XYTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Case [2021] AATA 4823

XYTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4823 (31 December 2021)

Division:GENERAL DIVISION

File Number:          2021/7488

Re:XYTT  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Dr M Evans-Bonner

Date:31 December 2021

Place:Perth

The Reviewable Decision is set aside and substituted with the decision that the cancellation of the Applicant’s Visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

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

Senior Member Dr M Evans-Bonner

CATCHWORDS

MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – substantial criminal record – Direction No 90 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – best interests of minor children – expectations of the Australian community – extent of impediments if removed to the United Kingdom – links to the Australian community – strength, nature and duration of ties to Australia – Applicant is a 66-year-old man who arrived in Australia as an infant and has never visited the United Kingdom – Applicant is a victim of child sexual abuse from when he was 8 years of age by Christian Brothers Priests at the Castledare Boys’ Home and at the Clontarf Boys’ Home – Applicant subsequently sexually abused as a child at the Riverbank Reformatory whilst a ward of the State of Western Australia – child sexual abuse considered as a separate other consideration – Applicant suffers from numerous significant health conditions – Tribunal found that there is another reason to revoke the Cancellation Decision – Reviewable Decision set aside and substituted

LEGISLATION

Migration Act 1958 (Cth) ss 499, 499(1), 499(2A), 500(6B), 500(6L), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501G(1)

CASES

GPDZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4362

JFSQ and Minister for Home Affairs [2019] AATA 616

NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 114

PNLB and Minister for Immigration and Border Protection [2018] AATA 162

SCJD and Minister for Home Affairs [2018] AATA 4020

Subasinghe and Minister for Home Affairs [2019] AATA 751

Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208

SECONDARY MATERIALS

Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018)

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021) paras 4(1), 5.1, 5.1(3), 5.2, 5.2(4), 6, 7, 7(2), 8, 8(1), 8(2), 8(3), 8(4), 8.1, 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(a)(i), 8.1.1(1)(b), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2, 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(b)(i), 8.1.2(2)(b)(ii), 8.2,…

Details
AGLC
XYTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4823
Case
[2021] AATA 4823
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a delegate of the Minister's decision not to revoke the mandatory cancellation of the applicant's visa. The applicant, a 66-year-old man who arrived in Australia as an infant, had his visa cancelled under section 501(3A) of the *Migration Act 1958* (Cth) due to having a substantial criminal record and serving a full-time sentence of imprisonment. The delegate's decision not to revoke the cancellation was the subject of the review before the Tribunal.

The Tribunal was required to determine two issues: first, whether the applicant passed the character test as defined by section 501(6) of the *Migration Act*; and second, if he did not pass the character test, whether there was another reason why the visa cancellation decision should be revoked under section 501CA(4) of the *Migration Act*. The applicant sought to rely on his history as a victim of child sexual abuse, his significant health conditions, and the best interests of his minor children as grounds for revocation.

In its reasoning, the Tribunal considered the primary considerations outlined in Direction No 90, including the protection of the Australian community, the nature and seriousness of the conduct, the risk to the community, and the expectations of the Australian community. It also considered other considerations, specifically the applicant's history of child sexual abuse, his significant health conditions, and the best interests of his minor children. The Tribunal found that the applicant's extensive ties to Australia, his age, and his victimisation as a child constituted "another reason" why the cancellation decision should be revoked.

Consequently, the Tribunal set aside the delegate's decision and substituted it with a decision to revoke the mandatory 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

The issues for determination by this Tribunal are:(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).THE HEARING AND THE EVIDENCE This application was heard on 9 December 2021 and 10 December 2021 at the Tribunal Registry in Perth. The hearing took place in person, except for Mr O’Donoghue of counsel who represented the Applicant pro-bono and appeared via Microsoft Teams from Melbourne. I extend my sincere thanks to Mr O’Donoghue for appearing pro-bono for the Applicant. The Respondent was represented by Mr Beetham of counsel, instructed by Mr Shinnick. The Applicant gave oral evidence at the hearing and was cross-examined. No other witnesses were called. The Applicant sought to call his niece, FH as a witness, however, despite repeated attempts from my Associate, and from Mr O’Donoghue, she was unable to be contacted. The Tribunal admitted the following documents into evidence at the hearing: (a)Applicant’s typed statement (undated) filed on 1 December 2021 (Exhibit A1); (b)Email from the Applicant dated 30 November 2021 containing a statement signed “[FH]” (Exhibit A2); (c)Letter from Bradley Bayly Legal dated 26 November 2021 (Exhibit A3); (d)Applicant’s statement (undated) filed on 2 December 2021 (Exhibit A4); (e)Handwritten statement from the Applicant filed on 6 December 2021 (Exhibit A5);(f)s 501 G-Documents, labelled G1 to G53, comprising pages 1 to 336 (Exhibit R1); and(g)Supplementary Documents, labelled S1 to S26, consisting of pages 1 to 268 (Exhibit R2). The following written submissions were filed by the parties: (a)Respondent’s Statement of Facts, Issues and Contentions, dated 12 November 2021; (b)Applicant’s Statement of Facts, Issues and Contentions, dated 1 December 2021 (ASFIC); and(c)Respondent’s Reply Submissions dated 7 December 2021. LEGISLATIVE FRAMEWORK Migration Act Section 501(3A) of the Migration Act provides that:(3A)The Minister must cancel a visa that has been granted to a person if:(a)the Minister is satisfied that the person does not pass the character test because of the operation of:(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or(ii) paragraph (6)(e) (sexually based offences involving a child); and(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. Section 501(6)(a) of the Migration Act provides that:(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(Original emphasis.) A “substantial criminal record” is defined by s 501(7)(c) of the Migration Act as follows:(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(Original emphasis.)

