AAT Bulletin Issue # 8 – 25 Feb 2019

The latest AAT Bulletin contains references to several citizenship & migration review decisions

The latest AAT Bulletin contains references to the following citizenship and migration review decisions:

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


Disclaimer: the above is a mere reproduction of a bulletin. The views there expressed might not reflect the views of the Department, the AAT or the courts. The law or policies might have changed between the writing and reading of this article. The author of this article and Migration Law Updates disclaim any liability for any action (or omission) on their part based on any information provided (or not provided) in this article and are under no obligation to keep the general public nor practitioners informed about the matters discussed in this article or any other matters, or any future changes to any of those matters. It is the responsibility of each practitioner to obtain access to primary sources of law and policy by themselves and to carry out their own research and come to their own conclusions on legislation, case law, policies and more. This article is not intended for the general public.


Sergio Zanotti Stagliorio is a Registered Migration Agent (MARN 1461003). He is the owner of Target Migration in Sydney. He can be reached at sergio@targetmigration.com.au