Ah-San and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 447
•6 February 2024
Ah-San and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 447 (6 February 2024)
Division:GENERAL DIVISION
File Number:2023/8729
Re:Shane Ah-San
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member A. Julian-Armitage
Date of Decision: 6 February 2024
Date of Written Reasons: 11 March 2024
Place:Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 14 November 2023 to not revoke the mandatory cancellation of the Applicant’s visa.
................................[SGD]........................................
Member A. Julian-Armitage
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – where the Applicant does not pass the character test – where the applicant has a substantial criminal record - whether there is “another reason” why the decision to cancel the Applicant’s visa should be revoked – consideration of Ministerial Direction No. 99 – where Applicant’s offending included drug-related and weapons-related convictions - decision under review affirmed.
Legislation
Administration Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs (2019) 272 FCR 454
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162Tera Euna v Minister for Immigration and Border Protection [2016] AATA 301
Secondary Materials
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Member A. Julian-Armitage
11 March 2024
INTRODUCTION
Mr Shane Ah-San (‘the Applicant’) is a 34-year-old man,[1] born in New Zealand. He initially arrived in Australia in September 2001. The Applicant was last granted a Class TY Subclass 444 Special Category (Temporary) Visa (‘Visa’) on 25 August 2019.[2]
[1] R1, p 2, para 3.
[2] R1, p 2, para 3; A1, p 2, para 10.1.
On 29 March 2023, the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) notified the Applicant of the mandatory cancellation of the Visa pursuant to subsection 501(3A) of the Migration Act 1958 (Cth) (‘the Act’), because he did not pass the character test and he was serving a full-time custodial sentence.[3] On 30 March 2023, the Applicant made written representations to the Respondent requesting revocation of the cancellation of the Visa.[4]
[3] Tr1, G21, p 97.
[4] Tr1, G13, p 49.
On 14 November 2023, a delegate of the Respondent made a decision to not revoke the earlier mandatory cancellation.[5] This was delivered by email to the Applicant’s then representatives on the same date.[6] On 22 November 2023, the Applicant lodged the instant application in this Tribunal seeking review of the non-revocation decision.[7] I am satisfied that this Tribunal has jurisdiction to review the non-revocation decision pursuant to section 500(1)(BA) of the Act.
[5] Tr1, G3, p 11-32.
[6] Tr1, G3, p 13.
[7] Tr1, G2, p 4-10.
The hearing of this application took place at Brisbane on 22 January 2024. The Tribunal heard oral evidence from the Applicant, and the following witnesses, who had also provided written statements to the Tribunal: Mr Samuel Fred Luteru, Ms Tatyana Ellen Naoupu Tusa, Ms Georgina Noelani Telesi, Mr Aaron Afele, Mr Abel Afele, Ms Motu Mosogau Heather and Mr Nicholas Sefo. The Tribunal was also in receipt of written references filed on behalf of the Applicant, from Cecilia Prichard, Litara Ioane, Roger Sapati Afele.
The Tribunal also received untested written evidence which was consolidated into an agreed Exhibit Register,[8] a true and correct copy of which is attached to these Reasons and marked ‘Annexure A’.
[8] Both the Applicant’s and Respondent’s representatives confirmed the accuracy of the Exhibit Register to this Tribunal by email on 18 and 19 January 2024 respectively.
LEGISLATIVE FRAMEWORK
The revocation of the mandatory cancellation of visas is governed by the provisions in subsection 501CA(4) of the Act. Relevantly, it provides that:
The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the requisite representations pursuant to s 501CA(4)(a) of the Act.
There are, therefore, two issues presently before the Tribunal:
(a)whether the Applicant passes the character test; or
(b)whether there is another reason why the decision to cancel the Applicant’s Visa should be revoked.
Does the Applicant pass the character test?
The parties agree that it is without question that the Applicant does not pass the character test.[9] His failure of the test arises as a result of his ‘substantial criminal record’ for which he was sentenced to a term of imprisonment of 12 months or more[10] having been sentenced to a term of imprisonment of 7 years in 2022, with a parole eligibility date of 12 June 2023.[11]
[9] See Exhibit A1, p 1, para 1; Exhibit R1, p 5, para 19.
[10] See ss 501(6)(a) and 501(7)(c) of the Act.
[11] Tr1, G7, p 52.
Accordingly, I find that he does not pass the character test and cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
Is there another reason for the revocation of the cancellation of the Applicant’s Visa?
In considering whether there is another reason to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) of the Act to comply with any directions made under the Act. In the present case, Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction’ or ‘Direction 99’) applies.[12]
[12] Direction No. 99 commenced on 3 March 2023. It replaces Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, the Direction contains several principles that must inform a decision maker’s application of the considerations relevant to the decision. The principles that are found in paragraph 5.2 of the Direction are as follows:
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6
Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the
non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account, and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind the Government’s commitment to protecting the Australian community from harm resulting from criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
There is no material before the Tribunal that indicates that the Applicant has committed any offences in any other country.[13] However, he has amassed a significant criminal history in this country. In terms of sentencing episodes, the Applicant’s criminal history runs from June 2008 up until December 2022, and spans approximately 23 offences. In addition, the Applicant’s offending has encompassed a significant number of traffic offences (about 44 such offences in total) which add to the nature of the Applicant’s criminal history and in my view must be considered when making a determination in respect to this Primary Consideration 1.
[13] Tr1, G10, pp 32-34.
As can be gleaned from the Applicant’s criminal history and traffic history, his offending has been consistent since June 2008 until December 2022. The 20 plus offences entered in his criminal history span about 6 sentencing episodes. He has a demonstrated pattern of offending which is strongly flavoured by violence, drug trafficking and an obvious disrespect of lawful authority clearly demonstrated by his repeated convictions for the same genre of offences that can be categorised as follows:
·9 convictions involving acts of violence, including Robbery with actual violence armed/used personal violence, and about 8 convictions for Unlawful supply of weapons type offences, in addition to the Wilful damage, Trafficking in dangerous drugs and Possession of property suspected of being proceeds of an offence under the Drugs Misuse Act convictions.
·Within the realms of failure to comply with the requirements of lawful authority, there are about 5 entries for convictions in respect to Breach of bail conditions offences, 2 convictions for Contravene direction or requirement, 2 convictions for Contravene an order about information necessary to access information stored electronically and an Obstruct police conviction.
