ZNBG and Minister for Home Affairs (Migration)

Case [2019] AATA 1872

ZNBG and Minister for Home Affairs (Migration) [2019] AATA 1872 (9 July 2019)

Division:GENERAL DIVISION

File Number:           2019/2290

Re:ZNBG

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A. Nikolic AM CSC

Date:9 July 2019

Place:Sydney

The Tribunal sets aside the reviewable decision of 17 April 2019 and substitutes a decision that the mandatory cancellation of ZNBG’s visa on 21 June 2017 is revoked.

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

Senior Member A. Nikolic AM CSC

CATCHWORDS

MIGRATION – Mandatory visa cancellation – citizen of New Zealand – Class TY Subclass 444 Special Category visa – violent and serious criminal offending – failure to pass character test – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – decision set aside and substituted

LEGISLATION

Administrative Appeals Act 1975 (Cth)

Children and Young Persons (Care and Protection Act) 1998 (NSW)
Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

CASES

Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705

BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
DKXY v Minister for Home Affairs [2019] FCA 495
Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Jagroop v Minister for Immigration and Border Protection [2016] 241 FCR 461
Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213
Re LCNB and Minister for Immigration and Border Protection [2015] AATA 463
Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424

SECONDARY MATERIALS

Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

Direction No. 75 – Refusal of Protection Visas Relying on Section 36(1C) and Section 36(2C)(b)

REASONS FOR DECISION

Senior Member A. Nikolic AM CSC

9 July 2019

INTRODUCTION

  1. The applicant seeks review of a decision by a delegate of the Minister for Home Affairs, made under s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (“the visa”).

  2. The hearing was held in Sydney on 27 and 28 June 2019. The applicant appeared in person and was represented by Mr McComber of Sentry Law. The Minister was represented by Mr Keevers of Sparke Helmore Lawyers.

  3. Pursuant to s 500(6L) of the Act, the Tribunal must discharge its review function in respect of this application by 10 July 2019.

  4. For the reasons that follow, the Tribunal sets aside the reviewable decision of 17 April 2019, and substitutes…

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AGLC
ZNBG and Minister for Home Affairs (Migration) [2019] AATA 1872
Case
[2019] AATA 1872
Decision Date

CaseChat Overview and Summary

This matter concerned an application by ZNBG, a citizen of New Zealand, to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category visa. The cancellation was based on ZNBG failing to pass the character test due to serious criminal offending, specifically violent offences against Partner 3. The Administrative Appeals Tribunal was required to determine whether there was "another reason" under section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) to revoke the visa cancellation, as the discretion to revoke based on passing the character test was not applicable.

The Tribunal considered the evidence presented, including extensive documentation and oral testimony from ZNBG, his family, partners, and children. ZNBG had been convicted of multiple offences, including assault occasioning actual bodily harm, stalking, and property damage, resulting in an aggregate sentence of 14 months imprisonment. The sentencing remarks highlighted the violent and aggressive nature of the offending, particularly given ZNBG was on a good behaviour bond and an apprehended violence order at the time. However, the court also noted ZNBG's otherwise good character, the recent onset of his criminal history, and potential explanations such as substance abuse and a toxic relationship.

Applying the principles from *Gaspar v Minister for Immigration and Border Protection*, the Tribunal conducted an evaluative process of the factors for and against revocation. While acknowledging the seriousness of ZNBG's violent conduct, the Tribunal found that his lack of prior criminal history, the impulsive nature of the offending within a dysfunctional relationship, his subsequent cessation of drug use, and his genuine remorse and insight were significant mitigating factors. The Tribunal also noted ZNBG's successful engagement with rehabilitation programs, expert evidence indicating a low risk of reoffending, and the presence of protective factors such as a new supportive relationship, accommodation, employment prospects, and family support.

Ultimately, the Tribunal was satisfied that there was another reason to revoke the mandatory visa cancellation. The Tribunal set aside the decision and substituted a decision to revoke the cancellation, finding that ZNBG's rehabilitation, remorse, and the specific circumstances of his offending, when weighed against the seriousness of the conduct, justified revocation.

