YKZZ v Minister for Immigration and Border Protection

[2018] AATA 970

YKZZ and Minister for Immigration and Border Protection (Migration) [2018] AATA 970 (23 April 2018)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2017/3248
GENERAL DIVISION  )

Re: YKZZ
Applicant

And: Minister for Immigration and Border Protection
Respondent

DIRECTION

TRIBUNAL:              Senior Member M J McGrowdie

DATE OF CORIGENDUM:      1 August 2018

PLACE:                    Sydney

IT IS DIRECTED, in accordance with subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), that the text of the decision in this application is to be altered to correct clerical error, such that the reference to:

1. “cl 9.1(1)” in line 2 of paragraph [30] is amended to read “cl 13.1(1)”.

2. “cl 9.1(2)” in line 4 of paragraph [30] is amended to read “cl 13.1(2)”.

3. “cl 9.1.1(e)” in line 2 of paragraph [31] is amended to read “cl 13.1.1(1) c)”.

4. “cl 9.1.1(f)” in line 2 and continuing on line 3 or paragraph [31] is amended to read “cl 13.1.1(1) d)”.

5. “cl 9.1.2(1)” in line 3 of [36] in amended to read “cl 13.1.2(1)”.

6. “cl 9.1.2(2)(b) in line 12 of paragraph [37] is amended to read “cl 13.1.2(2)”.

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

Senior Member M J McGrowdie

Division:GENERAL DIVISION

File Number(s):      2017/3248

Re:YKZZ

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member M J McGrowdie

Date:23 April 2018

Place:Sydney

The delegate’s decision of 18 October 2016, which is under review, is affirmed.

...........................[sgd].............................................

Senior Member M J McGrowdie

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – visa cancellation – failure to pass character test – substantial criminal record – whether discretion be exercised to revoke the mandatory cancellation of the applicant's visa – Ministerial Direction no 65 applied – protection of the Australian community – seriousness and nature of the relevant conduct – the risk that conduct may be repeated – expectations of Australian community – impact on victims of applicant’s criminal conduct – impact on applicant’s family

LEGISLATION

Migration Act 1958 (Cth), ss 4(1), 499(1), 501

SECONDARY MATERIALS

Minister for Immigration and Border Protection (Cth), Direction [No 65] – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under section 501CA, 22 December 2014

REASONS FOR DECISION

Senior Member M J McGrowdie

23 April 2018

INTRODUCTION

1. The applicant was born in Iran in 1977.  He came to Australia in 2006 aged 29 years.

2. The applicant’s permanent spouse visa was cancelled in May 2016 as a result of periods of imprisonment by way of sentences being imposed on the applicant.

3. A decision by a delegate of the respondent not to revoke the mandatory cancellation in the exercise of discretion was made in October 2016.

4. The issue is whether the mandatory cancellation of the applicant’s visa should remain.  That is, whether discretion should be exercised in the applicant’s favour notwithstanding the fact that the applicant fails to meet the character test under the Migration Act 1958 (Cth) because of his criminal record.

5. Discretion may be exercised to not cancel the applicant’s visa and that discretion is to be exercised in accordance with Direction 65 made under s 499 of the Act.

6. The applicant, a former builder and welder, had been living in Australia with his wife and their daughter who is now 10 years old. The applicant’s wife had separated from the applicant before the applicant was taken into detention.

7. His criminal record is substantial.

8. At a sentencing hearing on 13 March 2015, the applicant was sentenced to gaol for causing a fire in his unit on 9 December 2011 whilst attempting to manufacture drugs, namely crystalline methamphetamines (ice).  His wife and daughter were in the unit at the time of the fire.  The drugs were intended for the applicant’s own use.  He was sentenced to a term of imprisonment of four-and-a-half years with a non-parole period of  two-and-a-half years.

9. The sentencing remarks of Conlon DCJ indicate that the applicant first started using drugs in 2010 whilst working as a contractor in Queensland and he found that he was able to work longer hours.  His drug use, however, escalated and his business suffered and closed down.

10. Following this offence, the applicant entered a drug detox unit for ten days and then remained drug free for about five months.  His marriage fell apart at about that time.  He remained at large for a period until November 2013 when the applicant was taken into custody for other offences.  The applicant was provided with drug assistance programmes to assist with his rehabilitation. 

11. At the time of sentencing in March 2015, two other related charges were dealt with. These charges were included in the term of imprisonment referred to above.

12. The applicant was also before the Court on 29 November 2016.  This related to events on 19 November 2013 when the applicant was found to be pushing a shopping trolley along the street which contained chemicals suitable for use in the manufacturing of methamphetamines. He also had a small quantity of pseudoephedrine in his possession. Police then attended the applicant’s residence, a granny flat, and found equipment for the making of drugs for his own use.  At the time, the applicant was on bail for earlier offences.

13. In the sentencing remarks of Pickering SC, DCJ, the applicant’s then current offences were reflective of a downward spiral in his life where he was in the grips of an addiction.  The applicant was sentenced to three years imprisonment from 19 March 2015 to March 2018 with a release on parole of 18 March 2017.  His Honour considered it likely that the applicant would be taken into immigration detention from 18 March 2017.

