Flores and Minister for Home Affairs (Migration) [2018] AATA 1264 (11 May 2018)

Last Updated: 17 May 2018

Flores and Minister for Home Affairs (Migration) [2018] AATA 1264 (11 May 2018)

Division: GENERAL DIVISION

File Number(s): 2018/0958

Re: Luther Castor Flores

APPLICANT

And Minister for Home Affairs

RESPONDENT

DECISION

Tribunal: Senior Member M. Griffin QC

Date: 11 May 2018

Place: Sydney

The Tribunal affirms the decision under review.

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

Senior Member M. Griffin QC

CATCHWORDS

MIGRATION – five year resident return visa – mandatory cancellation – revocation – failure to past the character test – Ministerial Direction 65 – protection of the Australian community – nature and seriousness of conduct – risk to the Australian community –
best interests of minor children – expectations of the Australian community –
non-refoulement considerations – other considerations – decision affirmed

LEGISLATION

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

CASES

Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666; [2009] AATA 47

SECONDARY MATERIALS

Direction No. 65, Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA

REASONS FOR DECISION

Senior Member M. Griffin QC


11 May 2018

RESPONDENT’S STATEMENT OF FACTS, ISSUES AND CONTENTIONS

1. By application dated 28 February 2018, Mr Luther Castor Flores (Applicant) seeks review of a decision of a delegate of the Respondent (Minister) dated 19 February 2018 not to revoke, under s.501CA of the Migration Act 1958 (Cth) (the Act), a decision under s.501(3A) of the Act to cancel the Applicant’s Class BB Subclass 155 Five Year Resident Return visa (the visa).
2. The issues are whether the Applicant meets the character test as defined in s.501(6) of the Act, and if he does not, whether there is another reason why the mandatory cancellation should be revoked (s.501CA(4)(b)(ii)).
3. 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.

FACTS

Background

4. The Applicant, a citizen of the Philippines, first arrived in Australia on 30 November 1985 at age 14. He is now 46 years old and was the holder of the visa at the time of cancellation. He returned to the Philippines on 19 August 1992 for a period of six years, and again in 1999 to 2000 for ten months. Otherwise, he has resided in Australia.

Criminal History

5. The Applicant’s National Police Certificate dated 13 June 2017 reveals numerous offences, which include numerous drug offences. The Applicant gave evidence that these offences involved “ice”, i.e., methylamphetamine.

MANDATORY VISA CANCELLATION AND REVIEW APPLICATION

6. On 23 June 2017, the Minister’s Department of Home Affair’s (Department) issued the Applicant a notice that the visa had been cancelled under s.501(3A) of the Act).
7. On 24 June 2017, the Applicant made representations seeking revocation of the cancellation decision.
8. On 19 February 2018, the delegate decided under s.501CA(4) of the Act not to revoke the mandatory cancellation, and the same day the Applicant was notified of the decision.

ISSUES

9. The issue to consider is whether the Administrative Appeals Tribunal (the Tribunal) should exercise the power in s.501CA(4) in favour of revoking the mandatory cancellation of the Applicant’s visa and must determine therefore:
   • (a) whether the Applicant passes the character test (as defined in s.501); and
   • (b) if he does not, whether it is satisfied that there is another reason why the cancellation decision should be revoked.
10. The issues in this matter are whether the Applicant is of good character and if not, whether there are reasons to overturn the Minister’s decision by reference to the criteria of Direction No 65 – Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (Direction 65). In this case, the Applicant has been sentenced to a term of imprisonment of 12 months or more, and does not pass the character test as he has a substantial criminal record as defined s. 501(7)(c) of the Act. The ultimate issue for determination is whether there is another reason why the cancellation of the Visa should be revoked.

LAW

Legislation

Mandatory cancellation of visa under s.501(3A) of the Act

11. Under s.501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the Minister is satisfied that, relevantly:
    • (a) the person does not pass the character test because of the operation of s.501(6)(a), on the basis of s.501(7)(a); and
    • (b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution (e.g. prison), for an offence against a law of the Commonwealth, a State, or a Territory: s.501(3A)(b).

The character test

12. The character test is defined in s.501(6) of the Act. Relevantly, a person will not pass the character test if they have a ‘substantial criminal record’: s.501(6)(a). The phrase ‘substantial criminal record’ is defined in s.501(7), and includes circumstances where a person has been sentenced to a term of imprisonment of 12 months or more.
13. Failure of the character test arises as a matter of law: Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666; [2009] AATA 47 at [63]. In the present case, the Applicant has been sentenced to numerous terms of imprisonment. He has, without doubt, a “substantial criminal record” as defined.

Power to revoke cancellation decision

14. When a visa is mandatorily cancelled pursuant to s.501(3A), the Minister must give the person concerned notice of the decision, by written notice which sets out the original decision (s.501CA(3)(a)(i)), particulars of the relevant information (s.501CA(3)(a)(ii)), and invite the person to make representations to the Minister in relation to the revocation of the original decision (s.501CA(3)(b)).
15. Pursuant to s.501CA(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.
16. A decision under s.501CA(4) of the Act involves an assessment and evaluation of the factors for and against revoking the cancellation.
17. A determination under s.501CA(4) must be carried out in accordance with any written directions under the Act: s.499(2A). In considering a request for revocation of a mandatory s.501(3A) cancellation, the decision-maker must comply with Direction 65.

Ministerial Direction No. 65

18. Direction 65 provides that the decision is to be approached within the framework of the principles in paragraph 6.3 of Direction 65 (Principles).
19. 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 interest of minor children in Australia; and
    • (c) expectations of the Australian Community.
20. 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;
    • (c) impact on Australian business interests;
    • (d) impact on victims; and
    • (e) extent of impediments if removed from Australia.
21. Accordingly, the determinative issue in this matter is whether there is another reason why the cancellation should be revoked.

