YBVL and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2022] AATA 4741

YBVL and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4741 (21 December 2022)

Division:GENERAL DIVISION

File Number:               2022/8048

Re:YBVL  

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member Theodore Tavoularis

Date of Decision:               21 December 2022

Date of Written Reasons:      25 January 2023

Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 27 September 2022 that the mandatory cancellation of the Applicant's visa not be revoked is set aside; and in substitution, the cancellation of the Applicant's Class XA Subclass 866 Protection Visa is revoked under s 501CA(4) of the Act.

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

Senior Member Theodore Tavoularis

Catchwords

MIGRATION – Non-revocation of mandatory cancellation of a Class XA Subclass 866 Protection Visa – Short form decision published with written reasons to follow – Application of Pearson v the Minister for Home Affairs [2022] FCAFC 203 – Decision set-aside

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth)

Cases

Pearson v the Minister for Home Affairs [2022] FCAFC 203

Khalil v Minister for Home Affairs (2019) 271 FCR 326

Secondary Materials

Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021)

REASONS FOR DECISION

Senior Member Theodore Tavoularis

25 January 2023

Background

1. YBVL (the Applicant) is a national of Iran who was born in 1991. The Applicant has resided in Australia for 11 years, having arrived as an adult aged 19 years. Since 2012, the Applicant has held a Class XA Subclass 866 protection visa (the ‘Visa’).

2. On 6 July 2021, the Applicant had his Visa mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) by a delegate of the Respondent Minister[1] (the ‘mandatory cancellation decision’).

   [1] At the time of the decision the relevant Minister was the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

3. On 9 December 2021, the Applicant made representations seeking revocation of the mandatory cancellation decision within the prescribed timeframe as required by s 501CA(4)(a) of the Act.[2]

   [2] The invitation given under s 501CA(3)(b) of the Act had to be reissued as it did not comply with the requirements of the Act as identified in EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173 and Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174.

4. On 27 September 2022, a delegate of the Respondent Minister refused to revoke the earlier mandatory cancellation decision pursuant to s 501CA(4) of the Act (the non-revocation decision’).

5. On 28 September 2022, the Applicant applied to this Tribunal for review of the above

   
   

   non-revocation decision (the ‘Decision Under Review’). Section 501CA(4) of the Act relevantly outlines the two issues before the Tribunal in considering whether to revoke the mandatory cancellation of the Applicant’s Visa were:

   (a)whether the Applicant passes the character test;[3] and

   (b)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.[4]

   [3] Section 501CA(4)((b)(i).

   [4] Section 501CA(4)((b)(ii).

6. A case management telephone directions hearing was held on 13 October 2022 where procedural Directions were made for the conduct of the matter. The Hearing proceeded before me in-person at the Sydney Registry on 14 and 15 December 2022.

7. As the Applicant was notified of the non-revocation decision while within the Migration Zone, the Act requires the Tribunal to reach a decision in this matter 84 days after the Applicant was so notified, pursuant to s 501(6L) of the Act. In this matter, the 84^th day was 21 December 2022.

8. On 21 December 2022, I caused this Tribunal to meet its statutory obligation in terms of making a decision on the application before me. That Decision was made in short-form and was duly published to the parties on that day. A true and correct copy of that short-form Decision is attached to these reasons and is marked ‘Annexure A’.

9. In accordance with the principles outlined by the Full Federal Court in Khalil v Minister for Home Affairs [2019] FCAFC 151 (“Khalil”), the Tribunal now publishes the written Reasons to the parties. In Khalil, the Full Federal Court said:

   “41. The AAT Act thus draws a clear distinction between the decision of the Tribunal under s 43 which is, relevantly, what causes the 84 day period to stop running, and the reasons for decision. In BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 the Tribunal had handed down a decision on a review of a decision of the Australian Securities Commission that was before it, confirming an exemption that the Commission had granted on certain conditions, but substituting different conditions. At the time of announcing the decision the Tribunal did not give any reasons. It delivered written reasons some 14 days later. Beaumont J held (at 271-273, Lockhart and Hill JJ agreeing at 253) that the Tribunal's omission to provide reasons at the time of announcing its decision was not an error, as on the proper construction of s 43(2) of the AAT Act, the Tribunal was only required it to give its reasons, oral or in writing, within a reasonable time of the decision.

