to Serbia. They remained there for some time until they eventually resettled in a refugee camp in Kosovo. They remained in Kosovo for another four years. Conflict ensued in Kosovo in approximately 1999. Once again, given the conflict that emerged, the family returned to Serbia. The conditions which the family endured throughout this period after leaving Croatia can be best described as spartan. They resided in several refugee camps and frequently the entire family was living in a very small room. Eventually, in December 2002 the family were granted refugee visas for Australia. They first arrived in 2003 having spent most of the previous eight years in refugee camps either in Serbia or Kosovo. Throughout this time the Applicant had witnessed and lived through difficult times which included conflict and war hardship, and has left the Applicant with some level of trauma. The history of the family’s experiences was very well articulated by the Applicant’s mother both in her witness statement and her viva voce evidence to the Tribunal. The family’s first residence in Australia was in Bernie in Tasmania. They remained there for approximately one year before they moved to Melbourne in the greater Dandenong area as a result of various friendships that they had within the Serbian community. The Applicant’s father, it appears, was frequently violent to both his children and his wife. The Applicant and his mother gave consistent evidence concerning this fact. The Applicant’s mother and her husband separated in approximately February 2004. The eldest son left home in approximately 2006. Later the Applicant left home and led a somewhat itinerant lifestyle. In terms of accommodation, he engaged in the practice of what he described as “couch surfing”. The evidence of the Applicant and his mother was that this did have an effect on the Applicant to the extent that he stopped attending school in approximately 2005. The Applicant’s first recorded offending occurred in 2005.THE PRIMARY CONSIDERATIONS Paragraph 13(2) of the Direction with respect to revocation requests prescribes the Primary considerations to be taken into account by the decision-maker. It states:(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:a)Protection of the Australian community from criminal or other serious conduct;b) The best interests of minor children in Australia;c) Expectations of the Australian community.PROTECTION OF THE AUSTRALIAN COMMUNITY

Evidence

Evidence Before The Court

Therefore, under section 501CA(4)(b) of the Act, the issue to be determined by the Tribunal is whether there is another reason why the original decision should be revoked.[3][3] Section 501CA (4)(b)(ii) of the Act.THE EVIDENCE BEFORE THE TRIBUNAL There was both documentary and viva voce evidence before the Tribunal. The documentary evidence consisted of the following:(a)Witness statement of the Applicant together with annexures dated 21 January 2019;(b)Witness statement of the Applicant’s mother together with annexures dated 16 January 2019;(c)Witness statement of the Applicant’s partner together with annexures dated 16 January 2019;(d)Witness statement of previous employer dated 6 February 2019;(e)A bundle of seven articles concerning various issues in Croatia;(f)Supplementary Report of Mr Tim Watson-Munro, a Forensic Psychologist, dated 21 January 2019;(g)The G documents; and(h)Supplementary G documents. There was viva voce evidence from the following witnesses:(a)The Applicant;(b)The Applicant’s mother; (c)The Applicant’s partner; and(d)Mr Tim Watson-Munro.SOME OBSERVATIONS ON THE APPLICANT’S BACKGROUND The Applicant was born in Croatia to Serbian parents in March 1989. His family was affected by the outbreak of war in Croatia following the disintegration of the former Yugoslavia. The Applicant states that his family’s home was burnt down in 1995 or thereabouts. His father was also shot in the conflict. The Applicant apparently observed these events as a young boy. As a result of the conflict in Croatia the Applicant’s family decided to flee. They travelled by tractor to Serbia. They remained there for some time until they eventually resettled in a refugee camp in Kosovo. They remained in Kosovo for another four years. Conflict ensued in Kosovo in approximately 1999. Once again, given the conflict that emerged, the family returned to Serbia. The conditions which the family endured throughout this period after leaving Croatia can be best described as spartan. They resided in several refugee camps and frequently the entire family was living in a very small room. Eventually, in December 2002 the family were granted refugee visas for Australia. They first arrived in 2003 having spent most of the previous eight years in refugee camps either in Serbia or Kosovo. Throughout this time the Applicant had witnessed and lived through difficult times which included conflict and war hardship, and has left the Applicant with some level of trauma. The history of the family’s experiences was very well articulated by the Applicant’s mother both in her witness statement and her viva voce evidence to the Tribunal. The family’s first residence in Australia was in Bernie in Tasmania. They remained there for approximately one year before they moved to Melbourne in the greater Dandenong area as a result of various friendships that they had within the Serbian community. The Applicant’s father, it appears, was frequently violent to both his children and his wife. The Applicant and his mother gave consistent evidence concerning this fact. The Applicant’s mother and her husband separated in approximately February 2004. The eldest son left home in approximately 2006. Later the Applicant left home and led a somewhat itinerant lifestyle. In terms of accommodation, he engaged in the practice of what he described as “couch surfing”. The evidence of the Applicant and his mother was that this did have an effect on the Applicant to the extent that he stopped attending school in approximately 2005.