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

It follows that the discretion at s 501CA(4)(b)(i) of the Act, to revoke the visa cancellation based on the applicant passing the character test, is not applicable. What remains to be determined is if there is ‘another reason’ to revoke the visa cancellation under s 501CA(4)(b)(ii) of the Act. This involves an evaluative process consistent with the reasoning of North ACJ in Gaspar v Minister for Immigration and Border Protection,[31] which the Tribunal adopts:“The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked…”[31] [2016] FCA 1166 at [38].EVIDENCE BEFORE THE TRIBUNAL Documents taken into evidence at the hearing were:(a) G-Documents numbering 369 pages;[32](b) a further bundle of documents tendered by the respondent numbering 531 pages;[33] and(c) applicant’s bundle of documents numbering 74 pages.[34][32] Exhibit R1.[33] Exhibit R2.[34] Exhibit A1. Eight witnesses gave oral evidence at the hearing: (a) ZNBG (in person);(b) ZNBG’s mother (in person and with the assistance of an interpreter in the Samoan language);(c) ZNBG’s step father (via video link from interstate and with the assistance of an interpreter in the Samoan language);(d) ZNBG’s sister (in person);(e) Partner 1 (via video link from interstate);(f) Child A (in person); (g) Child B (via video link from interstate); and(h) Partner 3 (in person).National Police Certificate and Sentencing Remarks ZNBG’s National Police Certificate discloses that on 10 January 2017 he was convicted in the Campbelltown Local Court of four offences: ‘Assault occasioning actual bodily harm; Stalk/intimidate intend fear physical etc harm (domestic); Contravene prohibition/ restriction in avo (domestic); and Destroy or damage property <=$2000.’ The Court imposed an aggregate sentence of 20 months imprisonment. Sentencing remarks refer to the above offending as having occurred on 25 July 2016 against Partner 3.[35] ZNBG was also convicted of a further count of ‘Assault occasioning actual bodily harm,’ which was a ‘call up’ of a conviction in the Fairfield Local Court on 12 April 2016, for which ZNBG had previously been placed on a 12-month bond. That offending related to a domestic violence incident on 28 July 2015, also against Partner 3.[35] Exhibit R2, 189. ZNBG appealed the severity of the January 2017 sentence and, on 15 June 2017, the District Court of New South Wales reduced his sentence to an aggregate term of 14 months imprisonment.[36] The judge found that all four offences were intrinsically linked. ZNBG was on a good behaviour bond at the time of this offending and pled guilty at trial. Sentencing remarks of the Court state:[37]…What that finding of facts by the magistrate, both on the hearing and the sentence, reveals was a particularly aggressive and ongoing, violent assault in the circumstances where he was on a good behaviour bond for a similar matter and where he was on an AVO at the time, designed to stop that exact behaviour occurring…ZNBG has a bit of an unusual subjective background. He actually has only recently started getting criminal offences on his record. Indeed, for almost his entire life he has seemingly been a person of good character and it is somewhat unusual that at the stage of life that he is now at, where he is 32 years old, that he is just suddenly starting to develop a criminal history in his early thirties. That may be explained by the fact that, unfortunately, he has come under a recent substance abuse issue and, in particular, the drug ice, which is always going to feed aggressiveness.It also seems that he has, at least in the concept of this particular relationship, a toxic relationship with the complainant in this matter. That is not to anyway excuse or mitigate his violence; it is perhaps just an explanation. That explanation is particularly significant when you look at the material tended on the appeal today from [Partner 1] that shows that he is someone who is capable of having a perfectly normal and positive relationship that does not involve violence, so he is clearly not a person who necessarily has a predilection for violence, particularly in relationships. There must be something about the combination of his turning to drugs, this particular relationship and perhaps other aspects of his life suddenly leading to him being involved in violence here. But unlike many matters that come before the Court, this is not someone who has been exhibiting violence, criminal behaviour and particularly domestic violence throughout his life, it has become a much more recent phenomenon in relation to this issue and, unfortunately, has left him in a situation where he is serving a lengthy custodial sentence, as imposed by the magistrate.… I think it is true to show that this was just an impulsive matter that was not necessarily reflective of the lifestyle that he had been leading in his life. He is not someone who even, since he has been now dealt with for this matter and serving a sentence, has had any problems involving violence whilst in custody. It does seem, on the surface of it, that this is a matter that may resolve itself well if he can just get out of this relationship and move on in his life.He has been a good father to his children and it has been a shock for them to suddenly have him in custody and the significance of that. I think he is someone who does have significant prospects of rehabilitation if he can move out of this relationship and start addressing also his drug issues in relation to this matter.……So I think the sentence imposed by the magistrate is significantly too long…[36] Ibid, 181.[37] Exhibit R1, 38-43.Pre-Sentence Report