As mentioned above, the Applicant has also compiled a long traffic history throughout his residence in this country which amounts to some 44 traffic offences committed between 2008 and 2019.[14] The traffic offences are dominated by Unlicenced driving, with some 16 counts of Failure to display L plates, 14 Learner driver without instructing person seated beside driver, 13 convictions for Exceeding speed limits, a Failure to stop at yellow lights conviction, 2 counts of Use of unregistered motorbike and 1 each of Vehicle label/plate cancelled/lost/stolen/destroyed, Cross continuous line dividing lanes on multi lane road and Driver with open licence recently expired less than 1 year.
[14] Exhibit Tr2, TB5, 141-147.
The Applicant’s convictions in his criminal history can be summarised as follows:
Court Date of conviction Offence Sentence Beenleigh Magistrates Court 20 June 2008 Breach of Bail Condition Fined: $200.00
No conviction recorded
29 July 2008 3 x Breach of Bail Condition Fined: $350.00
No conviction recorded
27 July 2009 Breach of Bail Condition Conviction Recorded
Not further punished
Beenleigh District Court 27 July 2009 Robbery with Actual Violence Armed/In Company/Wounded/Used Personal Violence Imprisonment: 2 years Parole Release Date fixed at: 27 July 2009 Wilful Damage Beenleigh Magistrates Court 2 November 2016 Contravene Direction or Requirement Fined: $100.00
No Conviction Recorded
Richlands Magistrates Court 26 June 2019 Contravene Direction or Requirement Fined: $200.00 26 June 2019 Obstruct Police Officer Fined: $250.00 Brisbane Supreme Court 12 December 2022 Possess Utensils or Pipes etc of Use Summary Offences dealt with in Supreme Court
Conviction Recorded
Not Further Punished
Possession of Property Suspected of Being the Proceeds of an Offence under Drugs Misuse Act 2 x Contravening Order about Information Necessary to Access Information Stored Electronically Imprisonment: 3 months, concurrent
Parole Eligibility Date: 12 June 2023
Unlawful Supply of Weapons Imprisonment: 12 months Unlawful Supply of Weapons C/E Weapon 2 x Unlawful Supply of Weapons Category D/H/R Weapon 2 x Unlawful Supply Weapon Category A, B or M 2 x Unlawful Supply of Weapons Category D/H/R Weapon and Short Firearm Imprisonment: 2 years 6 months Trafficking in Dangerous Drugs Imprisonment: 7 years
Furthermore, the Applicant’s traffic convictions can be summarised in the below table.
Result Date Traffic Offence/Infringement Penalty 11/01/2008
Failed to display L plates as learner driver Fine: $120 Learner driver without instructing person seated beside driver Fine: $120 19/01/2008
Learner driver without instructing person seated beside driver Fine: $120 Failed to display L plates as learner driver Fine: $120 08/02/2008
Learner driver without instructing person seated beside driver Fine: $120 Failed to display L plates as learner driver Fine: $120 20/02/2008 Demerit point suspension until 19/05/2008 19/03/2008 SPER suspension until 05/08/2008 16/05/2008
Learner driver without instructing person seated beside driver Fine: $120 Failed to display L plates as learner driver Fine: $120 18/06/2008 Demerit point suspension until 17/09/2008 19/08/2008
Fail to stop at yellow light Fine: $225 Learner driver without instructing person seated beside driver Fine: $120 Failed to display L plates as learner driver Fine: $120 17/09/2008 Demerit point suspension until 16/12/2008 29/11/2008
Learner driver without instructing person seated beside driver Fine: $120 Failed to display L plates as learner driver Fine: $120 04/02/2009 SPER suspension until 24/04/2009 19/06/2009
Learner driver without instructing person seated beside driver Fine: $120 Failed to display L plates as learner driver Fine: $120 29/06/2009 Failed to display L plates as learner driver Fine: $120 22/07/2009 Demerit point suspension until 21/10/2009 06/08/2009
Learner driver without instructing person seated beside driver Fine: $350 Failed to display L plates as learner driver Fine: $350
Conviction
21/08/2009 SPER suspension until 27/08/2009 25/09/2009 Demerit point suspension until 24/12/2009 17/06/2010
Failed to display L plates as learner driver Fine: $160 Learner driver without instructing person seated beside driver Fine: $160 26/06/2010 Learner driver without instructing person seated beside driver Fine: $160 27/07/2010 Good driving behaviour option until 26/07/2011 18/10/2010
Learner driver without instructing person seated beside driver Fine: $160 Failed to display L plates as learner driver Fine: $160 17/11/2010 Demerit point suspension until 16/05/2011 21/12/2010
Learner driver without instructing person seated beside driver Fine: $160 Failed to display L plates as learner driver Fine: $160 14/12/2010
Failed to display L plates as learner driver Fine: $160 Learner driver without instructing person seated beside driver Fine: $160 Exceeding speed limit by more than 20km/h but not more than 30km/h Fine: $333 12/01/2011 Demerit point suspension until 11/07/2011 29/09/2011 SPER suspension until 11/04/2012 14/11/2011 Exceeding speed limit by at least 13km/h but not more than 20km/h Fin: $200 18/03/2013
Failed to display L plates as learner driver Fine: $176 Learner driver without qualified instructing person (O license for >1 year) Fine: $176 28/06/2013 Fail to comply with defect notice Fine: $330 16/04/2013 Demerit point suspension until 15/07/2013 28/05/2013
Unlicensed driving Fine: $400
Disqualified for 6 months
Convicted
Disqualification until 27/11/2013 22/08/2013 SPER suspension until 30/04/2014 25/10/2013 Exceed speed limit in speed zone by less than 13km/h Fine: $146 23/12/2013 Exceed speed limit by more than 30km/h but not more than 40km/h Fine: $513 21/01/2014 Demerit point suspension until 20/04/2014 23/08/2014 Exceed speed limit by less than 13km/h Fine: $146 06/06/2015 Exceeding speed limit by at least 13km/h but not more than 20km/h Finalised interstate 15/04/2015 SPER suspension until 05/12/2015 01/07/2015 Failed to display L plates as learner driver Fine: $182 19/09/2015 Exceed speed limit by less than 13km/h Fine: $151 07/07/2015 Demerit point suspension until 06/10/2015 28/03/2016 Exceed speed limit by less than 13km/h Fine: $157 08/04/2016 Exceed speed limit by more than 30km/h but not more than 40km/h Fine: $549 09/05/2016 Exceed speed limit by more than 20km/h but not more than 30km/h Fine: $392 09/05/2016 Demerit point penalty 2 or more exceeding speed limit >20km/h offences in 12 months 07/06/2016 Failed to display L plates as learner driver Fine: $188 10/04/2016 SPER suspension until 05/05/2016 26/04/2016 Demerit point suspension until 25/07/2016 31/05/2016 Demerit point suspension until 30/08/2016 05/07/2016 Demerit point suspension until 04/10/2016 29/07/2016 SPER suspension until 24/09/2016 02/11/2016 Use of unregistered motorbike Fine: $200 and conviction 02/11/2016 Vehicle label/plate was found cancelled/lost/stolen/ destroyed or damaged Fine: $100 and conviction 02/11/2016 Failing to wear helmet on an offroad quad bike Fine: $150 and conviction 03/12/2016 Learner driver without instructing person $195.00 fine 13/12/2016 Demerit point suspension until 12/03/2017 17/01/2017 Demerit point suspension until 16/04/2017 12/03/2017 SPER suspension until 04/04/2017 02/08/2017 SPER suspension until 25/10/2017 28/09/2017 Exceed speed limit by less than 13km/h $168 fine 10/08/2018 Use of unregistered motorbike $201 fine 11/09/2018 Cross continuous line dividing lanes on multi lane road $104 fine 22/09/2018 Exceed speed limit by less than 13km/h $174 fine 26/12/2018 Driver with open license recently expired less than one year $200 fine 29/05/2019 SPER suspension
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
I will consider each in turn.