14. In addition, there is a record of other offences.  On 5 September 2013 the applicant was given a bond for assaulting a police officer and resisting a police officer on 7 September 2012.  Also, on 5 September 2013, the applicant was dealt with by way of a bond for resisting a police officer on 24 January 2013 upon suspicion of having stolen goods.

15. On 9 January 2014 the applicant was dealt with for having suspected stolen goods and driving under the influence of drugs on 29 April 2013.

16. On 25 January 2013, the applicant was given a 12 months bond for stalking/intimidation on 6 November 2012.

17. To my mind, and whilst acknowledging that the offences related to the applicant’s own drug taking, there is significant offending and re-offending.

18. On the positive side, the applicant has undertaken drug rehabilitation.  He maintains a relationship with his father-in-law and brother-in-law.  He does not really have access to his daughter which he feels very sad about and he is hopeful that he will be able to reconnect with her.

19. The applicant was in prison for quite a period of time to March 2017 when he was released on parole and transferred to Villawood Immigration Detention Centre.

20. A prison term of 12 months or more leads to mandatory cancellation (Migration Act 1958 (Cth), s 501(3A)). Pursuant to s 501, discretion may be exercised to revoke the mandatory cancellation of a visa. The discretion is to be exercised in accordance with Direction 65.

21. It is Part C of Direction 65 which is applicable in this case.

22. Part C requires a decision-maker to have regard to three primary considerations as well as other considerations.

23. The primary considerations are:-

    (a)Protection of the Australian community from criminal or other serious conduct;

    (b)The best interests of minor children in Australia; and

    (c)The expectations of the Australian community (Part C, cl 13(2)).

24. I will come to the other considerations later.

25. All parts of Direction 65 are to be considered in light of the objectives of the legislation.  Clause 6.2 contains general guidance and speaks to the protection of the Australian community.  Principles are spelt out in cl 6.3.  Generally, these refer to Australia having a sovereign right to determine whether non-citizens of character concern should be allowed to remain in Australia.

26. Further described is the principle that being able to remain in Australia is a privilege conferred in the expectations that Australian laws will be obeyed.

27. Clause 8.4 provides that primary considerations should generally be given greater weight than the other considerations.

28. There is no question here that the applicant does not pass the character test referred to in s 501. Notwithstanding this, Direction 65 allows for the non-revocation of the applicant’s visa in light of the considerations contained in Direction 65.

29. I turn now to the considerations under Direction 65.

    PRIMARY CONSIDERATIONS

    (a) Protection of the Australian community from criminal or other serious conduct

30. Australia is committed to protecting the Australian community from harm as a result of criminal activity (cl 9.1(1)).  It is necessary to give consideration to the nature and seriousness of a non-citizen’s conduct and to the risk to the Australian community should the non-citizen commit further offences (cl 9.1(2)).

31. In assessing the nature and seriousness of the conduct, one is to look at, amongst other things, the sentence imposed by the courts (cl 9.1.1(e)) and the frequency of offending (cl 9.1.1(f)).

32. Here, the sentences imposed were for substantial gaol terms on two occasions.  I would regard the applicant’s conduct as being serous in terms of offending. The first major offence involving the fire on 9 December 2011 when the applicant’s wife and child were in the premises was a serious matter.  Notwithstanding that offence, the applicant was found again to have a clandestine laboratory for making drugs in November 2013. He also breached bail conditions following the December 2011 offence.

33. This is not a case where there has been a sole offence.  There are, in addition to the fire and later laboratory offences, other offences to which I have referred.

34. It is true that the applicant says he had become dependent on drugs and that he has undertaken rehabilitation. However, the gravity of the offences cannot be ignored.

35. The applicant has not been in the community at large since around March 2015.  His second prison sentence – as a result of being found of having a crude laboratory for making drugs – occurred after the earlier conviction for starting a fire associated with his earlier drug-making laboratory in a residential unit.  For a second time, the applicant put people at risk.  The applicant did not learn from the fire incident despite undergoing some rehabilitation.

36. In considering whether the person represents an unacceptable risk, regard is to be had to the principle that the Australian community tolerance for any risk of further harm becomes lower as the seriousness of the potential harm increases (cl 9.1.2(1)).

37. Regard is to be had to (a) the nature of the harm and (b) the likelihood of the non-citizen engaging in further criminal or other serious conduct (cl 9.1.2(2)(b)).

38. What is relevant here is the information and evidence of the risk and evidence of rehabilitation.

39. In the present matter, the applicant has had a long period of offending and has put others in danger.  His conduct has offended community standards by his drug-taking despite coming before the courts.  Even after causing a fire and being charged, his offending persisted and this was so despite undertaking rehabilitation programs.

