AAT Bulletin Issue # 8 – 25 Feb 2019

Citizenship

Boonruang and Minister for Home Affairs (Citizenship) [2019] AATA 147 (15 February 2019); Senior Member A Younes

CITIZENSHIP – refusal of application for Australian citizenship by conferral – general residence requirement – application of Ministerial discretion – whether close and continuing association with Australia – whether migrated to and established home in Australia – Australian citizen children – extended family in Australia – long term relationship with Australian citizen spouse – decision affirmed

Ghumaan and Minister for Home Affairs (Citizenship) [2019] AATA 200 (15 February 2019); Senior Member C Puplick AM

CITIZENSHIP – Applicant granted Australian citizenship – Applicant later found to have entered Australia with a forged passport – Applicant’s Australian citizenship revoked by the Minister – Applicant found guilty of migration offences for false and misleading statements on visa and citizenship application – whether revocation of citizenship is in the public interest – consideration of the “public interest” – whether discretion to revoke citizenship should be exercised – decision under review affirmed

Mabagos and Minister for Home Affairs (Citizenship) [2019] AATA 216 (15 February 2019); Senior Member C Puplick AM

CITIZENSHIP – refusal – whether applicant of good character – significant period of unlawfulness in Australia – consideration of applicant’s character – decision affirmed

Migration

CWGF and Minister for Home Affairs (Migration) [2019] AATA 179 (18 February 2019); Senior Member BJ Illingworth

MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record and does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – non-refoulement obligations – decision under review affirmed

Doan and Minister for Home Affairs (Migration) [2019] AATA 169 (18 February 2019); Mr T Eteuati, Member

MIGRATION – mandatory cancellation of applicant’s visa under s 501(3A) – Applicant failed to pass the character test – whether there is another reason why cancellation decision should be revoked – application of Direction No. 65 – how expectations of the Australian community are determined – decision affirmed

George and Minister for Home Affairs (Migration) [2019] AATA 180 (19 February 2019); Senior Member T Tavoularis

MIGRATION – non-revocation of mandatory cancellation of visa – expedited matter – Class TY Subclass 444 Special Category (Temporary) visa – where visa was cancelled under s 501(3A) because the Applicant did not pass the character test and had served a full-time term of imprisonment – whether discretion in s 501CA to revoke mandatory visa cancellation should be exercised – considerations in Direction No 65 – decision under review affirmed

Karabay and Minister for Home Affairs (Migration) [2019] AATA 167 (18 February 2019); Senior Member DJ Morris

MIGRATION – mandatory cancellation of a visa – consideration of discretion exercisable under s 501 of Migration Act – Ministerial Direction No. 65 – primary considerations – serious offending – attempted murder – previous pattern of aggression and violence – other considerations – whether complementary protection may be owed – decision under review affirmed

Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153 (15 February 2019); Deputy President Boyle

MIGRATION – Migration Act 1958 (Cth) – bridging visa – is the Tribunal satisfied that the Applicant passes the character test – whether a person would engage in the conduct identified in ss 501(6)(d)(i) and 501(6)(d)(ii) – Direction no. 65 – Annex A – application of the character test –– criminal charges in Australia not yet finalised – withdrawn charges – decision under review set aside and remitted with direction

Kheir and Minister for Home Affairs (Migration) [2019] AATA 146 (13 February 2019); Senior Member B Stefaniak AM RFD

MIGRATION – Class BC Subclass 100 Spouse visa – mandatory cancellation – failure to pass character test – Ministerial Direction No 65 – extensive criminal record – real risk of reoffending – substance abuse – mental health – best interests of minor children – extent of impediments if removed – strength, nature and duration of ties – decision affirmed

KJVC and Minister for Home Affairs (Migration) [2019] AATA 161 (15 February 2019); Ms K Parker, Member

MIGRATION – application for revocation of mandatory cancellation of visa – applicant a citizen of South Sudan – applicant does not pass character test – whether another reason to revoke decision to cancel visa – extended history of criminal offending – applicant served four separate prison terms – repeated domestic violence and serious driving-related offences – repeated contravention of apprehended violence orders, bail conditions and corrective orders made by the courts – court- ordered rehabilitation programs – whether Australian community would expect non-revocation – risk of the applicant reoffending – consideration of mitigating circumstances – applicant was a child soldier for the Sudan People’s Liberation Army in the late 1980’s – applicant arrived in Australia when he was 25 years old with wife and two eldest children – applicant developed alcohol habit or addiction – criminal offending occurred while under the influence of alcohol – applicant has lived in Australia for the last 15 years – applicant was gainfully employed for some of this time – best interests of applicant’s six children living in Australia – impact on wife – international non-refoulement obligations – extent to which applicant will face impediments settling in South Sudan – decision affirmed

