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

Case [2021] AATA 1738

ZSQC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1738 (15 June 2021)

Division:GENERAL DIVISION

File Number:          2021/1894

Re:ZSQC  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Dr M Evans-Bonner

Date:15 June 2021

Place:Perth

The Reviewable Decision is set aside and substituted with the decision that the cancellation of the Applicant’s Visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

...................[Sgd].....................................................

Senior Member Dr M Evans-Bonner

CATCHWORDS

MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – substantial criminal record – driving offences and other general offending – Direction No 90 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – family violence – best interests of minor children – expectations of the Australian community – extent of impediments if removed – links to the Australian community – strength, nature and duration of ties to Australia – Applicant has a 15-year-old daughter and minor nieces and nephews – Applicant is a 56-year-old man who arrived in Australia as a four-year-old child – confirmation given by Department in 1994 that Applicant not liable for deportation – Applicant was born in Germany but is British citizen who has never been to the United Kingdom – extent of impediments if removed to United Kingdom – Tribunal found that there is another reason to revoke the Cancellation Decision – Reviewable Decision set aside and substituted

LEGISLATION

Migration Act 1958 (Cth) – ss 499, 499(1), 499(2A), 500(6B), 500(6L), 500(7A), 501(2), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501G(1)

Migration Regulations 1994 (Cth) – reg 2.55(8)

CASES

Apire and Minister for Immigration and Border Protection [2014] AATA 193

Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561

JFSQ and Minister for Home Affairs [2019] AATA 616

Kohli and Minister for Immigration and Border Protection [2017] AATA 1326

MJNN and Minister for Home Affairs [2019] AATA 3205

NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 114

PNLB and Minister for Immigration and Border Protection [2018] AATA 162

Subasinghe and Minister for Home Affairs [2019] AATA 751

Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208

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 s501CA (22 December 2014)

Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018)

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA…

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AGLC
ZSQC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1738
Case
[2021] AATA 1738
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a delegate of the Minister's decision not to revoke the mandatory cancellation of the applicant's visa. The applicant, a 56-year-old man who arrived in Australia as a four-year-old child and held British citizenship, had a substantial criminal record. The delegate's decision was made pursuant to section 501CA(4) of the Migration Act 1958 (Cth), following the mandatory cancellation of his visa under section 501(3A) due to his failure to pass the character test. The review was heard by M Evans-Bonner SM.

The primary legal issues before the Tribunal were whether the applicant passed the character test as defined by section 501(6) of the Migration Act, and if not, whether there was another reason why the visa cancellation decision should be revoked, as contemplated by section 501CA(4) of the Act. The Tribunal was required to consider the factors outlined in Direction No 90, including the protection of the Australian community, the nature and seriousness of the offending conduct, the risk to the community, the best interests of minor children, community expectations, and the extent of impediments to removal.

