Reasonable success rate in the AAT on character cases
By Lorenzo Boccabella, Barrister-at-law and specialist in migration law
There is a reasonable success rate on review to the AAT on character cases and visa cancellation.
A recent and most unusual case is CMTK and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2335 (4 August 2023) where the person was convicted and jailed for offences involving the illegal export of Australian fauna. Here is the nature of the offences:
“17. The applicant's conduct, specifically that related to the applicant’s offending conduct, is viewed very seriously. The circumstances of the offence are contained in the remarks on sentence in the District Court of NSW and on appeal to the NSW Court of Criminal Appeal.
18. In summary, the offending conduct involved the applicant attempting to export regulated native specimens to either Taiwan or Hong Kong. He concealed the native specimens in parcels and lodging the parcels at a number of different post offices around Sydney in the period 20 November 2018 until 20 January 2020. The applicant personally lodged 7 parcels and the co‑offender (on behalf of the applicant) lodged another 10 separate parcels at various post offices located around Sydney.
19. The species that the applicant attempted to export included 4 live carpet pythons, 9 live shingleback lizards, 4 live saw-shell turtles, 1 deceased saw-shell turtle, a live red bellied black snake, 3 live eastern long-necked turtles, a live eastern bearded dragon, 8 common blue tongue skinks, 4 live blotched blue tongue skinks, 8 live eastern water dragons, 2 live diamond pythons, 1 deceased common blue tongue skink, 35 turtles (various species), 12 ball pythons, 25 tortoises (various species), 19 South American horned frogs, 12 snakes (various species), 1 milk snake and 1 twisted-necked turtle. The intercepted parcels contained false sender details and false information about the contents. Further, a total of 105 regulated native specimens and exotic specimens were found during the execution of the search warrant at the applicant’s premises. They consisted of a large number of different varieties of turtles, tortoises and snakes. The enterprise was found to be planned and sophisticated, spanning a period of some 14 months; motivated by reasons of financial gain.
20. During the investigations into the offending conduct, the applicant admitted to the offending and admitted to packing some of the parcels, posting them and intending to send them to Hong Kong and Taiwan. He admitted to providing false particulars and receiving offers for reptiles through Facebook. He also admitted that he was in possession of Australian native and exotic specimens and those specimens found at the premises were his collection.
21. In sentencing remarks of the District Court of NSW it was found, ‘[t]here was undue cruelty to specimens and that some suffered harm, and all suffered potential harm. On two occasions the specimens were located in socks or stockings and taped to polystyrene, on two other occasions deceased specimens were located in parcels’. The applicant and his co-accused were ‘entirely indifferent to the risk to the safety and welfare of the specimens being posted in such a way’.”
His sentence was 3 years and 10 months, 2 years before parole. He therefore had a mandatory cancellation of visa which was not revoked by the delegate. He had 2 Australian citizen young daughters to his first wife and a young son (also Australian citizen) to his second wife.
In essence it was the existence of his Australian citizen offspring which tipped the scales in his favour for a successful revocation of mandatory visa cancellation by the AAT. For the full text see:
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA//2023/2335.html
Another successful case before the AAT is PJBV and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2339 (1 August 2023).
Here a young man was convicted of having unlawful sexual intercourse with a young lady who was inebriated at the time and possibly also affected by drugs. In such circumstances she was not in a condition to consent to sexual activity by the male. He was sentenced to 3 years jail, non-parole period 2 years. He was Fijian Indian who came to Australia aged 10. He was assessed as a low risk of re-offending. The offences are fully described in the AAT’s decision. The AAT set aside the mandatory cancellation on the basis of the following factors in his favour:
1.he had a low risk of re-offending based on a psychological assessment;
2. he had genuine remorse and wrote a sincere letter of apology to the victim.
3. He had the support of his family and would continue rehabilitative treatment. The AAT concluded:
“86. The applicant is now 24 years of age. He has no prior criminal record. Reprehensible though his conduct is, it stands as an isolated incident. His behaviour on the night in question was deplorable. But after a detailed review of his offending and his history I consider that the callousness displayed on the day in question was out of character. It will, however, haunt him and his family and especially his parents for years to come. Moreover, as he himself recognised, his offending has caused extreme harm to the victim and her family.
87. Nevertheless, having due regard to the applicant’s age, remorse and lack of prior convictions, and given his pro-social family relationships, I consider that he should be given a second chance”
The full text of the decision is at :
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA//2023/2339.html
These 2 cases are recent examples of a fair and reasonable approach by the AAT. On Saturday 12 August 2023, I under a full root and branch analysis of the character regime and the associated cancellation of visas in a 4 hours intensive session.