AAT Bulletin Issue # 44 – 12 Nov 2018

Citizenship

Ahmadi and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 4189 (8 November 2018); Ms A Burke, Member

CITIZENSHIP – refusal of approval for Australian citizenship by conferral – whether satisfied of identity of applicant – whether the applicant is not of good character – whether the application for citizenship made by the applicant should be approved – decision under review set aside and remitted

Anton and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 4187 (6 November 2018); Dr M Evans, Senior Member

CITIZENSHIP – good character – considerations to be taken into account when assessing character – whether subsequent conduct of the Applicant shows he has reformed – time at which the tribunal must be satisfied of good character – Applicant involved in riot in immigration detention in 2009 – no subsequent criminal offences – minor traffic offence in 2012 – reviewable decision set aside and remitted with a direction that the Applicant satisfies the character test under s 21(2)(h) of the Australian Citizenship Act 2007 (Cth)

Rao and Minister for Home Affairs (Citizenship) [2018] AATA 4168 (6 November 2018); Senior Member K Raif

CITIZENSHIP – eligibility – citizenship by conferral – general residence requirement – whether applicant was a permanent resident during period of absence – whether decision-maker should exercise its discretion to treat period of absence from Australia as a period in which the applicant was present in Australia for the purpose of satisfying the general residence requirements – whether applicant can rely on more than one deeming provision – whether Applicant satisfies the special residence or defence service requirements – decision under review affirmed.

Zimelis and Minister for Home Affairs (Citizenship) [2018] AATA 4201 (9 November 2018); Deputy President Rayment QC

CITIZENSHIP – citizenship by conferral – residence requirements – whether the applicant had a close and continuing association with Australia – spouse and father to Australian citizen – annual visits to Australia – active search for employment in Australia – many positive relations with other Australian citizens – Ministerial discretion should be exercised – reviewable decision set aside and remitted to the respondent with the direction that the applicant satisfies ss 22(9), 21(2)(c) and (g) of the Australian Citizenship Act 2007.

Migration

FCFY and Minister for Home Affairs (Migration) [2018] 4184 AATA (8 November 2018); Dr L Bygrave, Member

MIGRATION – Class BF Transitional (Permanent) visa – mandatory cancellation – non-revocation – failure to pass character test – substantial criminal record – Ministerial Direction No. 65 – protection of the Australian community – nature and seriousness of conduct to date – risk to the Australian community if conduct repeated – best interests of minor children – expectations of the Australian community – other considerations – strength, nature and duration of ties – extent of impediments if removed – decision affirmed.

FSKY and Minister for Home Affairs (Migration) [2018] AATA 4183 (8 November 2018); Mr A. Maryniak QC, Member

MIGRATION – cancellation of spouse visa – applicant has substantial criminal record and does not pass character test – whether discretion to revoke mandatory cancellation should be exercised – two prior warnings – risk of applicant engaging in criminal conduct in Australia – consideration of ministerial direction – primary considerations – other considerations – decision affirmed

Le and Minister for Home Affairs (Migration) [2018] AATA 4126 (5 November 2018); Ms S Burford, Member

Migration – decision not to revoke mandatory cancellation of visa – two-day rule – character test – substantial criminal record – Ministerial Direction no. 65 – primary and other considerations – protection of the Australian community – best interests of minor children – expectations of the Australian community – nature and seriousness of criminal offending – risk of engaging in future criminal conduct – strength, nature and duration of ties to Australia – extent of impediments if returned to Vietnam – ‘statelessness’ and Vietnamese nationality – risk of indefinite detention – decision under review affirmed

MLQP and Minister for Home Affairs (Migration) [2018] AATA 4123 (31 October 2018); Senior Member The Hon. M Groom

MIGRATION – refusal to grant Safe Haven Enterprise visa – consideration of character test – primary considerations – protection of the Australian community from criminal or other serious conduct – expectations of Australian community – applicant does not pass the character test – discretion – non- refoulement obligations – decision under review set aside and substituted

PZZC and Minister for Home Affairs (Migration) [2018] AATA 4125 (2 November 2018); Ms A Burke, Member

MIGRATION – visa refusal – applicant is a stateless Palestinian born in Syria – applicant applied for a Safe Haven Enterprise (Class XE) visa – applicant does not pass character test in s 501(6)(a) – applicant not of good character on account of substantial criminal record – whether discretion to refuse visa should be exercised – applicant does not present unacceptable risk of re-offending – best interests of minor children in Australia – international non-refoulement obligations – decision under review set aside

Ruangsantikornkul and Minister for Home Affairs (Migration) [2018] AATA 4203 (9 November 2018); Dr L Bygrave, Member

MIGRATION – revocation of visa cancellation – applicant does not pass character test – whether another reason why the original cancellation decision should be revoked – Ministerial Direction No. 65 applied – primary considerations – protection of the Australian community – best interests of minor children in Australia – expectations of the Australian community – other considerations – strength, nature and duration of ties to Australia – extent of impediments if removed – decision under review affirmed

Smith and Minister for Home Affairs (Migration) [2018] AATA 4173 (7 November 2018); Senior Member C Puplick AM

MIGRATION – Class TY Subclass 444 Special Category (Temporary) visa – mandatory cancellation – non–revocation – failure to pass the character test – Ministerial Direction No 65 – criminal convictions – driving offences – drug offences – dishonesty offences – protection of the Australian community – expectations of the Australian community – strength, nature and duration of ties – impact on Australian business interests – extent of impediments if removed – decision set aside

ZRRD and Minister for Home Affairs (Migration) [2018] AATA 4185 (7 November 2018); Senior Member The Hon. M Groom

MIGRATION – Bridging E (Class WE) refusal under s 501 – whether the applicant passes the character test – where the applicant has a history of family violence offences – applicant does not pass the character test – whether the discretion should be exercised in the applicant’s favour – factors against grant outweigh factors for grant – decision under review affirmed