The nature and seriousness of the Applicant’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
(h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Paragraph 8.1.1 considerations
Sub-paragraph 8.1.1(1)(a): the essence of this area of the Direction provides for the types of offences committed within the genre of sub-paragraph (i), (ii) or (iii) are viewed very seriously by the Australian Government and the Australian community. The Applicant’s offending, in particular, the offence of Robbery with actual violence armed/in company/wound used personal violence falls squarely within sub-paragraph (i) and therefore favours a finding that the offending has been very serious.
Sub-paragraph 8.1.1(1)(b): this area of the Direction refers to the types of crimes that may be considered serious by the Australian Government and the Australian community. It is without question that the Applicant’s offending in relation to Obstruct Police and Trafficking in dangerous drugs are the sorts of offences that fall within the ambit of sub-paragraph (ii), in that the “end users” of the dangerous drugs are, arguably, vulnerable members of the community due to their addictions. Furthermore, the Obstruct Police offence is clearly conduct that falls within the scope of sub-paragraph 8.1.1(1)(b)(ii) and as such favours a finding that his offending has been serious.
Sub-paragraph 8.1.1(1)(c): in the application of this sub-paragraph, I am precluded from taking into consideration sentences imposed for:
(a)Any violent offending the Applicant may have committed against women or children[15];
(b)Acts of family violence;[16] and
(c)Any sentence received relating to conduct whereby the Applicant caused a person to enter into or become a party to a forced marriage.[17]
[15] Paragraph 8.1.1(1)(a)(ii) of the Direction.
[16] Paragraph 8.1.1(1)(a)(iii) of the Direction.
[17] Paragraph 8.1.1(1)(b)(i) of the Direction.
The Applicant’s offending does not involve the types of crimes for which I am precluded from considering in determining the seriousness of the offending. That still leaves a considerable number of offences for which the Applicant has been convicted that fall within the ambit of this sub-paragraph. One need only consider the sentence imposed by the Brisbane Supreme Court on 12 December 2022 of 3 terms of lengthy custodial sentences consisting of 7 years, 2 ½ years and 12 months to come to the finding that the Applicant’s offences can only be viewed as very serious and I so find. This view is supported by the fact that the imposition of a custodial sentence is the last resort in the sentencing hierarchy.[18] I agree with the Respondent’s view that the Applicant received these substantial sentences on the basis that he led an organised criminal enterprise selling drugs and firearms with the sole intent to profit.[19] Over and above these sentences, the Applicant was also sentenced to a 2 year term of imprisonment by the Beenleigh District Court in 2009,[20] bringing the amount the Applicant was sentenced to imprisonment to a total of in excess of 12 years overall.
[18] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].
[19] Exhibit R1, p 6, para 27.
[20] The Tribunal notes that with respect to that sentence, the Sentencing Court ordered that the Applicant be released on parole with the date fixed at 27 July 2009, being the sentencing date.
Sub-paragraph 8.1.1(1)(d): two questions arise for consideration within this sub-paragraph. The first requires an assessment of the frequency of the Applicant’s offending. The commission of over 60 offences (including the traffic offences) over a period of about 12 years satisfies me that the offending cannot be viewed as anything other than frequent. The second question is whether the offending indicates a trend of increasing seriousness. The Applicant’s criminal and traffic histories clearly indicate a trend of increasing seriousness from minor traffic offences, such as Failure to display L plates, to the Armed robbery with violence, and drug trafficking and weapons offences, resulting in long terms of imprisonment being imposed.
It is clear to me that the frequency of the Applicant’s offending and the undeniable increase in seriousness of the crimes support a finding that his offending has been very serious in nature.
Sub-paragraph 8.1.1(1)(e): the Applicant’s offending has, without doubt, had a cumulative effect due to both its frequency and increased seriousness. As I understand the material, there is little more than the account of the offence upon the victim of the robbery with violence complaint before me.[21] Whilst this Tribunal has not been furnished with a victim impact statement, logic would dictate that the level of violence the victim suffered would have a long term impact, if not physically, most certainly psychologically. Without going into the details of the violence experienced by the victim on the date of the offence, it cannot be characterised as anything but appalling.
[21] Exhibit Tr2, TB1, p 1-3.
The other significant effect of the Applicant’s criminal activities is that he was ultimately joined by his younger brothers in the illicit enterprises of dangerous drug dealing and supply of firearms. The fact that the Applicant has purportedly grown up without the guidance of a father should have instilled the need in him to be a positive role model for his siblings, which should have resulted in alienating them from his criminal activities, rather than allowing their participation in the offending.
I am of the view that the cumulative effects discernible from the Applicant’s offending, cumulatively favours a finding that his unlawful conduct in Australia has been very serious.
