Assessment of risk to the Australian community
- Ali applied to the Tribunal, for the review of decision taken by delegate of the Minister on 24thApril 2018, for non-revocation of the compulsory cancellation of his visa. He is living in Australia since 1988 with his partner Ms. Bibi. They are living together since then without formal registration of their marriage under the Australian Marriage Act 1961. They have two adult children and three grandchildren as well who are Australian citizens.
- After working as a full-time employee for around 20 years, he got injured severely in workplace in 2009 that he was unable to work. In recent years, his partner Ms. Bibi is his full-time caretaker. Despite being convicted for 23 times between April 1993 and April 2017 i.e. for 24 years and his extensive criminal record, that majorly involved common assault and severe domestic assault to his caretaker partner, he and his legal representative is defending it as few minor offenses within a period of 20 years. The duration of 20 years is still so much time for continuously getting involved in criminal acts and he had been convicted 23 times in 24 years. Furthermore, either Mr. Ali told a lie to his legal representative or his legal representative listed only 6 offenses between 1997 and 2017, he had committed 23 in all as listed in the National Police Certificate.
- Previously, till he got severely injured, he used to be convicted for not so serious offenses such as driving while disqualified and drunk and drive cases. However, they were still not minor crimes, beginning from 2010 after injury and his inability to work, the aggression was visible in the serious common assault and domestic assaults conducted by him. It shows that his mental condition was not also stable after getting injured and he started acting violently due to anger and frustration. The most recent criminal offense he conducted was a year before he applied to the tribunal. His partner suffered serious facial injuries and assault that she called police for which, he was imprisoned for 9 months including non-parole period and was released in January 2018 subjected to supervision. It seems the severity of his crime and violent acts and it seems no need to consider the nature of the offenses conducted by him whatever be the justification of Mr. Ali.
- The records of the Department of Immigration and Border Protectionshows his departure date as July 1989 and first arrival date as January 1996 but, the court records show that he appeared before the court three times between 1993 and 1994. The lacuna between this time-period is highly confusing. However, according to the Department, a questionnaire was sent to Mr. Ali to which, he did not respond.
- Ali had Subclass 155 Five Year Resident Return visa which was cancelled in June 2017. This visa requires the person to meet the resident requirement, to have benefit ties with Australia or a family member who has or applied for Resident Return Visa.According to it, if he has been absent from Australia for a period of 5 years but, there is no such information with the Immigration Department of Australia.
- His visa was cancelled under subsection 501 (3A) and 501 (6) (a) of the Migration Act 1958 because he failed character test. He was committing crimes continuously for last 24 years according to National Police Record and he was getting Subclass 155 Five Year Resident Return visa after every five years.Neither, the Immigration Department nor the Minster ever noticed his criminal record while he was in Australia and being convicted so many times.
Reference to Relevant Legal Cases and Legislative Provisions
The criminal conduct of Mr. Ali might be harmful for the community. In Masaka v.Minister for Immigration and Citizenship [2012], while assessing the risk to the community, the tribunal considered certain factors such as the seriousness and nature of the conduct and risk of repetition of such conduct in future.Mr. Ali has been convicted 23 times and more recently, the aggression and gravity of his criminal conduct is increasing. He has been convicted 12 months before for severe domestic assault suffered by his partner. If detention, community service and imprisonment have not brought changes in his conduct rather he is becoming more and more violent, there is certainly a risk for the community of Australia.
In Suleiman v Minister for Immigration and Border Protection [2018], the court considered factors such as international non-refoulement obligations, nature and duration of ties, effect on business interests in Australia, effect on victims and extent of obstructions. In case of Mr. Ali, non-refoulement obligations do not exist. However, he has significant association with Australia, as he had lived for 30 years in the country and has contributed to its economy by having involved for around 20 years as an employer. He has been found to be caring and helpful towards his family. However, he has not been found engaged in any community or social activities. Furthermore, being in Australia for such a long period, and being aware of the Australian laws, he has been found involved in domestic violence and poor driving and drunk and drive cases. It proves that he continuously disregarded the laws of Australia. The impact on Australian Business Interests does not account in the case of Mr. Ali. The victim of domestic violence was his partner, who supported him strongly in writing and verbally before the tribunal. The objective validity of her claim that he has realized his mistake is difficult to be assessed. If Mr. Ali has to return to Fiji, it would be an impediment in the form of removal from the support of family, as they would not be returning to Fiji with him. Mr. Ali would have healthcare disadvantage as well because the healthcare facilities are not as good as in Australia. However, he is not unfamiliar with the country as he lived there till 29 years of age. So, owing to his continuous aggression and violent behavior, he would have to return to Fiji, as he will not be allowed to reside in Australia after cancellation of his resident return visa.
The matters related to the visa cancellation or immigration, are resolved taking into consideration, the Ministerial Decree. After the decision of Minister or their delegates regarding visa cancellation or refusal, the matter can be taken to tribunal which is also referred to as Administrative Appeals Tribunal (AAT). To appeal from a decision of Administrative Appeals tribunal Act 1975, the party to the proceeding before the AAT might appeal to the Federal Court regarding question of law by any of the decision of AAT in that particular proceeding. In this context, the questions of law might include whether the AAT refused procedural justice to the party or the AAT mistakenly understood a statute or law related to the proceedings.
Factors considered by the tribunal
In general, the appeal from the AAT is taken into consideration by a single judge of the Federal Court. However, in some conditions, the appeal is heard by a Full Court of the Federal Court such as, if one of the members of the AAT is a judge of the Federal Court or presidential member and the Chief Justice of the Federal Court. The Federal Court can also transfer the appeal to the Federal Circuit Court.