   …

   48. What the Tribunal had to do here within the 84 days was to deliver a decision, not necessarily express reasons…”

   [My underlining]

   The Full Court’s Decsion in Pearson

10. On 22 December 2022, the Full Court of the Federal Court of Australia handed down its decision in Pearson v the Minister for Home Affairs [2022] FCAFC 203 (‘Pearson’). This was the day after which a short-form decision had been made in relation to this matter.

11. In Pearson, the Full Court found that for s 501(7)(c) of the Act to have application, the custodial term of 12 months or more must derive from a single offence. The Full Court’s reasoning was based on its apprehension that Parliament’s intention was that mandatory cancellation of a person’s visa should only apply where a person has been sentenced to a custodial term of 12 months or more for a serious offence rather than an aggregation of a number of offences.[5]

    [5] Pearson v the Minister for Home Affairs [2022] FCAFC 203, [42] and [43].

12. The Full Court in Pearson interpreted s 501(7)(c) of the Act to be read on the basis that a person has been ‘…sentenced [for an offence] to a term of imprisonment of 12 months or more.’[6] The Full Court said, at [47]:

    “Had Parliament intended that an aggregate sentence of 12 months or more should be subject to mandatory cancellation of a person’s visa, it would have been a straightforward matter to say so. That it did not do so is consistent with the apparent purpose of s 501(3A), namely that only the most serious offending subjects a person to mandatory cancellation of a visa. Self-evidently, an aggregate sentence may be arrived at after conviction of a series of lesser offences, none of which on their own could render a person liable to have his or her visa mandatorily cancelled.”

    [6] Pearson v the Minister for Home Affairs [2022] FCAFC 203 [48].

    Application of Pearson to YBVL

13. In this matter, the Applicant’s Visa was mandatorily cancelled on the basis that he did not pass the character test as he was found to be a person with a “substantial criminal record”.[7] Pursuant to s501(7)(c) of the Act which relevantly defines that term as “the person having been sentenced to a term of imprisonment of 12 months or more”.

    [7] Section 501(6) of the Act.

14. On 25 June 2021, the Applicant was sentenced to an aggregate sentence of imprisonment for a period of 16 months having been convicted of the following offences:

    ·Destroy/damage property in company less than $2,000;

    ·Aggravated breaking and entering dwelling etc in company steal less than $60,000; and

    ·Assault occasioning actual bodily harm.[8]

    [8] G-Documents, G2, page 2.

15. Prior to the sentencing event on 25 June 2021, the Applicant had been sentenced to periods of imprisonment on a number of occasions. However, none of these custodial terms were for a period of 12 months or more. Also of note is that none of these previous convictions could otherwise meet the relevant sections of the character test pursuant to section 501(3A)(a) of the Act.[9]

    [9] Those being paragraph s 501(6)(a) (substantial criminal record) on the basis of s 501(7)(a) or (b), or s 501(6)(e) (sexually based offences involving a child).

16. The decision of Pearson is thus applicable to the circumstances of the instant application on the basis that (1) the decision to mandatorily cancel the Applicant’s Visa was invalid as it relied upon an aggregate sentence for the purpose of substantial criminal record; and (2) no other periods of imprisonment were for a period of 12 months or more.