Sub-paragraph 8.1.1(1)(f): As mentioned above, the Applicant came to Australia in September 2001 and departed for short periods in June 2005, August 2016 and August 2019.[22] On the latest 2 occasions, the Applicant failed to declare his criminal history on his inbound passenger cards.[23] In cross-examination, the Applicant agreed that he had been convicted and sentenced to a term of imprisonment (2 years with immediate parole). He told this Tribunal that he had no excuse for providing the false statement. However, in re-examination he changed his evidence, stating that he thought he didn’t have to declare the convictions as he hadn’t been in gaol and thought that conviction meant going to gaol.
[22] Exhibit Tr1, G20, p 95.
[23] Exhibit Tr1, G18, p 93; G19, p 94.
I am of the view that the only safe finding is that the evidence in respect to the incorrectly completed cards is unclear. It is not known whether the recorded negative answer was motivated by the Applicant deliberately wanting to secure his smooth entry back into Australia and remain here or whether, in truth, he made a genuine mistake by thinking that a conviction meant actual time spent incarcerated. Given that state of the evidence relevant to this sub-paragraph, I am led to a finding slightly in favour of the Applicant.
Sub-paragraph 8.1.1(1)(g): from my understanding of the material, there is no reference to any prior written formal warning about the consequences of the Applicant committing any further offences relevant to his visa status allowing him to remain in this country. Therefore, this sub-paragraph is not relevant.
Sub-paragraph 8.1.1(1)(h): there is nothing before me to suggest that the Applicant has actual convictions in New Zealand or elsewhere for that matter. Hence, this sub-paragraph has no relevance.
Conclusion about the nature and seriousness of the Applicant’s conduct
Upon applying each of the relevant sub-paragraphs contained in paragraph 8.1.1(1) of the Direction to the evidence, I am satisfied that the evidence before me leads me to the conclusion that the totality of the Applicant’s unlawful conduct in this country has been very serious which I so find.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Sub-paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.
Sub-paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
It is clear from the nature of the Applicant’s offending that were he to engage in further criminal offending in the nature of his past criminal history, or any other serious conduct, in the realms of such as his violent, drugs-related and weapons-related offending, there is little doubt that such conduct, in all probability, would cause physical, psychological and financial harm to members of the Australian community. Furthermore, I agree with the Respondent that such harm could be on an “extreme scale” given the consequences of methylamphetamine use and the inherent danger firearms pose.[24] In addition, were the Applicant to engage in further traffic offending, a similar outcome is foreseeable, with the Australian community being exposed to harm on a similar level and in the same sense as the above offending. The only difference would be that the harm exposes a broader range and more random sector of the community, namely all road users, which could have catastrophic results.
[24] Exhibit R1, p 9, para 39.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
I have considered all of the Applicant’s rehabilitation attempts (per the table below in these reasons) together with a pre-sentence psychological report dated 6 December 2022 and conducted by a forensic psychologist of Brookfield Psychology. This report was produced for sentencing purposes in relation to the Trafficking in a dangerous drug, 6 counts of Unlawful supply of weapons, 2 counts of Unlawful supply of weapons category D/H/R weapon and short firearm, Possession of property suspected of being the proceeds of an offence under Drugs Misuse Act and Contravening order about information necessary to access information stored electronically. The forensic psychologist’s opinion[25] in respect to the Applicant’s overall risk of re-offending is stated as:
“this appears to be medium when assessed with the LS/RNR from what he revealed during clinical interview … Mr Ah-San identified several risk factors for general re-offending. These were: Criminal History (medium risk); Leisure/Recreation (medium risk); and Companions (medium risk)”
[25] Exhibit Tr2, TB4, p 125 at 18.5.
To the extent that I understand the forensic psychologist’s conclusions and recommendations, the Applicant’s risk of re-offending stands at medium with this level of risk lowering over time and underpinned by the need to abstain from “illicit substances, continue to engage in lawful employment, and increase his circle of prosocial friendships and activities.”[26] The report also recommends that the Applicant engage with a psychologist in order to self-report his abstinence and address his offending behaviour and mental health issues.
[26] Exhibit Tr2, TB4, p 129 at 21.3.
The Applicant’s risk of re-offending was also assessed by Queensland Corrective Services[27] and was classified as a Risk of Reoffending Prison Version score 7, which translates as a prisoner “who pose[s] a moderate risk of further general offending.”[28]
[27] Exhibit Tr2, TB6, p 215.
[28] Exhibit Tr2, TB6, p 215.
I acknowledge that the Applicant has, of late, voiced remorse for his offending and that he has undertaken a number of rehabilitation courses (see table below) in the main, seeking to address his drug addiction and mental health issues, and has also engaged with counselling in relation to his anxiety and depression and other issues. Whilst this level of engagement is to be recognised, I still harbour grave concerns that, given the most recent clinical assessment finding that the Applicant is a medium risk of re-offending, the rehabilitation undertaken has not been tested and thus, the Applicant’s offending risk may still stand at a similar level. I note the Respondent’s concerns in this regard and am inclined to agree.
Information and evidence on the recidivist risk of the non-citizen re-offending including evidence of rehabilitation
As previously mentioned, and based on the materials before me, the Applicant has sought and completed a range of courses aimed at addressing drug, alcohol and mental health related issues. There is also evidence of the Applicant completing various volunteer and community initiatives. These efforts have been summarised in the table below. Where relevant, I will consider these more fulsomely in the reasons that follow.
Date Organisation/Program Engagement Type Activity Details Outcome/Result February 2022 – July 2022 “Busy Hands, Hearts and Minds” program
Local Drug Action Team of the Alcohol Drug Foundation[29]
Volunteer and mentoring engagement
Tasks which included weekly community outreach at “Street Church”, volunteering at a soup kitchen at Logan Central, volunteering at local barbershop
Activities aimed at helping people who are homeless or otherwise marginalised
- November 2023 Udemy
Course 1: “Addiction & Mental Health (Dual Diagnosis) Integrative”
Course 2: “Addiction & Mental Health – Chemically Speaking Two”[30]
Online rehabilitative course Course on mental health topics Certificate of completion for Course 1 awarded on 28 November 2023, noting 12.5 hours
Certificate of completion for Course 2 awarded on 24 November 2023, noting 2 hours
December 2023 Universal Class
Course 1: “Drug and Alcohol Abuse 101”
Course 2: “Understanding Addictions”
Online rehabilitative course Course on drug, alcohol and addiction topics Certificate of completion for Course 1 awarded on 1 December 2023, noting 7 contact hours
Certificate of completion for Course 2 awarded on 10 December 2023, noting 10 contact hours
May 2023 BUSY Ability
Pre-employment program[31]
Development / engagement program at correctional centre Activities included developing work preparation sills such career guidance, resume and letter writing and interview preparation Certificate of completion awarded on 11 May 2023 May 2023 Training Employment Support Service Education/training course - Statement of attainment of competency as part of Certificate 2 in Hospitality issued on 10 May 2023[32] May 2023 BSI Learning Education/training course - Statement of attainment of competency as part of Certificate 2 in Workplace Skills issued on 16 May 2023[33] [29] A1, p 25.