Decision

Reasons for decision

After considering the Applicant’s representations, on 7 October 2021, a delegate of the Minister decided not to revoke the Cancellation Decision under s 501CA(4) of the Migration Act (G3/8–10). This is the Reviewable Decision currently before this Tribunal. The Applicant was notified of the Reviewable Decision in a letter dated 7 October 2021 which was delivered to him by hand on 11 October 2021 (G3/8–10). On 13 October 2021, the Applicant lodged an application in the General Division of the Tribunal seeking a review of the Reviewable Decision (G2/3–7). Therefore, the Applicant filed his application for review within the nine-day period prescribed by s 500(6B) of the Migration Act. Section 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the day on which an applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the 84-day period started running from 11 October 2021, meaning that I must hand down a decision on or before 3 January 2022. ISSUES The issues for determination by this Tribunal are:(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).THE HEARING AND THE EVIDENCE This application was heard on 9 December 2021 and 10 December 2021 at the Tribunal Registry in Perth. The hearing took place in person, except for Mr O’Donoghue of counsel who represented the Applicant pro-bono and appeared via Microsoft Teams from Melbourne. I extend my sincere thanks to Mr O’Donoghue for appearing pro-bono for the Applicant. The Respondent was represented by Mr Beetham of counsel, instructed by Mr Shinnick. The Applicant gave oral evidence at the hearing and was cross-examined. No other witnesses were called. The Applicant sought to call his niece, FH as a witness, however, despite repeated attempts from my Associate, and from Mr O’Donoghue, she was unable to be contacted. The Tribunal admitted the following documents into evidence at the hearing: (a)Applicant’s typed statement (undated) filed on 1 December 2021 (Exhibit A1); (b)Email from the Applicant dated 30 November 2021 containing a statement signed “[FH]” (Exhibit A2); (c)Letter from Bradley Bayly Legal dated 26 November 2021 (Exhibit A3); (d)Applicant’s statement (undated) filed on 2 December 2021 (Exhibit A4); (e)Handwritten statement from the Applicant filed on 6 December 2021 (Exhibit A5);(f)s 501 G-Documents, labelled G1 to G53, comprising pages 1 to 336 (Exhibit R1); and(g)Supplementary Documents, labelled S1 to S26, consisting of pages 1 to 268 (Exhibit R2). The following written submissions were filed by the parties: (a)Respondent’s Statement of Facts, Issues and Contentions, dated 12 November 2021; (b)Applicant’s Statement of Facts, Issues and Contentions, dated 1 December 2021 (ASFIC); and(c)Respondent’s Reply Submissions dated 7 December 2021. LEGISLATIVE FRAMEWORK Migration Act

Ratio Decidendi

Legal Principle Established

On 9 January 2020, the Applicant’s Visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) (G35/259-265) (Cancellation Decision). The basis of the Cancellation Decision was that the Applicant did not pass the character test because he had a substantial criminal record and was currently serving a full-time sentence of imprisonment for an offence against a law of the Commonwealth, a State or a Territory. The notice of the Cancellation Decision advised the Applicant that he could make representations to seek revocation of the Cancellation Decision. On 29 January 2020, the Applicant requested revocation of the Cancellation Decision and made representations and submitted evidence in support of his revocation request (G21-G52). After considering the Applicant’s representations, on 7 October 2021, a delegate of the Minister decided not to revoke the Cancellation Decision under s 501CA(4) of the Migration Act (G3/8–10). This is the Reviewable Decision currently before this Tribunal. The Applicant was notified of the Reviewable Decision in a letter dated 7 October 2021 which was delivered to him by hand on 11 October 2021 (G3/8–10). On 13 October 2021, the Applicant lodged an application in the General Division of the Tribunal seeking a review of the Reviewable Decision (G2/3–7). Therefore, the Applicant filed his application for review within the nine-day period prescribed by s 500(6B) of the Migration Act. Section 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the day on which an applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the 84-day period started running from 11 October 2021, meaning that I must hand down a decision on or before 3 January 2022. ISSUES The issues for determination by this Tribunal are:(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).THE HEARING AND THE EVIDENCE This application was heard on 9 December 2021 and 10 December 2021 at the Tribunal Registry in Perth. The hearing took place in person, except for Mr O’Donoghue of counsel who represented the Applicant pro-bono and appeared via Microsoft Teams from Melbourne. I extend my sincere thanks to Mr O’Donoghue for appearing pro-bono for the Applicant. The Respondent was represented by Mr Beetham of counsel, instructed by Mr Shinnick. The Applicant gave oral evidence at the hearing and was cross-examined. No other witnesses were called. The Applicant sought to call his niece, FH as a witness, however, despite repeated attempts from my Associate, and from Mr O’Donoghue, she was unable to be contacted. The Tribunal admitted the following documents into evidence at the hearing: (a)Applicant’s typed statement (undated) filed on 1 December 2021 (Exhibit A1); (b)Email from the Applicant dated 30 November 2021 containing a statement signed “[FH]” (Exhibit A2); (c)Letter from Bradley Bayly Legal dated 26 November 2021 (Exhibit A3); (d)Applicant’s statement (undated) filed on 2 December 2021 (Exhibit A4); (e)Handwritten statement from the Applicant filed on 6 December 2021 (Exhibit A5);(f)s 501 G-Documents, labelled G1 to G53, comprising pages 1 to 336 (Exhibit R1); and(g)Supplementary Documents, labelled S1 to S26, consisting of pages 1 to 268 (Exhibit R2).