YZXB and Minister for Home Affairs (Migration)

Case [2019] AATA 69

YZXB and Minister for Home Affairs (Migration) [2019] AATA 69 (25 January 2019)

Division:GENERAL DIVISION

File Number(s):      2018/6564

Re:YZXB  

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member M Griffin QC

Date:25 January 2019

Place:Sydney

The delegate’s reviewable decision of 31 October 2018 is set aside and, in substitution, the 19 January 2016 decision to cancel the Applicant’s Class XB Subclass 202 Global Special Humanitarian visa is revoked.

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

Senior Member M Griffin QC

CATCHWORDS

MIGRATION – Class XB Subclass 202 Global Special Humanitarian visa – mandatory cancellation – failure to pass the character test – Ministerial Direction No 65 – serious criminal conviction – risk to the Australian community – risk of reoffending – minimal risk – best interests of minor children – strength nature and duration of ties – impediment if removed – Iraq – non-refoulement obligations – decision set aside 

LEGISLATION

Migration Act 1958 (Cth) ss 499, 501, 501CA

CASES

Aciek and Minister for Home Affairs [2018] AATA 2755
Ali v Minister for Immigration and Border Protection [2018] FCA 650
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
BKS18 v Minister for Home Affairs [2018] FCA 1731
DOB18 v Minister for Home Affairs [2018] FCA 1523
Greene v Assistant Minister for Home Affairs [2018] FCA 919
Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
Sowa v Minister for Home Affairs [2018] FCA 1999
Turay v Assistant Minister for Home Affairs [2018] FCA 1487
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Uelese v Minister for Immigration [2016] FCA 348l 248 FCR 296

SECONDARY MATERIALS

Minister for Immigration and Border Protection, Direction No. 65 – Visa Refusal and Cancellation under section 501 and Revocation of a Mandatory Cancellation of a Visa under section 501CA, paras 6.3, 13.1.1, 13.1.2, 14.5

REASONS FOR DECISION

Senior Member M Griffin QC

25 January 2019

DECISION

  1. By an application made on 9 November 2018, the Applicant seeks review of a decision of a delegate of the Respondent (the Minister) dated 31 October 2018 not to revoke, under subsection 501CA(4) of the Migration Act 1958 (Cth) (the Act), a decision under subsection 501(3A) of the Act to cancel the Applicant’s Class XB Subclass 202 Global Special Humanitarian visa (the visa).

  2. The application for review is made in accordance with paragraph 500(1)(ba) of the Act, which allows applications to be made to the Administrative Appeals Tribunal (the Tribunal) for review of decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.

  3. The issues before the Tribunal are whether the Applicant meets the character test as defined in subsection 501(6) of the Act and, if he does not, whether there is another reason why the mandatory cancellation of the visa should be revoked (subparagraph 501CA(4)(b)(ii)).

  4. The Minister contends that the Applicant does not meet the character test, and that the correct and preferable decision is not to revoke the mandatory cancellation…

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AGLC
YZXB and Minister for Home Affairs (Migration) [2019] AATA 69
Case
[2019] AATA 69
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a decision by the Minister for Home Affairs not to revoke the mandatory cancellation of the Applicant's Global Special Humanitarian visa. The Applicant, a citizen of Iraq, arrived in Australia at age 14 and subsequently received a visa. However, the Applicant was convicted of aggravated sexual assault in company and sentenced to three years imprisonment with a non-parole period of 18 months, meaning he did not pass the character test under section 501 of the Migration Act 1958. The Minister's delegate decided not to revoke the cancellation, and the Applicant sought review by the Tribunal.

The Tribunal was required to determine whether the Applicant passed the character test and, if not, whether there was another reason why the cancellation decision should be revoked. In making this determination, the Tribunal was bound to consider Ministerial Direction No. 65, which mandates that primary considerations include the protection of the Australian community, the best interests of minor children, and the expectations of the Australian community. Other relevant considerations included international non-refoulement obligations, the strength, nature, and duration of ties to Australia, and the extent of impediments if removed from Australia.

The Tribunal found that the Applicant did not pass the character test due to his serious criminal conviction. While the Applicant disputed his involvement in the offence, the Tribunal accepted the evidence of a psychologist that the Applicant had demonstrated some remorse, albeit largely self-referenced. The Tribunal considered the Applicant's ties to Australia, noting he had lived there for 10 years and had family support, but found these ties carried limited weight as he had not undertaken caring or financial responsibilities. The Tribunal also considered the risk of harm in Iraq and impediments to re-establishment, but concluded these did not carry significant weight. Crucially, the Tribunal assessed the risk of the Applicant reoffending as minimal, finding this to be the most important consideration.