Decision

Reasons for decision

No additional considerations were advanced by the parties and I have not identified any additional ‘other considerations’ relevant to the specific circumstances of ZNBG’s application as provided for at paragraph 14(1) of the Direction. CONCLUSION ZNBG’s violent conduct against Partner 3 is objectively very serious. That said, he has no previous history of criminal offending and has been of good character for almost his entire life. The totality of the evidence is not suggestive of someone with a predilection for violence. The domestic violence ZNBG committed was impulsive and occurred in the context of a relationship with Partner 3 that was routinely violent, dysfunctional and described by the court and both participants as ‘toxic.’ The Tribunal accepts it was during this relationship that ZNBG became severely depressed and fell into drug use for the first time. This included the drug ‘Ice,’ which the court held ‘was always going to feed aggressiveness.’ His drug use was relatively short-lived, however, and the Tribunal accepts ZNBG’s unchallenged contention that he has remained drug free while imprisoned and in immigration detention. The Tribunal notes in particular Partner 3’s oral evidence at the hearing that: (a)a number of claims she previously made about ZNBG’s conduct to the authorities was exaggerated or constituted ‘lashing out;’ (b)on a number of occasions she threatened ZNBG with making false claims against him if he tried to leave the relationship; and (c)Partner 3 was frequently violent and aggressive towards ZNBG, including with a knife, scissors, and by trying to cause the vehicle they were in to crash by grabbing the steering wheel or moving the car out of gear while travelling at high speed. ZNBG has undertaken rehabilitative courses prior to and during imprisonment and immigration detention. He conveys persuasive insight, remorse, and acceptance that domestic violence, in any circumstances, is wrong. Importantly, ZNBG has implemented the court’s recommendation to ‘get out of [the] relationship’ with Partner 3, as a precondition to ‘move on in his life.’ On the evidence before the Tribunal, the likelihood of any future romantic relationship between ZNBG and Partner 3, or of ZNBG falling back into drug use, is considered remote. In that respect, ZNBG has addressed key contributing factors identified by the court as relevant to his offending. The evidence discloses ZNBG’s motivated engagement with psychological treatment and rehabilitative opportunities. This has enhanced what the court considered were his ‘significant’ prospects of rehabilitation, and lowered his overall risk of offending. Expert evidence from Dr Yoxall supports a conclusion that ZNBG represents a low overall risk of reoffending. The Tribunal also notes a number of protective factors relevant to ZNBG’s risk of recidivism if released, including a new personal relationship, offers of stable accommodation, realistic prospects of returning to stable employment, a renewed commitment to his religion, and extensive family and community support.

Ratio Decidendi

Legal Principle Established

Paragraph 8(5) states that ‘One or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461 at [57] and [78], in relation to previous ministerial directions:[57] … the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501……[78] … Ultimately…each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.TRIBUNAL CONSIDERATIONDoes ZNBG Pass the Character Test? ZNBG has been sentenced to a term of imprisonment exceeding 12 months. Because of the combined effects of ss 501(6)(a), and 501(7)(c) of the Act, he has a substantial criminal record and does not pass the character test. Issue to be resolved It follows that the discretion at s 501CA(4)(b)(i) of the Act, to revoke the visa cancellation based on the applicant passing the character test, is not applicable. What remains to be determined is if there is ‘another reason’ to revoke the visa cancellation under s 501CA(4)(b)(ii) of the Act. This involves an evaluative process consistent with the reasoning of North ACJ in Gaspar v Minister for Immigration and Border Protection,[31] which the Tribunal adopts:“The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked…”[31] [2016] FCA 1166 at [38].EVIDENCE BEFORE THE TRIBUNAL Documents taken into evidence at the hearing were:(a) G-Documents numbering 369 pages;[32](b) a further bundle of documents tendered by the respondent numbering 531 pages;[33] and(c) applicant’s bundle of documents numbering 74 pages.[34][32] Exhibit R1.[33] Exhibit R2.[34] Exhibit A1. Eight witnesses gave oral evidence at the hearing: (a) ZNBG (in person);(b) ZNBG’s mother (in person and with the assistance of an interpreter in the Samoan language);(c) ZNBG’s step father (via video link from interstate and with the assistance of an interpreter in the Samoan language);(d) ZNBG’s sister (in person);(e) Partner 1 (via video link from interstate);(f) Child A (in person); (g) Child B (via video link from interstate); and(h) Partner 3 (in person).National Police Certificate and Sentencing Remarks ZNBG’s National Police Certificate discloses that on 10 January 2017 he was convicted in the Campbelltown Local Court of four offences: ‘Assault occasioning actual bodily harm; Stalk/intimidate intend fear physical etc harm (domestic); Contravene prohibition/ restriction in avo (domestic); and Destroy or damage property <=$2000.’ The Court imposed an aggregate sentence of 20 months imprisonment.