To increase the probability of success for an appeal from the decision taken by the AAT, it is essential for the applicant to persuade the judge that the decision taken by the AAT was an ‘error of law’, which contributed to the decision that is being appealed in the Federal Court. The ‘errors of law’ include denial to procedural justice to the party or incorrect interpretation of a statute or law related to the party. Even after demonstration of ‘error of law’, the judge might dismiss the appeal if the decision of the AAT is found correct because the judge hearing the appeal regarding the decision taken by the AAT, cannot consider new information or evidences and does not call witnesses, but only read all the relevant documents and listen to legal arguments from both the parties.
Taking into consideration, all these points, Mr. Ali should be advised that he should appeal the decision from the tribunal to the Federal Court only if he is sure of his documents and strong legal arguments, otherwise, the decision will be affirmed in the Federal Court as well. He should present his legal representative with strong arguments to achieve probable success in the Federal Court, as the judge will only read the legal documents presented previously before the AAT and will hear legal arguments from both the parties to the appeal. If he or she will not be satisfied with the legal argument of legal representative, he or she would consider the decision of the AAT correct and Mr. Ali would lose an opportunity.
In order to achieve resident return visa, one must be a permanent resident of Australia. They should be a former permanent resident whose last permanent visa has not been cancelled or who lost or renounced their citizenship. If the person is a permanent resident of Australia, he or she needs to have resided in the country for a total of at least 2 years within the last 5 years. Mr. Ali has applied for Resident Return visa Subclass 155 for a period of five years but, it has been cancelled by the Minister owing to his failure to pass character test. As he has been convicted for total of 23 crimes in 24 years of duration being a resident in Australia, he had failed to clear the character test.
The option available to Mr. Ali was only to apply to the AAT to revoke the decision taken by the Minister, for cancellation of his resident return visa. As tribunal has also affirmed the decision of the Minister considering risk to the Australian community due to violent criminal behaviour of Mr. Ali, he has no other option but to apply to the Federal Court of Australia if, he does not want to return to Australia. However, he should have to be well prepared with his arguments before the judge of Federal court because the judge of Federal Court does not look for new evidences and documents or information, but only considers the previously submitted evidences and documents before the AAT. The only thing Mr. Ali can do is to be prepared with his legal arguments or his legal representative should prepare strong arguments to present it before the judge so as to convince the judge to change the decision taken by the AAT. If he or his legal representative would fail to satisfy the judge, the previous decision would have been reaffirmed by the judge and there will be no option left to Mr. Ali but, to return back to Fiji leaving the family and all relatives in Australia.
References
AAT, AAT Bulletin (2018) Aat.gov.au <https://www.aat.gov.au/AAT/media/AAT/Files/AAT%20Bulletins/23-18.pdf>
Active Migration Australia, 155 Resident Return Visa (5 Years) – Active Migration Australia (2018) Active Migration Australia <https://www.activemigration.com.au/visas/resident-return/155-resident-return-visa-5-years/>
Commonwealth of Australia, How long will the process take? | Administrative Appeals Tribunal (2016) Aat.gov.au <https://www.aat.gov.au/migration-and-refugee-division/steps-in-a-review/how-long-will-the-process-take>
Department of Home Affairs, Resident Return Visa (Subclasses 155 and 157) (2018a) Homeaffairs.gov.au <https://www.homeaffairs.gov.au/trav/visa-1/155->
Department of Home Affairs, Returning Residents (2018b) Homeaffairs.gov.au <https://www.homeaffairs.gov.au/trav/ente/retu>
Department of Home Affairs, What documents do permanent residents need to return to Australia? (2018c) Homeaffairs.gov.au <https://www.homeaffairs.gov.au/lega/lega/form/immi-faqs/i-am-a-permanent-resident-of-australia-what-documents-do-i-need-to-return-to-australia>
Department of Home Affairs, Subclass 155 Visa (2018d) Homeaffairs.gov.au <https://www.homeaffairs.gov.au/visas/supporting/Pages/155/subclass-155-visa.aspx>
Department of Home Affairs, Meet the Resident Requirement (2018e) Homeaffairs.gov.au <https://www.homeaffairs.gov.au/visas/supporting/Pages/155/meet-the-resident-requirement.aspx>
Department of Home Affairs, Have ties of benefit to Australia (2018f) Homeaffairs.gov.au <https://www.homeaffairs.gov.au/visas/supporting/Pages/155/have-ties-of-benefit-to-Australia.aspx>
Federal Court of Australia, Makasa vs. Minister for Immigration and Citizenship [2012] FCA 321 (2 April 2012) (2012) Austlii.edu.au <https://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2012/321.html?query=>
Federal Court of Australia, Appealing from a Decision of the AAT (2018) Fedcourt.gov.au <https://www.fedcourt.gov.au/law-and-practice/guides/appeals/from-other-bodies/aat>
Federal Court of Australia – Full Court, Sullivan vs. Civil Aviation Safety Authority [2014] FCAFC 93 (25 July 2014) (2014) Austlii.edu.au <https://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCAFC/2014/93.html?query=>
Lindsay, Robert, Migration merits review and rights of appeal in Australia (2005) Classic.austlii.edu.au <https://classic.austlii.edu.au/au/journals/AIAdminLawF/2005/16.pdf>
Moor, Keith, What is the administrative appeals tribunal and how does it work (2018) Heraldsun.com.au <https://www.heraldsun.com.au/news/victoria/what-is-the-administrative-appeals-tribunal-and-how-does-it-work/news-story/f8c419884830d410a2064f0c5b7cd9f2>
Visa Bureau, Australia Resident Return Visa: Australian Visa Bureau (2018) Visabureau.com <https://www.visabureau.com/australia/resident-return-visa.aspx>
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