ZTBL and Minister for Immigration and Multicultural Affairs (Migration) - [2024] AATA 3375

ZTBL and Minister for Immigration and Multicultural Affairs (Migration) [2024] AATA 3375 (23 September 2024)
Division:GENERAL DIVISION
File Number: 2022/8717
Re:ZTBL
APPLICANT

AndMinister for Immigration and Multicultural Affairs

RESPONDENT

DECISION
Tribunal:Senior Member Rebecca Bellamy
Date: 23 September 2024
Place:Brisbane

The decision under review is affirmed.
................[SGD]................
Senior Member R Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class BF Transitional (Permanent) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 110 – long history of drug addiction and drug related crime – recent violent offending – non-citizen granted a Bridging (Removal Pending) visa – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
HZCP v Minister for immigration and Border Protection [2019] FCAFC 202.
Minister for Home Affairs v Buadromo [2018] FCAFC 151.
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37.
SECONDARY MATERIAL
Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member R Bellamy
23 September 2024

The Applicant is a 45-year-old citizen of Iraq who came to Australia on a Subclass 202 (Class XB) Global Special Humanitarian visa in 1992 when he was 13 years old.[1] In 1994 he was granted a Class BF Transitional (Permanent) visa (“BFT visa”). Unfortunately, he had suffered from a long-standing drug dependency, and this has resulted in many years of drug-related crime. His visa was cancelled in June 2021 due to his criminal offending and he has asked the Tribunal to revoke that cancellation.[2] This is the third time his visa has been cancelled and he has asked for it to be revoked. After both previous revocations, he continued to commit offences. The Minister recently granted him a Bridging R (Removal Pending) (Subclass 070) visa (“BVR”) which allows him to live in the community with conditions rather than in immigration detention. However, he would rather have his BFT visa back.
[1] Exhibit RB, page 146.
[2] Exhibit RB, pages 146 and 167.
The cancellation of the Applicant’s visa was mandatory. Section 501(3A) of the Migration Act 1958 (Cth) (“the Act”) relevantly provides that the Minister (“the Respondent”) must cancel a visa that has been granted to a person if:
·the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a), on the basis of paragraph (7)(a), (b) or (c); and
·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.
Under s 501(6)(a) of the Act, a person will not pass the character test if they have “a substantial criminal record”. Section 501(7)(c) of the Act relevantly provides that a person has a substantial criminal record if they have “

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: ZTBL and Minister for Immigration and Multicultural Affairs (Migration) [2024] AATA 3375
Case: [2024] AATA 3375
Decision Date: 23 September 2024

CaseChat Overview and Summary

This matter concerned the non-revocation of a mandatory cancellation of a Class BF Transitional (Permanent) visa held by the Applicant, who had failed to pass the character test. The Applicant had a long and serious criminal history, including drug addiction and drug-related offences spanning approximately 25 years, and more recent violent offending. He had been granted a Bridging (Removal Pending) visa. The decision under review was affirmed by Senior Member Rebecca Bellamy.

The Tribunal was required to determine whether there was "another reason" to revoke the mandatory cancellation of the Applicant's visa, considering the provisions of Ministerial Direction No. 110. This involved weighing various primary and other considerations, with a particular focus on the protection of the Australian community from harm due to criminal activity. The Tribunal had to assess the nature and seriousness of the Applicant's conduct, including the frequency and impact of his offending, and the risk he posed to the community.

In reaching its decision, the Tribunal applied Ministerial Direction No. 110, which mandates that the protection of the Australian community is a primary consideration and generally carries greater weight. The Tribunal found that the Applicant's extensive criminal history, comprising over 350 offences including violent acts and possession of weapons, weighed heavily against revoking the visa cancellation. While acknowledging the Applicant's difficult childhood and trauma, and considering factors in favour of revocation such as his past rehabilitation efforts and potential for future contributions, these were outweighed by the seriousness and persistence of his offending. The Tribunal concluded that there was not another reason to revoke the mandatory cancellation of the Applicant's visa.