The Tribunal considered evidence from the applicant, his partner, his 15-year-old daughter, and his sisters-in-law. It was noted that the applicant had arrived in Australia at a young age and had received confirmation in 1994 that he was not liable for deportation. The Tribunal found that there was another reason to revoke the cancellation decision, despite the applicant not passing the character test. Consequently, the Tribunal set aside the delegate's decision and substituted its own decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The issues for determination by this Tribunal are:(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).THE HEARING AND THE EVIDENCE This application was heard on 1 June 2021. The Applicant was represented by Ms Angel and the Respondent was represented by Mr Burgess. The Applicant gave oral evidence at the hearing and was cross-examined. The Applicant called the following witnesses: (a)his partner, who gave evidence in person; (b)his 15-year-old daughter, A, who gave evidence in person; (c)his sister in law, M, who gave evidence by telephone; and (d)his sister in law, C, who gave evidence by telephone. The Tribunal admitted the following documents into evidence at the hearing:(a)Applicant’s Bundle of Evidence, comprising pages 1 to 44 (Exhibit A1); (b)Applicant’s Supplementary Bundle of Evidence comprising pages 1 to 6 (Exhibit A2); (c)Section 501G Documents, numbered G1 to G44 and comprising 216 pages (Exhibit R1); and(d)Tender Bundle, numbered R1 to R8 and comprising 367 pages (Exhibit R2). The Tribunal also had before it the following submissions filed by the parties:(a)Applicant’s Statement of Facts, Issues and Contentions dated 28 April 2021 (ASFIC);(b)Respondent’s Statement of Facts Issues and Contentions dated 19 May 2021 (RSFIC); and(c)Applicant’s Submissions in reply dated 26 May 2021 (Reply). LEGISLATIVE FRAMEWORK Migration Act Section 501(3A) of the Migration Act provides that:(3A)The Minister must cancel a visa that has been granted to a person if:(a)the Minister is satisfied that the person does not pass the character test because of the operation of:(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or(ii) paragraph (6)(e) (sexually based offences involving a child); and(b) the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. Section 501(6) of the Migration Act provides that:(6)For the purposes of this section, a person does not pass the character test if:(a)the person has a substantial criminal record (as defined by subsection (7)); or … (Original emphasis.) A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:(7)For the purposes of the character test, a person has a substantial criminal record if: …(c)the person has been sentenced to a term of imprisonment of 12 months or more; or (d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or …(Original emphasis.) Section 501CA of the Migration Act further provides: (1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:(a)would be the reason, or a part of the reason, for making the original decision; and(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.(3)As soon as practicable after making the original decision, the Minister must:(a)give the person, in the way that the Minister considers appropriate in the circumstances:(i) a written notice that sets out the original decision; and(ii) particulars of the relevant information; and(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.(4)The Minister may revoke the original decision if:(a)the person makes representations in accordance with the invitation; and(b)the Minister is satisfied:(i) that the person passes the character test (as defined by section 501); or(ii) that there is another reason why the original decision should be revoked.(Original emphasis.)Direction No 90

Decision

Reasons for decision

After considering the Applicant’s representations, on 24 March 2021 a delegate of the Minister decided not to revoke the Cancellation Decision under s 501CA(4) of the Migration Act (G3/14). This is the Reviewable Decision currently before this Tribunal. The Applicant was notified of the Reviewable Decision in a letter dated 25 March 2021 delivered via email to his legal representative (G3/10–12). Therefore, the Applicant is taken to have received it on 25 March 2021 (reg 2.55(8) of the Migration Regulations 1994 (Cth)). On 30 March 2021, the Applicant lodged an application in the General Division of the Tribunal seeking a review of the Reviewable Decision (G2/3–9). Therefore, the Applicant filed his application for review within the nine-day period prescribed by s 500(6B) of the Migration Act. Section 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the day on which the Applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the 84-day period started running from 25 March 2021, meaning the Tribunal must hand down a decision with respect to this application on or before 17 June 2021. ISSUES The issues for determination by this Tribunal are:(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).THE HEARING AND THE EVIDENCE This application was heard on 1 June 2021. The Applicant was represented by Ms Angel and the Respondent was represented by Mr Burgess. The Applicant gave oral evidence at the hearing and was cross-examined. The Applicant called the following witnesses: (a)his partner, who gave evidence in person; (b)his 15-year-old daughter, A, who gave evidence in person; (c)his sister in law, M, who gave evidence by telephone; and (d)his sister in law, C, who gave evidence by telephone. The Tribunal admitted the following documents into evidence at the hearing:(a)Applicant’s Bundle of Evidence, comprising pages 1 to 44 (Exhibit A1); (b)Applicant’s Supplementary Bundle of Evidence comprising pages 1 to 6 (Exhibit A2); (c)Section 501G Documents, numbered G1 to G44 and comprising 216 pages (Exhibit R1); and(d)Tender Bundle, numbered R1 to R8 and comprising 367 pages (Exhibit R2). The Tribunal also had before it the following submissions filed by the parties:(a)Applicant’s Statement of Facts, Issues and Contentions dated 28 April 2021 (ASFIC);(b)Respondent’s Statement of Facts Issues and Contentions dated 19 May 2021 (RSFIC); and(c)Applicant’s Submissions in reply dated 26 May 2021 (Reply). LEGISLATIVE FRAMEWORK Migration Act Section 501(3A) of the Migration Act provides that:(3A)The Minister must cancel a visa that has been granted to a person if:(a)the Minister is satisfied that the person does not pass the character test because of the operation of:(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or(ii) paragraph (6)(e) (sexually based offences involving a child); and(b) the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

Ratio Decidendi

Legal Principle Established

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