Larkins and Minister for Home Affairs (Migration) [2019] AATA 210 (20 February 2019); Senior Member A Nikolic AM CSC

MIGRATION – Mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) Visa – request for revocation of visa cancellation – substantial criminal record – numerous violent offences – alcohol and illicit substance abuse – failure to pass character test – Ministerial Direction No. 65 applied to specific circumstances of case – decision under review affirmed

Maki and Minister for Home Affairs (Migration) [2019] AATA 217 (21 February 2019); Senior Member R Pintos-Lopez

MIGRATION – Mandatory cancellation of visa on character grounds – Whether to revoke cancellation – Where applicant has a substantial criminal record – Applicant does not pass character test – Whether there is another reason to revoke cancellation – Consideration of Ministerial Direction no. 65 – Decision affirmed

Meyrick and Minister for Home Affairs (Migration) [2019] AATA 168 (15 February 2019); Ms LM Gallagher, Member

MIGRATION – Class BF transitional (permanent) visa – non-revocation of mandatory cancellation of visa – applicant did not pass character test and had served term of imprisonment – visa mandatorily cancelled under subsection 501(3A) Migration Act 1958 (Cth) – whether discretion in subsection 501CA(4) to revoke mandatory visa cancellation should be exercised – Direction No. 65 – primary and other relevant considerations – protection of the Australian community from criminal or other serious conduct – nature and seriousness of the conduct – risk to the Australian community should further offences be committed – best interests of minor children – expectations of the Australian community – other relevant considerations – strength, nature and duration of ties to Australia – extent of impediments if removed from Australia – impact on victims – discretion should not be exercised to revoke visa cancellation – decision under review affirmed

Pele and Minister for Home Affairs (Migration) [2019] AATA 207 (21 February 2019); Senior Member T Tavoularis

MIGRATION – non-revocation of mandatory cancellation of visa – expedited matter – Class TY Subclass 444 Special Category (Temporary) visa – where visa was cancelled under s 501(3A) because the Applicant did not pass the character test and had served a full-time term of imprisonment – whether discretion in s 501CA to revoke mandatory visa cancellation should be exercised – considerations in Direction No 65 – decision under review affirmed

QJTT and Minister for Home Affairs (Migration) [2019] AATA 152 (13 February 2019); Dr M Evans, Senior Member

MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – substantial criminal record – Direction no. 65 – primary and other considerations – protection of the Australian community – best interests of minor children – expectations of the Australian community – international non-refoulement obligations – strength, nature and duration of ties to Australia – extent of impediments if returned to Afghanistan – meaning of “trend of increasing seriousness” – reviewable decision affirmed

Robertson and Minister for Home Affairs (Migration) [2019] AATA 164 (18 February 2019); Senior Member M Griffin QC

MIGRATION – Revocation of visa cancellation – failure to pass the character test – whether there is another reason why cancellation of the Applicant’s Class BB (Subclass 155) Resident Return visa should be revoked – Ministerial Direction No. 65 applied – primary considerations – protection of Australian community from criminal or other serious conduct – best interests of minor children in Australia – expectations of the Australian community – other considerations – strength, nature and duration of ties – extent of impediments if removed – decision under review affirmed

Tran and Minister for Home Affairs (Migration) [2019] AATA 125 (15 February 2019); Deputy President SA Forgie

MIGRATION – application for revocation of mandatory cancellation of visa – where applicant fails the character test – where substantial criminal record under Migration Act 1958 – risk of reoffending – best interests of minor children – other reason why cancellation decision should be revoked – decision set aside and substituted for decision revoking mandatory cancellation of visa

Wiki and Minister for Home Affairs (Migration) [2019] AATA 197 (20 February 2019); Senior Member M Griffin QC

MIGRATION – Class TY Subclass 444 Special Category (Temporary) visa – mandatory cancellation – failure to pass character test – Ministerial Direction No 65 – frequency of reoffending – traffic offences – domestic violence – disregard for Australian law – unacceptable risk of re-offending – strength, nature and duration of ties to Australia – extent of impediment if removed – best interest of minor children – decision affirmed

WSZB and Minister for Immigration and Border Protection (Migration) [2019] AATA 163 (18 February 2019); Deputy President BW Rayment OAM QC

MIGRATION – whether serious reasons for considering applicant committed serious non-political crime – consideration of “non-political crime” – decision under review affirmed

XFCS and Minister for Home Affairs (Migration) [2019] AATA 201 (20 February 2019); Senior Member R Cameron

MIGRATION – mandatory cancellation of visa – failure to pass the character test – serious and violent offending – Ministerial Direction No. 65 – where primary considerations outweigh other considerations – decision under review affirmed

ZJLB and Minister for Home Affairs (Migration) [2019] AATA 178 (19 February 2019); Senior Member BJ Illingworth

MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record and does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – non-refoulement obligations – decision under review set aside