40. The Australian community can be said to tolerate some risk.  Here, however, the applicant continued to re-offend after coming to the attention of authorities.  He has participated in rehabilitation programmes and has engaged in the “Getting Smart Programme” while in prison. The applicant has engaged in other programmes in prison and whilst in detention.

41. In my view, given that the applicant has been in custody or detention for some time, there is a risk that the applicant could revert to old patterns and that this is a risk which must be taken into consideration.  I say this knowing that the applicant believes that he has put all of that behind him.  He has a collection of favourable references which I have considered.

42. In summary though, I regard this first primary consideration to weigh strongly against the applicant.

43. I now come to the next primary consideration.

    (b) The best interests of minor children in Australia

44. The evidence in relation to the applicant’s 10-year-old daughter is scant.  It appears that the applicant’s wife has severed contact.  The applicant has the hope of re-establishing a relationship with his daughter and remains in contact with his father-in-law.

45. From a social perspective and possibly in the child’s interests, it is important that the applicant wishes to connect with his daughter.  However, given that there is little evidence to go on, one is left with the notion that the child should have the opportunity to connect with her father.  This consideration is in the applicant’s favour but its weight is tempered by the little information regarding the child.

46. I now turn to the final primary consideration.

    (c) The expectations of the Australian community

47. The applicant has certainly offended community standards.  The Australian community expects non-citizens to obey Australian laws while in Australia.

48. It is provided in cl 13.3(1) that:

    Non-revocation (of a cancellation) may be appropriate simply because of the nature of the character concerns or offences are such that the Australian community would expect that that person should not hold a visa.

49. In my view, the Australian community would expect that a revocation of the mandatory cancellation of the applicant’s visa would not occur given his repeated offending.  There was not a “one-off” event but rather repeated offending even where it would have been known to the applicant at a much earlier time that he had the opportunity of “mending his ways”.

50. I conclude that this consideration weighs against the applicant.

    OTHER CONSIDERATIONS

51. The “other considerations” are (cl 14.1):-

    (a)International non-refoulement obligations;

    (b)Strength, nature and duration of ties;

    (c)Impact on Australian business interests;

    (d)Impact on victims; and

    (e)Extent of impediments if removed.

    (a)       International non-refoulement obligations

52. The applicant is a member of the Baha’i faith and fears persecution if returned to Iran.  Whilst this may be accepted, there are other avenues available to the applicant including Ministerial discretion.

53. Whilst living in Iran the applicant had employment and was able to engage in the community.

54. Whilst this consideration is, on balance, in the applicant’s favour, it must be weighed against the primary considerations and be balanced with the other considerations.

    (b)      Strength, nature and duration of ties

55. The applicant had good work available to him in Australia but unfortunately his work evaporated with his drug use.  The drug use started in 2010, very shortly after being granted a Permanent Spouse Visa in 2009.  From 2001 to November 2013 he had committed various offences.  He has not been at liberty since around March 2015.

56. The applicant has not had an easy situation in Australia and did not establish a pattern over a period of time of being a law abiding person and a socialised member of the Australian community.

57. The applicant does have contact with his father-in-law and brother-in-law, as well as other persons as the references suggest.  Also, he has a daughter in Australia.

58. It can be said that the applicant has ties with persons in Australia but does not appear to have or have had strong ties with the Australian community in a wider sense.

59. This consideration is probably not one that weighs strongly in the applicant’s favour.

    (c)       Impact on Australian business interests

60. The applicant has not been in employment for some time.  His contract business collapsed. There is no indication that Australian interests are affected.  A former employee of the applicant has indicated by letter that he would benefit from re-engaging the applicant.  Beyond this information, there is no indication that non-revocation would “significantly compromise the delivery of a major project, or delivery of an important service in Australia” (cl 14.3(1)).

    (d)      Impact on victims

61. There has been no evidence as to the impact on victims.  The applicant did not engage in acts of violence. Rather, he placed persons at risk from incurring injuries from a fire.  However, there was no evidence of any actual injury.  It is to be remembered that his wife and daughter were inside the unit when a fire started from the applicant’s drug-making laboratory.  The only thing that is known is that the applicant’s wife has kept herself and daughter away from the applicant.

    (e)       Extent of impediments if removed

62. The applicant appears to be in good physical health. The applicant has family in Iran.  He is of a faith that is not well tolerated in Iran. However, as far as general living standards are concerned, whilst perhaps not as high as in Australia, there is nothing to suggest that the applicant would be disadvantaged. The applicant has previously had employment in Iran.

    CONCLUSION

63. Weighing all the various considerations together and noting that the primary considerations are generally to be given greater weight than the other considerations, I conclude that the discretion be exercised so as to not revoke the mandatory cancellation of the applicant’s visa.

64. Accordingly, the decision under review is affirmed.

I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member M J McGrowdie

...................................[sgd].....................................

Associate

Dated: 23 April 2018

Date(s) of hearing:	28 November 2017
Counsel for the Applicant:	Ms E Bathurst
Solicitors for the Applicant:	Ms A Battisson, Human Rights for All
Solicitors for the Respondent:	Ms L Crick, Clayton Utz