Ultimately, the Tribunal determined that the primary consideration of protecting the Australian community weighed in the Applicant's favour due to the minimal risk of reoffending. Consequently, the Tribunal quashed the decision under review and reinstated the Applicant's visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Minister contends that the Applicant does not meet the character test, and that the correct and preferable decision is not to revoke the mandatory cancellation of the Applicant’s visa.FACTSBackground The Applicant is a citizen of Iraq and is 25 years old. He arrived in Australia on 18 September 2008, at age 14 years, as the holder of a Class XB Subclass 202 Global Special Humanitarian visa. The Applicant produced a table detailing relevant chronological facts. The table is reproduced below. The facts are not contentious. The Applicant’s National Police Certificate dated 3 February 2016 reveals that on 23 October 2015, the Applicant was convicted of Aggravated sexual assault in company with other person and sentenced to imprisonment for three years with a non-parole period of 18 months.Procedural history On 19 January 2016, the Minister’s Department notified the Applicant that his visa had been cancelled pursuant to subsection 501(3A) of the Act (the cancellation decision). On 11 February 2016, the Applicant submitted a request for revocation of the cancellation decision and supporting documentation. On 7 June 2016, the Department wrote to the Applicant inviting his comments on additional information. The Applicant responded by way of submissions and further documentation. On 31 October 2018, a delegate of the Minister decided not to revoke the cancellation decision under subsection 501CA(4) of the Act. The Applicant was notified of the cancellation decision, through his legal representatives, on 5 November 2018. On 9 November 2018, the Applicant applied to the Tribunal for review of the delegate’s decision.ISSUES The issue for the Tribunal to consider is whether it should exercise the power in subsection 501CA(4) in favour of revoking the mandatory cancellation of the Applicant’s visa. In addressing this issue, the Tribunal must determine:(a)whether the Applicant passes the character test (as defined in section 501); and(b)if he does not, whether the Tribunal is satisfied that there is another reason why the cancellation decision should be revoked.EVIDENCE AND DISCUSSION The Applicant gave evidence. Much cross-examination and stern questioning by the Tribunal centred upon the Applicant’s involvement in a sexual offence for which he was convicted. Those facts are set out in the sentencing remarks of Graham AJ. The Applicant continues to dispute his involvement in the offence but claims to “accept the decision of the Court”. Despite being given two opportunities during the course of the hearing, to “reconsider” his evidence, the Applicant steadfastly refused to do so, giving what can only be described as ludicrous explanations for his presence during the commission of the offence and his non-involvement in it. He maintained his position obdurately. The acceptance and recognition of wrongdoing is the first step to a satisfactory rehabilitation according to the evidence of the psychologist Mr Tim Watson-Munro who assessed the Applicant in a contemporary report. The Tribunal accepts this as an appropriate statement of principle.

Evidence

Evidence Before The Court

The issue for the Tribunal to consider is whether it should exercise the power in subsection 501CA(4) in favour of revoking the mandatory cancellation of the Applicant’s visa. In addressing this issue, the Tribunal must determine:(a)whether the Applicant passes the character test (as defined in section 501); and(b)if he does not, whether the Tribunal is satisfied that there is another reason why the cancellation decision should be revoked.EVIDENCE AND DISCUSSION The Applicant gave evidence. Much cross-examination and stern questioning by the Tribunal centred upon the Applicant’s involvement in a sexual offence for which he was convicted. Those facts are set out in the sentencing remarks of Graham AJ. The Applicant continues to dispute his involvement in the offence but claims to “accept the decision of the Court”. Despite being given two opportunities during the course of the hearing, to “reconsider” his evidence, the Applicant steadfastly refused to do so, giving what can only be described as ludicrous explanations for his presence during the commission of the offence and his non-involvement in it. He maintained his position obdurately. The acceptance and recognition of wrongdoing is the first step to a satisfactory rehabilitation according to the evidence of the psychologist Mr Tim Watson-Munro who assessed the Applicant in a contemporary report. The Tribunal accepts this as an appropriate statement of principle. The Applicant did not accept criminal responsibility when originally interviewed for the pre-sentence report prepared in 2015. It would seem, in fact, that the Applicant’s attitude to his offending has remained unchanged. That is, however, entirely contrary to the evidence given by Mr Watson-Munro who said that he was “surprised” that the Applicant had assumed that position. This was, he said, in effect contrary to the Applicant’s expressions of remorse and acceptance of responsibility made recently by the Applicant to Mr Watson-Munro. Furthermore, the psychologist gave illustrations that did, in the Tribunal’s view, suggest acceptance of responsibility by the Applicant when speaking to Mr Watson-Munro. These recounted statements included not only remorse but also some limited empathy for the victim. The Tribunal concludes that although the remorse was largely self-referenced, there was nonetheless an ingredient of appropriate remorse for his actions. The Tribunal has concluded this apparent inconsistency in the Applicant’s expressed acceptance and/or rejection of responsibility may be satisfactorily reconciled. The Tribunal takes the view that, as a matter of common experience both in Courts and Tribunals, psychiatrists and psychologists who are trained in assessing and distilling the truth of what is said to them by subjects are trained in doing so for the very purpose of distilling the truth. Mr Watson-Munro, it may be accepted, is a very experienced psychologist. He was surprised and almost disbelieving when informed of the evidence that the Applicant had given concerning criminal responsibility.