[30] A1, 121-122.
[31] A1, p 126.
[32] A1, p 127.
[33] A1, p 128.
Assessment of recidivist risk
It is unfortunate that the Applicant did not provide this Tribunal with an updated clinical report in relation to his level of recidivist risk such that I would be able to make a finding as to whether his risk of re-offending is either still medium, or whether the above mentioned courses have had any effect in lowering that risk. I have previously espoused my concerns that the Applicant’s rehabilitation efforts remain untested in the community and do not resile from that position based on the material and the Applicant’s own evidence during the hearing. I note the Applicant’s oral evidence was that his relationship with his wife and any tensions between them has a major effect on his mental state which has given rise to his drug use. Further, the Applicant stated that he would use drugs as a coping mechanism for his mental state due to his father’s abandonment. He gave evidence that he now manages those emotions by vocalising his feelings. However, I agree with the Respondent’s position, that the Applicant’s co-offenders were his 2 brothers, one of which the Applicant stated he plans to live with should he be released into the community. This runs afoul of his own contention that one of the major aspects preventing re-offending will be not associating with the types of people he was involved with when in the community and offending. This need to disassociate from previous non-prosocial people was also a pivotal factor identified by the forensic psychologist when identifying the aspects that would lower the Applicant’s recidivist risk, as explored in the above reasons of this decision.
Furthermore, and in respect to the Applicant’s relapse plan of talking to people when he finds himself depressed and needing to manage his emotions such that he does not fall back into drug use, his witnesses before this Tribunal, including a family member, testified that they know of his offending, but did not know that he had a drug addiction. In circumstances where the witnesses gave evidence that they were aware of the Applicant’s addiction to drugs, this was a result from them being present in Court when he was sentenced for his criminal offending, when they first learnt of the drug dependency that he struggles with. It, therefore, follows that he has not been able to rely on this aspect of his relapse plan in the past as a means to lower risk.
It is also noteworthy that, as can be gleaned by the nature of the rehabilitation courses the Applicant has engaged in, that the major focus has been within the scope of drug use and addiction. However, there was a strong financial aspect to the Applicant’s offending, the weapons charges alone demonstrating a strong commercial enterprise. Hence, it is fair to say that whilst the courses undertaken may well have provided the Applicant with a certain rehabilitative benefit, there is little material before me in terms of courses the Applicant has engaged in with the view to rehabilitation that have dealt with some of the very serious and repetitive offences for which he was convicted and incarcerated.
In addition, and as an indicator of the Applicant’s paucity of rehabilitation when dealing with anger and violence, are the two incidents which have taken place in detention with the Applicant being aggressive with departmental officers involving threats of violence. I acknowledge this was addressed by his then legal representatives with the contention that the Applicant was provoked. This may well have been the case, however, it nevertheless is an indicator that the Applicant still has unresolved insight into anger management that he needs to address.
Accordingly, I find that the Applicant represents an unresolved and unknown current level of recidivist risk. It is safe to find that his level of recidivist risk is currently no different to what it was when assessed at the time of his sentencing.
Conclusion: Primary Consideration 1
With respect to the weight attributable to this Primary Consideration 1, I find:
(1)The nature and seriousness of the totality of the Applicant’s conduct to date to have been very serious;
(2)That were the Applicant to re-offend in any aspect of his history, it could give rise to very serious physical, psychological, financial and potentially catastrophic harm to his victims and others who could suffer the consequences of such conduct should it be repeated, such that it is so serious that any risk of re-offending would be unacceptable to the Australian community; and
(3)That I have found, in respect to recidivist risk, that the Applicant represents an unresolved and currently unknown recidivist risk and that the risk of re-offending is no different to what it was at the time of his most recent incarceration.
On my consideration and analysis of all the material, I am led to the finding that this Primary Consideration 1 confers a heavy level of weight against revocation of the mandatory cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
I am satisfied, and the parties agree, that this Primary Consideration 2 is not applicable.[34] I allocate neutral weight to this consideration.
[34] R1, p 7, para 42.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
The Direction requires decision-makers to have regard to the strength, nature and duration of an Applicant’s links to the Australian community. There are four requisite considerations to be addressed in this paragraph 8.3. I will address each in turn.
On the evidence before me, it appears that the Applicant’s immediate family for the purposes of Primary Consideration 3, as well as minor children to be considered for the purposes of Primary Consideration 4, are as follows:
Immediate family members:
·Georgina Noelani Telesi (Applicant’s wife);
·FT (Applicant’s step-daughter, who has since turned 18 years of age, but was a minor at the time of the hearing);
·KA (Applicant’s minor daughter);
·PA (Applicant’s minor daughter);
·JA (Applicant’s minor son);
·Asenati Ah-San (Applicant’s mother);
·Shamish Toma Ah-San (Applicant’s brother);
·Shaun Ah-San (Applicant’s brother); and
·Shalom Toma Ah-San (Applicant’s brother).
With respect to other family members, the Applicant has claimed a large number (some 70 people) of relatives in Australia, including minor children, who are purportedly either his nephews or nieces, aunties, uncles, cousins-in-law, sisters-in-law and grandmother.[35] Unfortunately, there is nothing before me indicating that he has a close relationship with the vast majority of these relatives. Nor was there any evidence led to indicate the relevance these people have in terms of this Primary Consideration 3.
Paragraph 8.3(1): Consideration of the impact of this decision on the Applicant’s immediate family members
[35] Exhibit A1, p 103-108.
The first requirement here is to identify the Applicant’s immediate family in Australia who are citizens, permanent residents or persons who have the right to remain indefinitely in Australia. These people are his mother, who is a New Zealand and Samoan citizen[36] (presumably on a Special Category 444 visa with the right to remain here indefinitely). The Applicant’s wife, Georgina Telesi, is an Australian citizen, as are his 3 minor children and his step-daughter. As to the status of his 3 brothers, I am not able to determine their situation as there is no material before me in this respect. I note that the Applicant’s sister-in-law gave evidence at the hearing to this matter, stating that her husband was in a similar situation as the Applicant, which I took to mean that his visa had also been revoked.