Orders

Orders of the court

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Background

Background to the litigation

Paragraph 7(2) of the Direction provides that Primary Consideration 1 (protection of the Australian community) is generally to be given greater weight than other primary considerations, and that otherwise, primary considerations should generally be given greater weight than the other considerations. Paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.BACKGROUND The Applicant had a difficult, traumatic childhood. He was born in January 1978 into a family of Chaldean Assyrian Christians who were discriminated against in Iraq. When he was approximately 12 years old, they fled, on foot, towards Turkey. During that journey the Applicant became separated from his parents at the mountain border crossing, and he continued alone. A few weeks later, his maternal uncle happened to find him by the roadside in Istanbul. He took the Applicant in. The Applicant lived with his uncle’s family in a refugee camp until October 1992 when the family came to Australia on humanitarian visas.[11] [11] Exhibit RB, pages 96 and 142. Exhibit R2, page 44, lines 19 to 45. Exhibit A9, pages 1 to 2. In 1994, at the age of 16, the Applicant moved from Melbourne to the Gold Coast. He worked there as a chef from 1996 to 2001, and from 2005 to 2009,[12] when he moved back to Melbourne. He must have spent some time in New South Wales around 2008, as there are some New South Wales entries in his criminal record in that period.[13] [12] Exhibit A9, page 2.[13] Exhibit RB, page 36. In the mid-1990s the Applicant became addicted to drugs. According to him, he used them to avoid thinking about childhood trauma. He initially used cannabis before moving onto harder drugs, notably heroin.[14] His drug use led him to crime. His first recorded offence, behave in a disorderly manner, was in 1997. The next offence, fraud, was committed in 2000, followed by possessing dangerous drugs later that year.[15] Unfortunately, he remained in the grip of a drug addiction, committing drug related crimes, for some 25 years.[14] Exhibit A9, pages 2 to 4.[15] Exhibit RB, page 37. The offences he committed between 1997 and 2021 included possession of drugs and drug related utensils, dishonesty offences, theft and burglary and other property offences, driving offences and unlawful use of vehicles, dealing in suspected proceeds of crime, criminal damage, breaching bail, possession of weapons and ammunition without reasonable excuse, and failure to comply with directions. His offending totalled some 350 offences.[16] He committed offences in breach of community-based orders including suspended sentences, and after he had been warned several times that his visa could be cancelled due to criminal offending. [16] Exhibit RB, pages 26 to 37. On 15 August 2002, when the Applicant was 24 years old, he received his first custodial sentence, being imprisonment for three years for several fraud offences and a slightly shorter term for some attempted fraud offences. His offending involved at least 300 transactions of credit card fraud and the fraudulent obtaining of loans between August 1999 and August 2001. The total value of the fraud was $116,331.53. Some of the offending occurred after the Applicant was apprehended by the police and questioned in relation to a separate large-scale mobile phone scam. The learned sentencing Judge noted that, at the time he committed the offences, he had already been dealt with in the Magistrate’s court for similar offences. Her Honour further commented that she thought the Applicant’s expression of remorse related more to the position in which he found himself, than the impact his offending had on the victims of his fraud or others in the community who had to bear the cost of his fraud.[17] [17] Exhibit RB, pages 56 to 50.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I am now required to weigh all the Considerations in accordance with the Direction. Primary Considerations 1 and 5 weigh heavily against revocation of the cancellation of the visa. Primary Consideration 3 attracts moderate to heavy weighs in favour of revocation, and Other Consideration (a) weighs moderately in favour of revocation. Therefore, there is more weight in favour of not revoking the cancellation of the Applicant’s visa. There is not another reason to revoke the cancellation of the Applicant’s visa. DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

On 5 August 2024, a delegate of the Minister refused to grant the Applicant a protection visa (after he applied for one) because he did not satisfy s 36(1C) of the Act. While he was found to be a person to whom Australia owed protection obligations, he was disqualified from getting a protection visa on the basis that, having been convicted of a particularly serious crime, he was a danger to the community. That same day, he was granted the BVR[68] under reg 2.25AB of the Migration Regulations 1994 (“Regulations”) and released from immigration detention on 5 August 2024. At the commencement of the hearing, he had been living in the wider community for one day. PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY[68] Exhibit R3. 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. Given the Applicant’s criminal history, this primary consideration must weigh against him. In determining how much it weighs against him, paragraph 8.1(2) of the Direction requires me to consider:a)The nature and seriousness of the Applicant’s conduct to date; andb)The risk to the Australian community should the Applicant 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 the Applicant’s criminal offending or other conduct to date, I must have regard to the following relevant matters:·that violent crimes are considered to be very serious;·the sentence imposed by the courts for a crime or crimes;·the impact of the offending or other conduct on any victims and their family;·the frequency of the offending and/or whether there is any trend of increasing seriousness;·the cumulative effect of repeated offending; and·that the Applicant continued to offend after having been formally warned, or otherwise made aware, in writing, about the consequences of further offending in terms of his migration status. Between 1997 and 2021, the Applicant committed over 350 offences, which is frequent, persistent offending. It is reasonable to assume that his repeated offending involving property and dishonesty offences caused financial loss and inconvenience to multiple individuals and businesses in the community. His repeated traffic offences undermined the road safety system. The Applicant’s offending includes two episodes of violent offending, including one where he threatened to stab the victim. The category that these offences come within, being violent offences, makes them very serious for the purposes of the Direction. In my view, the first is also very serious because of the level of violence and seriousness of the resulting injuries. The Applicant has been caught in possession of a firearm, ammunition, and other types of weapons. He has been sentenced to numerous periods of imprisonment. Imprisonment is generally the last resort in the hierarchy of sentencing options.