Decision

Reasons for decision

The character test is defined in subsection 501(6) of the Act. Relevantly, a person will not pass the character test if they have a “substantial criminal record”: paragraph 501(6)(a). The phrase “substantial criminal record” is defined in subsection 501(7), and includes circumstances where a person has been sentenced to a term of imprisonment of 12 months or more.Power to revoke cancellation decision When a visa is mandatorily cancelled pursuant to subsection 501(3A), the Minister must give the person concerned notice of the decision by written notice which sets out the original decision (subparagraph 501CA(3)(a)(i)), and particulars of the relevant information (subparagraph 501CA(3)(a)(ii)), and invite the person to make representations to the Minister in relation to the revocation of the original decision (paragraph 501CA(3)(b)). Pursuant to subsection 501CA(4), the Minister may revoke the original decision if:(a)the person makes representations in accordance with the invitation: paragraph 501CA(4)(a); and(b)the Minister is satisfied that:(i)the person passes the section 501 character test: subparagraph 501CA(4)(b)(i); or(ii)there is another reason why the original decision should be revoked: subparagraph 501CA(4)(b)(ii). A decision under subsection 501CA(4) of the Act involves an assessment and evaluation of the factors for and against revoking the cancellation. A determination under subsection 501CA(4) must be carried out in accordance with any written directions under the Act: subsection 499(2A). In considering a request for revocation of a mandatory subsection 501(3A) cancellation, the decision-maker must comply with Direction No. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 65).Direction 65 Direction 65 provides that the decision is to be approached within the framework of the principles in paragraph 6.3 of Direction 65 (the Principles). Informed by the Principles, the decision-maker must take into account the primary considerations in Part C of Direction 65 in deciding whether to revoke a mandatory cancellation. The primary considerations are:(a)protection of the Australian community from criminal and other serious conduct;(b)the best interests of minor children in Australia; and(c)expectations of the Australian community. The decision-maker must also take into account other considerations insofar as they are relevant. These include but are not limited to:(a)international non-refoulement obligations;(b)strength, nature and duration of ties to Australia;(c)impact on Australian business interests;(d)impact on victims; and(e)extent of impediments if removed from Australia. Failure of the character test arises as a matter of law: Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666 at [63]. On the facts of this matter that the Applicant fails the character test in paragraph 501(6)(a) of the Act.

Ratio Decidendi

Legal Principle Established

The Tribunal recognises the Applicant’s claimed risk of harm in Iraq. This consideration however does not, in the Tribunal’s opinion, carry any weight in the Applicant’s favour.Strength, nature and duration of ties to Australia – impact on family members The Applicant arrived in Australia as a teenager and has lived here for the past 10 years. The Applicant’s mother and brother have both provided statements in support of the Applicant. However, the Applicant has not undertaken any caring or financial responsibilities since his incarceration in 2015. Whilst the Applicant’s return to Iraq would involve a physical separation from his family members, there is no evidence before the Tribunal to suggest that the Applicant would be unable to maintain contact with his family via alternative means, including electronic communication. The Tribunal accepts that this consideration weighs in favour of revocation, although it should be given limited weight.Extent of impediments if removed Paragraph 14.5(1) of Direction 65 provides that the extent of any impediments to an Applicant establishing themselves and maintaining basic living standards is to be considered in the context of what is generally available to other citizens of that country. There is no evidence that as a citizen of Iraq, the Applicant would be denied access to the social, welfare, and medical services available to other Iraqi citizens. Whilst the Applicant may face difficulties in re-establishing himself in Iraq, there is no evidence that any hardship would be insurmountable.CONCLUSION The primary consideration of the protection of the Australian community ultimately weighs in the Applicant’s favour. The Tribunal considers, as discussed above, that the Applicant is at minimal risk of reoffending or committing other offences. The Tribunal determines this consideration as the most important consideration, taking into account all considerations. The correct and preferable decision, therefore, is to quash the decision under review and reinstate the Applicant’s visa.