[36] Exhibit Tr1, G9, p 65.
As previously mentioned, the only member of the Applicant’s immediate family who provided any material is his wife, Georgina Telesi. Her undated statement outlines the relationship that they have forged over the 17 or so years that they have been together. She claims that the Applicant embraced her now 18-year old daughter when he first was introduced to her at 11 months old and that they have an ‘inseparable bond”. She goes on to say that his absences have:
“cast a shadow over our family. Our children, especially during significant life events, keenly feel the void left by their father’s absence. Shane’s childhood was marred by the absence of his father, and he is deeply pained to mirror that experience for his children … Upon his bail release in 2020, Shane made commendable efforts to reintegrate into society.”[37]
[37] Exhibit A1, p 23.
As I understand the evidence, for the purposes of this paragraph 8.3(1), the Applicant’s mother, wife, biological children and stepdaughter comprise ‘immediate family in Australia”. I do not include his siblings for the reasons given above. I am satisfied that the extent of the Applicant’s ties to his wife, children, stepdaughter and mother lead me safely to a finding that a certain, but not determinative, measure of weight be allocated to the strength, nature and duration of the Applicant’s ties to Australia, and I so find.
Paragraph 8.3(2): Consideration of the Applicant’s ties to Australia having regard to a child/ren who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely
This element in Primary Consideration 3 requires a determination of whether more weight should be given to the Applicant’s ties to Australia where he has Australian citizen biological children. I refer to the biological children’s birth certificates and note that they are all Australian citizens.[38] Given the amount of time that the Applicant has been incarcerated, it is safe for me to assume their mother has taken the lion’s share of the parenting of these children, with limited input from the Applicant given the circumstances and the significant periods of time he has been absent from their lives. In addition, mention was made of his siblings’ children with whom he claims to have a relationship. Similar issues, but to a lesser degree apply here given the lengthy periods of incarceration the Applicant has served. It is noteworthy that there are no claims made in respect to these latter children that the Applicant place a parental role to any of them. This leads me to a finding that the Applicant’s ties to Australia, relevant to this sub-paragraph, should be given some weight, but not determinatively, in favour of revocation of the mandatory cancellation of his visa.
[38] Exhibit Tr1, G10 – G12; p 79-81.
Paragraph 8.3(3) Strength, nature, and duration of ties with any family or social links generally
This paragraph deals with the strength, nature and duration of the ties the Applicant may have with other family members not elsewise dealt with, and the social links the Applicant may have in Australia. These ties must be to persons who are Australian citizens, permanent residents or persons who have the right to remain in Australia indefinitely. Whilst the Direction is silent as to how weight is to be allocated to these ties, I will deal with the Applicant’s ties and allocate weight in his favour in accordance with the strength, nature and duration of those ties.
As mentioned above, the Applicant is from a very large Samoan family, and the family members have been listed in the material before the Tribunal. Amongst these, he claims to be the uncle to several minor children, residing in Brisbane. However, the evidence is that he has 3 younger brothers and 6 minor nephews and nieces. Hence, the other minor children I will deal with as more distant relatives. Without detracting from his claimed relationship with the more distant relatives, they are scattered throughout the country and as far away as Perth, Sydney and Melbourne without any evidence led as to the nature of his ties to them in more detail than, in the main, claiming to be their uncle. Similarly, there is a paucity of evidence in relation to the other relatives claimed and his relationship with them.
Paragraph 8.3(4): Consideration of the nature of the Applicant’s ties to the Australian community having regard to the length of time he has resided here
This component of Primary Consideration 3 requires me to look at the length of time the Applicant has resided in the Australian community and to take account of the following three elements:
(a)whether the Applicant has been ordinarily resident here during his formative years.
The Applicant first came to Australia in September 2001 when he was 11 years old. He is currently 34 years old which means that he has spent more than half of his life here. It is, therefore, safe to find that he has been ordinarily resident here for some of his formative years and as such this component of paragraph 8.3(4) affords him some, but not determinative weight in his favour.
(b)whether the Applicant has positively contributed to the Australian community during his time here.
As stated above, the Applicant has spent more than half of his life in Australia. Notably, there have been 2 elements that have restricted his ability to be a productive member of the Australian community. Firstly, when he has been in gainful employment, he has struggled with a football injury causing him to have to regularly “rest” his leg and thus not be able to maintain the physical requirement of some of the positions he has held. On the evidence, the issue with this leg injury has not resolved and could well cause him similar employment sustainability issues in future should he be returned to the Australian community. The other element has undoubtedly been his criminal enterprises and offending over the years and subsequent lengthy incarceration. Hence, this component of paragraph 8.3(4) does not strengthen the Applicant’s position.
(c)can the weight be allocable to the strength of the Applicant’s ties to Australia based on the length of time he has spent in the Australian community be lessened because (1) he did not spend his formative years here and (2) he began offending soon after arriving here?
I have previously found that the Applicant spent a large portion of his formative years in Australia. However, his criminal history dates back to 2008 and has progressed ever since. It is arguable that his offending began soon after his arrival, but it most certainly began at a very young age, and grew ever since.
I am, therefore, of the view, and find, based on my analysis of the material and evidence, that sub-paragraphs 8.3(4)(a)(i) to (iii) of the Direction affords the Applicant a moderate amount of weight in favour of revocation of the mandatory cancellation of his visa mainly on the basis of his age on arrival and when he commenced offending, which was some 7 years later but at a very early age.
Conclusion: Primary Consideration 3
In applying the relevant components of Primary Consideration 3, I find that the evidence in its totality points to a finding that this Primary Consideration 3 is of moderate weight in favour of exercising the power to revoke the mandatory cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
I must determine whether the non-revocation of the Applicant’s Visa would be in the best interests of minor children in Australia that would be affected by the decision (per paragraph 8.4(1) of Direction 99). This primary consideration only applies with respect to children under the age of 18 years at the time of the decision (paragraph 8.4(2) of Direction 99).
