XVNQ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 1559

XVNQ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1559 (12 June 2024)
Division:GENERAL DIVISION
File Number(s): 2024/1808
Re:XVNQ
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Mr Rob Reitano, Member
Date of decision: 12 June 2024
Place:Sydney

I set aside the delegate’s decision and substitute in its place a decision revoking the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
........................[sgd]................................................
Mr Rob Reitano, Member
CATCHWORDS
MIGRATION –– visa cancellation – protection of the community – very serious criminal offending – likely harm of re-offending - risk of re-offending - expectations of the Australian community –– nature, duration and ties to community – best interests of children -– impediments if removed – impact on mother who was a victim of offending - weight of considerations when compared to one another -- satisfaction about other reason – best interests of children is other reason - decision to refuse to revoke cancellation set aside and substituted
LEGISLATION
Migration Act 1958 (Cth)
Crimes Act 1900 (NSW)
CASES
CRNL v Minister Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs, Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023)
REASONS FOR DECISION
Mr Rob Reitano, Member
12 June 2024

The Applicant asks the Tribunal to set aside a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (Minister) who refused his request to revoke a decision cancelling his Class TY Subclass 444 Special Category (Temporary) visa (Visa). He also asks the Tribunal to revoke the decision cancelling the visa so that he can remain living in Australia.
The Applicant’s visa was cancelled because he failed the character test in the Migration Act 1958 (Cth) (Act) following being sentenced to three years imprisonment.
The Applicant can only have the decision which cancelled his visa revoked if he can satisfy the Tribunal that there is ‘another reason’ to revoke that decision. That is because the Act provides that as a ground for revoking a decision cancelling a visa and it is the only ground available to the Applicant which will achieve that objective.
I am satisfied that there is another reason to revoke the decision cancelling the visa and what follows are my reasons for arriving at that satisfaction.
ANOTHER REASON TO REVOKE THE CANCELLATION?
In deciding whether there is ‘another’ reason to revoke a decision cancelling a visa the Tribunal is required to conform to Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction) which is a direction given to the Tribunal by the Minister under the Act.[1]
[1] s.499(2A)…

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

AGLC: XVNQ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1559
Case: [2024] AATA 1559
Decision Date: 12 June 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a dispute between XVNQ (the applicant) and the Minister for Immigration, Citizenship and Multicultural Affairs concerning the cancellation of the applicant's visa. The applicant sought to have the cancellation revoked.

The primary legal issue before the Tribunal was whether there was "another reason" to revoke the visa cancellation, as contemplated by the *Migration Act 1958* (Cth). This required the Tribunal to weigh various considerations, including the applicant's very serious criminal offending, the likelihood of re-offending, and the expectations of the Australian community, against factors favouring revocation, specifically the best interests of the applicant's three young children.

The Tribunal found that the best interests of the applicant's children constituted a strong countervailing consideration. In the specific circumstances of this case, this factor was found to outweigh the other considerations that weighed against revocation, such as the serious criminal offending and risk of re-offending. The Tribunal was satisfied that this "other reason" justified the revocation of the visa cancellation.

Consequently, the Tribunal set aside the delegate's decision to refuse to revoke the cancellation and substituted a decision revoking the cancellation of the applicant's Class TY Subclass 444 Special Category (Temporary) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The evaluation I have undertaken leads me to being satisfied that there is another reason to revoke the cancellation of the visa which is because of the best interests of the Applicant’s three young children. This is a strong countervailing consideration that in the circumstances of this case outweighs the other factors that point against revocation. DECISION I set aside the delegate’s decision and substitute in its place a decision revoking the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.

Ratio Decidendi

Legal Principle Established

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