17. The Orders dated 24 January 2023 in Pearson confirm that the non-revocation decision would have been fatally tainted by that invalidity and is otherwise of no legal force and effect:

    “4. Declare that the Cancellation Decision, the Non-Revocation Decision and the Tribunal Decision are affected by jurisdictional error and invalid by reason of the fact that the relevant decision-makers erred in being satisfied that the Applicant’s aggregate sentence of imprisonment imposed by the District Court of New South Wales on 28 February 2019 resulted in her having a substantial criminal record for the purposes of s 501(6)(a) of the Act by reason of s 501(7)(c) of the Act.”

18. It cannot therefore be safely found that the Applicant’s visa was the subject of a valid mandatory cancellation pursuant to s 501(3A) of the Act.

19. The unique circumstances in this matter, and in particular the issuing of these reasons, has resulted from the timeline that occurred since the issuing of the short-form decision in the instant matter. Had the Tribunal not been required to make a decision in the timeframe it did to meet its obligations under s 500(6L) of the Act, then at the time Pearson was handed down this application would have been reserved and submissions could have been sought from the parties as to its application.

20. In all likelihood, submissions received would have been for the Tribunal to proceed to dismiss the application pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) on the basis it did not have jurisdiction to continue entertaining the decision of the Respondent’s delegate made on 27 September 2022.

21. The Tribunal however has issued a Decision in this matter on 21 December 2022 and indicated that written reasons would follow.

22. Having considered all of the oral and documentary evidence in this matter, I had proceeded to set-aside and substitute the Decision Under Review on the basis that there was another reason why the mandatory cancellation should have been revoked, as required by s 501CA(4)(b)(ii) of the Act.

23. In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal was bound by s 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction’ or ‘Direction 90’) has application. A holistic application of Ministerial Direction 90 had resulted in finding in favour of revocation of the mandatory cancellation decision.

24. At the time of issuing the short-form decision there was no contention that the Applicant did not pass the character test. The Tribunal now acknowledges that the subsequent Full Court’s decision of Pearson indicates that the Applicant would not have failed the character test for having a substantial criminal record for the purposes of s 501(6)(a) of the Act by reason of s 501(7)(c) of the Act. Had the Decision Under Review not been jurisdictionally affected, as Pearson indicates that it is, then the mandatory cancellation decision could have been set-aside pursuant to s 501CA(4)(b)(i) of the Act.

25. In these very nuanced circumstances where a Decision has been made in a matter which the Full Court has subsequently identified as being jurisdictionally affected, I am satisfied that it is not necessary for these Reasons to undertake the usual fulsome application of Ministerial Direction 90.[10]

    [10] I also note that this is aligned with the Tribunal’s objectives under section 2A of the Administrative Appeals Tribunal Act 1975 (Cth).

    Decision

26. I therefore find it remains appropriate to reiterate the wording from the short-form Decision dated 21 December 2022 in this matter:

    Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 27 September 2022 that the mandatory cancellation of the Applicant's visa not be revoked is set aside; and in substitution, the cancellation of the Applicant's Class XA Subclass 866 Protection Visa is revoked under s 501CA(4) of the Act.

I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

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Associate

Dated: 25 January 2023

Dates of hearing:	14 & 15 December 2022
Solicitors for the Applicant:	Ms Stephanie Blaker (Legal Aid NSW)
Solicitors for the Respondent:	Ms Emma Letcher-Boldt (Clayton Utz Lawyers)

ANNEXURE A

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2022/8048
General Division	)

Re: YBVL

Applicant

And: Minister for Immigration, Citizenship and Multicultural Affairs

Respondent

DECISION

TRIBUNAL:              Senior Member Theodore Tavoularis

DATE:   21 December 2022

PLACE:                    Sydney

DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 27 September 2022 that the mandatory cancellation of the Applicant’s visa not be revoked is set aside; and in substitution, the cancellation of the Applicant’s Class XA Subclass 866 Protection Visa is revoked under s 501CA(4) of the Act.

The Tribunal will give written reasons for this decision within a reasonable time of the decision.

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

Senior Member Theodore Tavoularis