Decision

Reasons for decision

Were the Applicant to relapse, the indicators are that more likely than not the consequences would be a resort to some level of violent behaviour. This risk of future harm to the Australian community, were he to reoffend is unacceptable. Even if the Applicant offers a low probability of reoffending as he contends (which the Tribunal does not accept), the risk if he were to reoffend is that great harm would result. Such a risk of future harm from the Applicant is unacceptable. Therefore, this consideration weighs heavily in favour of refusing to revoke the mandatory cancellation of the Applicant’s visa.THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION Paragraph 13.2(1) of the Direction requires decision-makers to make a determination about whether revocation is, or is not, in the best interests of any minor children. The Applicant did not identify any minor children in Australia who would be affected by a decision not to revoke the mandatory cancellation of his visa. No submissions were made either in the Statement of Facts, Issues and Contentions filed on his behalf or in submissions from his counsel, concerning this primary consideration[18].[18] It should also be recorded that there was no reference to any minor children affected by the decision in the Request for Revocation of a Mandatory Visa Cancellation Under s501 (3A) and the attached Personal Circumstances Form which were contained in the G documents at Pages 90-110.Similarly, there was no reference to this primary consideration in the extensive submission prepared by his then lawyers dated 4 May 2018 that was submitted to the Respondent. This submission is found that page 111 of the G documents. As was observed by the Respondent in its submission, there was a statement contained in the material forwarded to it on behalf of the Applicant with the request to revoke the mandatory cancellation from a friend of his. This statement attested to the help and support that the Applicant had provided her and her children over some time.[19][19] The Statement is at page 156 of the G documents. There is little evidence in the statement about the assistance that has been provided by the Applicant to the maker of the statement and her children. The statement does not identify the frequency of the contact or what he actually did for them. It makes it virtually impossible for the Tribunal to reach any concluded view on the content of this statement and enable it to adjudicate on this primary consideration. Additionally, as the relationship between the Applicant and these children is non-parental, less weight should generally be given to such a relationship.[20][20] Paragraph 13.2(4)(a) of the Direction. For these reasons the Tribunal places no weight on this consideration.EXPECTATIONS OF THE AUSTRALIAN COMMUNITY Paragraph 13.3 of the Direction relevantly 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 not revoke the mandatory visa cancellation of such a person. Non-revocation 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 hold a visa. Decision-makers should have due regard to the Government’s views in this respect.

Ratio Decidendi

Legal Principle Established

The Applicant’s first recorded offending occurred in 2005.THE PRIMARY CONSIDERATIONS Paragraph 13(2) of the Direction with respect to revocation requests prescribes the Primary considerations to be taken into account by the decision-maker. It states:(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:a)Protection of the Australian community from criminal or other serious conduct;b) The best interests of minor children in Australia;c) Expectations of the Australian community.PROTECTION OF THE AUSTRALIAN COMMUNITY Paragraph 13.1(1) of the Direction requires the Tribunal, when considering the protection of the Australian community, to acknowledge 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. Paragraph 13.1(2) further states:(2) Decision-makers should also give consideration to:(a)The nature and seriousness of the non-citizen’s conduct to date; and(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.Nature and seriousness of the Applicant’s conduct Paragraph 13.1.1 of the Direction relevantly provides that:(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) The sentence imposed by the courts for a crime or crimes;d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;e) The cumulative effect of repeated offending;…g)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).… The Tribunal finds on all the evidence available to it that the Applicant’s offending is very serious in line with the factors contained in paragraph 13.1.1 of the Direction. Details of the Applicant’s offending are contained in several documents that are before the Tribunal. Additionally, he also gave evidence concerning several of the offences that he committed. The National Police Certificate provides details of offences that have been committed by him, the sentences that were imposed and the particular courts concerned. His offending commenced in 2005, which it will be recalled was approximately two years after his arrival in Australia in February 2003. The first appearance was in the Children’s Court. His offending continued until his arrest in 2012 for various offences, which he was subsequently sentenced for in August 2014, including; blackmail, common-law assault, intentionally causing injury and theft.