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

Case [2021] AATA 1633

ZFZM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1633 (29 April 2021)

Division:GENERAL DIVISION

File Number:          2021/0835

Re:ZFZM

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:  Member Rebecca Bellamy

Date of Decision:                   29 April 2021

Date of Written Reasons:      8 June 2021

Place:  Brisbane

The decision under review is set aside and the Tribunal exercises the discretion contained in section 501CA (4)(b)(ii) of the Migration Act 1958 (Cth) to revoke the mandatory cancellation of the Applicant’s visa

..........................[SGD]..............................................
Member Rebecca Bellamy

CATCHWORDS

MIGRATION – Non-revocation of mandatory cancellation of a Regional Sponsored Migration Scheme (Class RN Subclass 187) visa - where Applicant did not pass the character test and subsequently the sentence of imprisonment triggering mandatory cancellation was set aside – which limbs of character test apply – consideration of Ministerial Direction No. 90 minor offending – whether there is another reason to revoke the mandatory cancellation decision – low risk of re-offending – decision under review set aside

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Justices Act 1886 (Qld)

Migration Act 1958 (Cth)

CASES

Afu v Minister for Home Affairs [2018] FCA 1311

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 93 ALJR 629; (2019) 266 CLR 250

FYBR v Minister for Home Affairs [2019] FCA 500; [2019] FCAFC 185

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337

HZCP v Minister for immigration and Border Protection [2019] FCAFC 202

LLSY v Minister for Immigration and Citizenship [2019] FCA 2033 (25 November 2019)

Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548

Minister for Home Affairs v Buadromo [2018] FCAFC 151

Minister for Immigration and Border Protection v Makasa [2021] HCA 1

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16   (“CPJ16”) [2019] FCA 2033 (25 November 2019).

Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475

Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 315

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Uelese v Minister for Immigration and Border Protection [2016] FCA 348

SECONDARY MATERIAL

Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Member Rebecca Bellamy

8 June 2021

THE ISSUES BEFORE THE TRIBUNAL

  1. The Applicant is a 23-year-old citizen of Fiji. In December 2012, when he was 14 years old, he moved to Australia. The most recent visa granted to him was a Regional Sponsored Migration Scheme (Class RN Subclass 187) visa (“visa”).[1]

    [1] Exhibit G1, Section 501 G documents, G10, page 202.

  2. Subsection 501(3A) of the Migration Act 1958 (“the Act”) provides that the Minister must cancel a visa that has been granted to a person if: 

    (a)  the Minister…

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Details
AGLC
ZFZM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1633
Case
[2021] AATA 1633
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by ZFZM against a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to revoke the mandatory cancellation of his Regional Sponsored Migration Scheme (Class RN Subclass 187) visa. The dispute arose because the applicant did not pass the character test, triggering the mandatory cancellation of his visa. However, a subsequent court decision set aside the sentence of imprisonment that had led to the mandatory cancellation. The Administrative Appeals Tribunal (AAT) was required to determine which limbs of the character test applied in these circumstances and whether there was another reason to revoke the mandatory cancellation decision, considering Ministerial Direction No. 90 regarding minor offending.

The court's reasoning focused on the scope of the AAT's review powers. It applied the principle that, absent clear statutory indication to the contrary, the AAT can only consider evidence relevant to the question the original decision-maker was bound to decide. This means the AAT should assess the matter as if the original decision-maker were deciding it at the time of the AAT hearing, but without altering the fundamental nature of the decision under review. The court found that the respondent had not demonstrated any legislative intent to expand the scope of administrative merits review to allow the AAT to consider aspects of the character test that were not before the original decision-maker.

The court ultimately held that the AAT could not take into account limbs of the character test that were not considered by the original decision-maker. The decision under review was set aside.