DISCRETIONARY ISSUES DISCUSSED

The Protection of the Australian Community

22. This factor involves consideration of:
    • (a) the nature and seriousness of the non-citizen’s conduct to date; and

(b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

Nature and seriousness of conduct

23. The Applicant’s offences are serious. He has a history of repeated offending from 2004 to 2017.
24. Cumulatively, the offences are aggravated by the fact that he has committed several of them while under obligations to the Court, and continued to reoffend despite being given an unambiguous warning on 21 July 2014 that visa cancellation may be considered if he committed further offences or otherwise failed the character test in the future.

Risk to the Australian community

25. In assessing whether the Applicant represents an unacceptable risk of harm to the Australian community, paragraph 13.1.2 of Direction 65, provides that:

“the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases”.

26. Regard must be had cumulatively, to:
    • (a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
    • (b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the Applicant re-offending.
27. I conclude, on the evidence, that the Applicant will, on his history, continue to re-offend, despite his protestations to the contrary. His type of offending, i.e., drug offences and property offences will likely cause harm to individuals. I note unsuccessful attempts to change his ways.
28. Turning to the risk of reoffending, the Applicant asserts that he will not reoffend and that he can “change" and the “chance of [him] reoffending is zero”. However, the evidence suggests that the Applicant has not addressed the underlying causes of his offending behaviour, including his drug abuse problem. The Applicant has engaged in drug rehabilitation programs with lack of success. I cannot be satisfied that the Applicant will not relapse as he has done in the past.
29. The evidence discloses that the Applicant has a network of family and friends who have provided letters of support, however, the Applicant consistently continued to offend.
30. I consider that the protection of the Australian community weighs strongly against revocation of the cancellation.

Best Interests of Minor Children in Australia

31. The Applicant claims to have three minor children from two former partners: Zachery (16yrs), Katerina (12yrs), and Kaeciana (11yrs).
32. The Applicant’s oral evidence was that he has had very little contact for most of the children’s lives. While I consider weight should be given to this issue, having regard to his lack of previous contact with his minor children and his history of drug taking, he is unlikely to be a positive influence.
33. Likewise there are minor children who are his nephews and nieces. In fact, all family members want the Applicant to stay for various reasons. Although this is always an important consideration, in this case, it assumes less weight than other considerations including the other primary considerations.
34. Refusal will, no doubt, affect his family and especially the minor children. However, this, I conclude, should in the overall circumstances, be given only moderate weight. I have formed this view even though I accept the evidence of some belated attempts to make contact with his minor children.

The Expectations of the Australian Community

35. Direction 65 indicates that non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. In this case, the Applicant has repeatedly committed the same or similar offences despite the imposition of parole conditions and the previous warnings. Therefore, I conclude that this consideration weighs substantially against the Applicant. I have formed this view, even though I recognise that the Applicant has lived in Australia since age 14, based upon the continued offending and the variety of his offending.

Non-refoulement considerations

36. In documents before the Tribunal, the Applicant claims that he cannot return to the Philippines because, as a person with a criminal record of involvement with illicit substances, he will likely be subject to state sanctioned violence. He claims, alternatively, that as a reformed drug addict, there is a risk he may relapse in the Philippines.
37. In oral evidence, the Applicant really did not pursue with any vigour this aspect of his case.
38. The Applicant’s assertions could not, on any level of assessment, ground a finding that Australia’s non-refoulement obligations are engaged. Further, notwithstanding any weight that the Tribunal attributes to the Applicant’s claimed risk of harm in the Philippines, in the circumstances of this case and given the Applicant’s offending history, the primary considerations of the protection and expectations of the Australian community under Direction 65 outweigh any considerations in favour of revocation, including the claims concerning non-refoulement obligations.
39. In any event, it is open to the Applicant to make an application for a protection visa, which would then compel the Minister to assess and determine his non-refoulement claims.

Other considerations

40. There are matters which are in the Applicant’s favour, however, these considerations overall, should carry reduced weight.
41. The Applicant has substantial ties to Australia, with his family and children residing in Australia. The family wish for him to remain. His mother and niece made a genuine and passionate plea in this regard. The Applicant’s family has stated that he assists with the care of his father, who suffered a stroke and now has unidentified care needs. If the Applicant is removed, this will undoubtedly impact negatively on his family and the Applicant himself.
42. Furthermore, it may be supposed that after a long absence from the Philippines, the Applicant will experience difficulties re-establishing himself.
43. I have also taken into account in the Applicant’s case, support and positive statements of referees as to his good character and behaviour. These statements are generally supportive of the Applicant’s case. Whilst I accept that the statements are genuine, they do not to my mind, outweigh other compelling considerations against his case in the discretionary exercise pursuant to the principles of Direction 65.
44. In relation to the other considerations required to be taken into account by reference to Direction 65, for example, impact on business interests and impact on victims, I consider that these have little or no material relevance and therefore carry no appreciable weight in the assessment of the Applicant’s case.

CONCLUSION

45. I am of the opinion that considerations of the protection of the Australian community and expectations of the Australian community weigh heavily against revocation of the mandatory cancellation of the Applicant’s visa and outweigh the considerations in favour of revocation.
46. Having regard to the Applicant’s lack of good character, I cannot be satisfied that there is another reason why the mandatory cancellation should be revoked. The decision under review should be affirmed.

I certify that the preceding 46 (forty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member M. Griffin QC

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

Dated: 11 May 2018

Date of hearing:	1 May 2018
Applicant:	In person
Solicitors for the Respondent:	Karwan Eskerie