There is evidence that the Applicant’s three biological minor children (identified above) are residing in Australia. He also has a step-daughter[39] who is now 18 years old and as such I will not deal with her in relation to this paragraph. The minor children are aged 13, 11 and 6 respectively. The Direction mandates that I consider the best interests of these minor children. The Applicant contends that a non-revocation decision and his subsequent deportation to New Zealand would have a devastating impact on his Australian-born children (and his Australian spouse) and would disrupt their lives and well-being.[40] The Applicant’s main concerns about his children appear to be that growing up without a father in [the children’s] lives would be destructive to their development and growth into adulthood.[41] As such, the Applicant is asserting that a non-revocation decision would leave his children fatherless, which would be detrimental to their development.[42]
[39] Tr1, G9, p 69; R1, p 13, para 49; A1, p 1, para 4.
[40] A1, p 3, para 12.
[41] Tr1, G9, para 70.
[42] Tr1, G9, p 70; R1, p 13, para 50.
In considering this Primary Consideration 4, the role the Applicant has played in parenting his children has to be viewed against a backdrop of the substantial periods he has spent incarcerated. As I have mentioned above, on 12 December 2022 the Supreme Court in Brisbane convicted the Applicant and sentenced him with a head sentence of 7 years imprisonment for the offence of Trafficking in dangerous drugs (together with several counts of Unlawful Supply of Weapons, Possession of utensils for use, Possession of property suspected to be proceeds of an offence and Contravening order about information necessary of access information stored electronically). His pre-sentence custody was declared as 740 days.[43] There is no way of viewing the Applicant’s sentence other than as lengthy, leaving the mother of his children in the invidious position of having to parent their children on her own for long periods during which, the children were in the main, going through formative stages.
[43] R1, p 6, para 25.
Hence, it is safe to find that the Applicant’s paternal input into his children’s rearing has already been directly and significantly impacted by virtue of his criminal offending and subsequent imprisonment. During the lengthy periods of his incarceration, his children have already been fatherless as he has not been able to exercise any kind of parental role of substance and limiting his paternal input significantly. As I have previously mentioned, his step-daughter is now an adult and no longer lives at home, so in essence his parental role relevant to this consideration is no longer relevant.
Findings on biological children
I have sought to apply the relevant sub-paragraphs at 8.4(4) of the Direction to the evidence before me as it concerns the 3 minor biological children. This has led me to the finding that it is in the best interests of the 3 minor children for this Tribunal to set aside the mandatory cancellation of the Applicant’s visa. I am satisfied that the best interests of the 3 children moderately weigh in favour of the Tribunal exercising the power to revoke the mandatory cancellation of the Applicant’s visa.
Findings on other relevant minor children
As previously mentioned, the Applicant claims to be the uncle of not just his brothers’ 6 children, but also many other minor children, some of which are residents in Brisbane and some in different parts of Australia. They are numerous in number with little evidence led in relation to the vast majority, with the exception of one of his brothers’ children. Their mother gave oral evidence at the hearing attesting to a strong relationship that her children have with their uncle. Unfortunately, there was little information provided in relation to how these children have maintained their relationship with the Applicant given the lengthy period of his incarceration. No evidence was proffered as to how they maintained their relationship during that time, or currently for that matter. Hence, I will not make any finding or assumptions.
Conclusion: Primary Consideration 4
The cumulative best interests of the minor children which include the Applicant’s brothers’ children viewed in light of the provisions in sub-paragraph 8.4(4) of the Direction, have led me to the finding that this Primary Consideration 4 is weighted moderately in favour of the revocation of the mandatory cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[44] The Direction further explains:
‘This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.5(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.’[45]
[44] Paragraph 8.5(3) of the Direction.
[45] Paragraph 8.5(4) of the Direction. Paragraph 8.5(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.
With reference to the propositions in paragraph 8.5(1) of the Direction, this sub-paragraph is expressed thus:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
This Applicant has breached the Australian community’s expectations by his record of criminal offending in this country, which is evidenced by repeated breaches of Australian laws. Therefore, the Australian community, ‘as a norm’ expects the Australian Government not to allow him to remain in Australia.
The Direction also states that visa cancellation or refusal, or non-revocation of a mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa.
In particular, the Australian community expects that the Australian Government can and should refuse entry to
non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:[46]
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
[46] Paragraph 8.5(2) of the Direction.
It is clear from the Applicant’s history that he harbours a poor level of respect for Police, prison guards and detention centre officers which engages the effect of sub-paragraph (d) for Contravening Order about Information necessary to access Information stored Electronically, Obstruct Police Officer and Contravene Direction. In addition to these offences which were committed on separate occasions, the Applicant has also been involved in a prison riot and most recently he was involved in an aggressive verbal altercation with a detention centre visits officer reported to have been abusive.
The remaining question is whether there are any factors which modify the Australian community’s expectations. This question is informed by the principles in paragraphs 5.2(4), (5) and (6) of the Direction. In summary these are:
(a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa;
(b)the Australian community has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[47]
(c)Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age;[48]
(d)the community’s level of tolerance will rise based on the length of time a non-citizen has spent in this country and, in particular, whether their formative years were spent here;
(e)the nature of a non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify a visa outcome that is not adverse to the non-citizen;[49] and
(f)if a non-citizen’s unlawful conduct is inherently of the type captured by any of the categories stipulated in paragraph 8.5(2)(a)-(f)(inclusive) of the Direction, then even strong countervailing considerations may not assist a non-citizen even where the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
[47] Paragraph 5.2(4) of the Direction.
[48] Ibid.
[49] Paragraph 5.2(5) of the Direction.
In relation to sub-paragraph (a) above, the term “limited stay” is not defined in the Act. In the present case, the Applicant held Class TY Subclass 444 Special Category (Temporary) visas since his first arrival when he was 11 years old with the most recent one issued on 25 August 2019. This type of visa permits New Zealand citizens to remain in Australia without any limitation on their duration of stay. Therefore, the Applicant did not hold a visa that can be classified as a limited stay visa. Hence, this sub-paragraph does not apply.
In relation to sub-paragraph (b), the Applicant has lived in Australia, save for a couple of trips back to New Zealand, since he was 11 years old. He is currently 34 years old. He has attended school and had a work history in Australia. He has also fathered 3 children and has a step-daughter in Australia. In terms of the participation he may have made in the Australian community during his stay here, his time in Australia cannot be seen as “short”. Therefore, the Australian community’s tolerance is not lowered by this part of the principles in 5.2(4) of the Act.
With respect to sub-paragraph (c) I refer to paragraph 80 supra. The Applicant has resided in Australia since 2001 and has spent over half of his life in this country. This means that the Australian community’s tolerance of criminal or other serious conduct by this Applicant is higher.