Orders

Orders of the court

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Background

Background to the litigation

I note that Paragraph 7.2 provides that the primary considerations should generally be given greater weight than the other considerations and that paragraph 7.3 provides that one or more primary considerations may outweigh other primary considerations. BACKGROUND AND OFFENDING In 2012 when he was 14 years old the Applicant moved to Australia with his parents and his two brothers. The family settled in Gladstone where the Applicant attended high school completing Grade 12. The Applicant commenced offending in 2017 when he was 18 years old, some four years after he arrived in Australia. His offending history spans a period of three years from January 2017 to February 2020 and includes 13 separate offences. He has appeared before the Magistrates Court in five separate sentencing episodes. He has only one recorded traffic offence in August 2020 (for speeding less than 13km/hr over the speed limit) and had his license briefly suspended on two occasions for failure to pay outstanding fines and penalties. The first criminal offences were committed in January 2017. On 28 January 2017 the Applicant attended a party and stole a mobile phone belonging to another guest. That person subsequently posted on Facebook that she would give $200 to whoever located a phone. The Applicant pretended that he had found her phone, intending to receive the $200 reward money. A friend who knew what he had done told the owner of the phone who then confronted the Applicant. The Applicant admitted to having stolen her phone and lying to her to get the $200. He gave the phone back. He was interviewed by the police and made full admissions. The Applicant was convicted of two counts of receive tainted property and one count of attempted fraud and sentenced on 21 March 2017 to 12 months’ probation. In the hearing the Applicant said that he completed probation without any problems. He said as part of the requirements, he met with a probation officer every week, normally the same person. They talked about how his life was going, and he found that helpful.[22][22] Transcript, page 54, lines 41 to 47; page 55, lines 1 to 18. On 5 March 2018,[23] the Applicant committed another stealing offence. The police court brief records that the Applicant and his friends were at a Hungry Jacks when the victim, having left his scooter outside, walked in and had a conversation with them. The Applicant and his friends then left and as the Applicant was walking past, he turned back around, picked up the scooter and ran off with it. He put it in his friend’s car and they all left together. Around two weeks later when police spoke with the Applicant, he denied knowledge of the offence. However, after being shown CCTV footage he made admissions, stating that his friend’s brother was owed money.[24] [23] Which appears to be just inside the probation period, although no action was taken for breaching probation. [24] Exhibit G1, Section 501 G documents, G6, page 87. On 20 October 2018 the Applicant committed four offences arising out of an incident that involved the police.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The High Court unanimously held that it could not. I note the following passages come from the joint judgment of Kiefel CJ, Keane J and Nettle J:“Depending on the nature of the decision the subject of review, the AAT may sometimes take into account evidence that was not before the original decision-maker, including evidence of events subsequent to the original decision. But subject to any clearly expressed contrary statutory indication, the AAT may do so only if and to the extent that the evidence is relevant to the question which the original decision-maker was bound to decide; really, as if the original decision-maker were deciding the matter at the time that it is before the AAT. The AAT cannot take into account matters which were not before the original decision-maker where to do so would change the nature of the decision or, put another way, the question before the original decision-maker.”[143]“Subject, therefore, to any clearly expressed contrary legislative intent, the question which the AAT was required to decide on review of ASIC's decision was whether, having regard to the same specified range of considerations, and thus excluding spent convictions, the appellant was not a fit and proper person to engage in credit activities.”[144]“Against that background, it is improbable that Parliament would choose a technique of obscure implication in order fundamentally to alter the nature of administrative merits review of a decision made by ASIC under s 80 of the NCCP Act…A fortiori where, as in the case of s 80(2), there is not a word to suggest in any of the extrinsic materials, including the Explanatory Memorandum and Second Reading Speech, a parliamentary intent to the effect that the AAT was to exercise a function other than the function exercised by ASIC. In light of such a tenuous implication, it is more probable that Parliament did not have an intention of changing the nature of administrative merits review of ASIC's decisions in the way contended for by the respondent.”[145](Footnotes omitted, underlining added)[143] Frugtniet v Australian Securities and Investments Commission[2019] HCA 16; (2019) 93 ALJR 629 at 633 [15] per Kiefel CJ, Keane and Nettle JJ.[144] Ibid at 634 [17] per Kiefel CJ, Keane and Nettle JJ. [145] Ibid at 635 [21] per Kiefel CJ, Keane and Nettle JJ. In Frugtniet the original decision maker was not permitted to take a fact into account whereas in the present case the original decision maker was not required to consider certain criteria. However to my mind, the rational (or part of the rationale) for the decision, indicated with underlining, is applicable to this case. The Respondent did not point to any extrinsic indicating a legislative intention to change the nature of administrative review such that the Tribunal could widen its scope to take into account limbs of the character test that were not considered by the original decision maker. Statutory implication in the wording of s 501CA(4) of the Act

Ratio Decidendi

Legal Principle Established

The Applicant appealed against the sentence on the ground that it was manifestly excessive, noting that he was represented by the duty lawyer in the sentencing proceedings.[52] The District Court set aside the sentence and re-sentenced the Applicant to probation for two years.[53][52] Ibid, G8, page 63; G7, pages 155 to 165. [53] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions, SGF-3.PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community. In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:a)The nature and seriousness of the non-citizen’s conduct to date; andb)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.The Nature and Seriousness of the Applicant’s Conduct to Date When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:(i)violent and/or sexual crimes;(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention;(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;(e)the cumulative effect of repeated offending;(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).