With respect to sub-paragraph (d) I am of the view that the length of time the Applicant has spent here gives way to the raising of the community’s level of tolerance for his offending.
With respect to (e), I am not of the view that, on the one hand, the balancing between the harm that could be caused by the Applicant re-committing some of his more serious criminal activities and on the other hand, whatever countervailing considerations may work in his favour, is necessarily a principle referable to the community’s expectations for present purposes. This is due to my view that the Applicant’s offences, including violence and trafficking in hard drugs and weapons have been of such a serious magnitude as to dispel any applicable countervailing considerations.
Having regards to the considerations around the relevant sub-paragraphs of these Reasons, I am of the view that the Australian community’s expectations are not modified to the extent that the community does not have a higher than usual tolerance of the Applicant’s criminal conduct. Due to the serious nature of the Applicant’s offending, I am of the view that this Primary Consideration 5 compels a finding that the community expects that the Australian Government can and should refuse to set aside the mandatory cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 5
Primary Consideration 5 confers a heavy level of weight in favour of this Tribunal not exercising the power to revoke the mandatory cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
Other Consideration (a): Legal consequences of the decision
As best as I understand the parties’ position, neither has raised any issues that may be applicable to this Other Consideration (a). Therefore, I allocate neutral weight to it.
Other Consideration (b): Extent of impediments if removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
Paragraph 9.2(1)(a): the Applicant is 34 years old and in good health save for a leg injury which happened playing sport. In addition, he claims to suffer from mental health issues resulting from not having had the benefit of having a father when he was growing up. There was no evidence proffered to dispel his ability to be treated for this injury and his mental health issues to a similar standard as that which he could avail himself of here in Australia. There is little doubt that any and all of the Applicant’s propounded health issues both physical and mental can be treated in New Zealand.
Paragraph 9.2(1)(b): the evidence clearly demonstrates that there is no issue around any substantial language barriers impeding the Applicant’s path in New Zealand. This Tribunal has found that “New Zealand is culturally and linguistically similar to Australia”[50].
[50] Tera Euna v Minister for Immigration and Border Protection [2016] AATA 301, at [101].
Paragraph 9.2(1)(c): this component deals with any social, medical and/or economic support available to the Applicant in New Zealand. To the extent that he may require medical support for any of his issues in this regard, be it mental or physical, he will be able to access the public health system in that country to a similar standard as he would here in Australia. In respect to economic support the Applicant can expect in New Zealand, he has experience in a number of areas. He has worked in a bakery, been a bouncer, pick packed, and worked in asbestos removal and steel fixing. It is safe to find that he would be able to get employment in one of these fields particularly if he was to have the operation on his leg which he claims he was going to undergo prior to being incarcerated. Presumably, he would also be able to avail himself of some form of “social security” payments in the beginning until he found employment. In relation to social support, the Applicant told this Tribunal that he still has some relatives in New Zealand that, although he stated that he doesn’t communicate with them, he could presumably rekindle those relationships with until he settled in to the community in New Zealand.
Findings on impediments
I am of the view that this Other Consideration (b) confers a moderate level of weight in favour of the revocation of the mandatory cancellation of the visa.
Other Consideration (c): Impact on victims
Neither party has agitated the relevance of this Other Consideration (c). I do not view it as relevant and treat it neutrally.
Other Consideration (d): Impact on Australian business interests
Paragraph 9.4(1) mandates that an assessment be undertaken on the impact on Australian business interests the removal of the Applicant would have. The Applicant has attested to the fact that upon release into the Australian community, he has a full-time job waiting for him as a steel fixer with SAS Steel-Fixing Pty Ltd.[51] Paragraph 9.4(1) stipulates that evidence with respect to an employment link would generally only be given weight where a non-revocation decision would significantly compromise the delivery of a major project, or of an important service in Australia. The Applicant does not appear to have further particularised how his prospective employment as a steel fixer interacts with these considerations, and the Tribunal has no evidence of the Applicant being involved in a relevant major project. Therefore, I allocate neutral weight to the Other Consideration (d).
[51] Exhibit A2, p1, para 4.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)Legal consequences of the decision: is of neutral weight.
(b)Extent of impediments if removed: is of moderate weight in favour of the revocation of the mandatory cancellation of the visa.
(c)Impact on victims: is of neutral weight.
(d)Impact on Australian business interests: is of neutral weight.
CONCLUSION
Pursuant to s 501CA(4)(b) of the Act, there are two alternate conditions for exercising the power to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted above, the Applicant does not pass the character test.
In considering whether I am satisfied if there is another reason to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: Heavy weight against revocation of the mandatory cancellation.
·Primary Consideration 2: Neutral weight as irrelevant.
·Primary Consideration 3: Moderate weight in favour of the revocation of the mandatory cancellation.
·Primary Consideration 4: Moderate weight in favour of the revocation of the mandatory cancellation.
·Primary Consideration 5: Heavy weight against revocation of the mandatory cancellation.
I have found that the combined weights I have allocated to Primary Considerations 1 and 5 respectively, are sufficient to outweigh the combined weights I have allocated to Primary Considerations 3 and 4 and Other Consideration (b).
A holistic view of the evidence relevant to the Primary and Other Considerations in the Direction therefore favours affirming the Respondent’s decision under review made on 14 November 2023.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 14 November 2023 to not revoke the mandatory cancellation of the applicant’s visa.
I certify that the preceding 99 (ninety-nine) paragraphs are a true copy of the reasons for the decision herein of Member A. Julian-Armitage.
................[SGD].......................
Associate
Dated: 11 March 2024
Date of Decision: 6 February 2024
Date of Hearing: 22 January 2024
Solicitor for the Applicant: Oliver Jones, Too Roo Migration Lawyers
Solicitor for the Respondent: Chris West, Sparke Helmore
“ANNEXURE A”
EXHIBIT DESCRIPTION OF EVIDENCE PARTY DATE OF DOCUMENT DATE RECEIVED A1. Applicant Collated Bundle of Materials (pp 1-159) A - R1. Respondent Statement of Facts, Issues and Contentions (pp 1-17) R 08.01.2024 Tr1. Section 37 G-Documents (G1-G25; pp 1-140) R - 29.11.2023 Tr2. Tender Bundle (TB1-TB8; pp 1-484) R - 08.01.2024 A2. Applicant Closing Submissions A 25.01.2024 R2. Respondent Closing Submissions R 01.02.2024
Key Legal Topics
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Immigration
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Administrative Law
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