Barber and Minister for Home Affairs (Migration)

[2018] AATA 4304

Barber and Minister for Home Affairs (Migration) [2018] AATA 4304 (20 November 2018)

Division:General Division

File Number(s):      2018/5229

Re:Lee Barber

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Antoinette Younes

Date:20 November 2018

Place:Sydney

The Tribunal affirms the decision not to revoke the cancellation of the applicant’s Absorbed Person visa.

.......................[sgd].............................................

Senior Member Antoinette Younes

CATCHWORDS

MIGRATION – decision not to revoke section 501 visa cancellation – absorbed person visa – failure to pass character test – whether another reason why original decision should be revoked – Ministerial Direction No. 65 applied – protection of the Australian community – nature and seriousness of the conduct – long history of serious and repeated offending – risk to the Australian community – best interests of minor children in Australia – expectations of the Australian community – other considerations – strength, nature and duration of ties to Australia – impact on victims – extent of impediments if removed – decision not to revoke the cancellation of the applicant’s absorbed person visa affirmed

LEGISLATION

Migration Act 1958 (Cth) ss 34, 499, 501(3A), 501(6), 501(7), 501CA(4)

CASES

Minister for Immigration and Citizenship v Obele [2010] FCA 1445

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention)
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT)

International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR)

REASONS FOR DECISION

Senior Member Antoinette Younes

20 November 2018

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs (the Minister) on 31 August 2018 not to revoke the cancellation of the applicant’s Absorbed Person visa.[1] The delegate found that the applicant did not meet the character requirements of s 501 of the Migration Act 1958 (Cth) (the Act).

   [1] The applicant is taken to have been granted an Absorbed Person visa by operation of law on 1 September 1994, pursuant to s 34 of the Migration Act 1958.

2. For the following reasons, the Tribunal has concluded that the decision not to revoke the cancellation of the applicant’s visa should be affirmed.

   RELEVANT LEGISLATION

3. Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because that person has a substantial criminal record (s 501(6)(a)), and has been sentenced to a term of imprisonment of 12 months of more (s 501(7)(c)).

4. Section 501CA(4) of the Act provides that the Minister may revoke the original mandatory cancellation decision if the person makes representations in accordance with the invitation, and the Minister is satisfied that the person passes the character test (as defined by s 501), or that there is another reason why the original decision should be revoked.

5. The applicant was born in December 1967 and he is a national of New Zealand.  He came to Australia with his parents in 1978.  The applicant’s criminal history is extensive.[2]  Since 1987 and until April 2018, the applicant has been before the Courts in relation to over 110 offences, varying in seriousness. 

   [2] Exhibit A – G Documents, AFP National Police Certificate, dated 9 April 2018, pp. 24-34.

6. The following table summarises the applicant’s offending history.[3]

   [3] Ibid.

COURT DATE	OFFENCE	SENTENCE
12/08/1987	1)    Low Prescribed Concentration of Alcohol 2)    Driving unregistered 3)    Driving uninsured 4)    Driving unlicensed	1)    Fined $100, disqualified to rising of court 2)    Fined $100 3)    Fined $100 4)    Fined $100
17/12/1987	1)    Driving unregistered 2)    Not pay contribution to transcoder fund 3)    Offensive conduct (language)	1)    Fined $200 2)    Fined $200 3)    Fined $75
15/10/1990	1)    Break, enter and steal 2)    Break, enter and steal	1)    200hrs Community Service Order 2)    12 months Recognisance Good Behaviour Bond, $1,000 surety
26/08/1991	1)    Driving unlicensed 2)    Driving unregistered 3)    Driving uninsured	1)    Fined $200 2)    Fined $200 3)    Fined $200
24/06/1993	1)    Offensive language	1)    Fined $120, court costs $45
6/06/1994	1)    Self-administer prohibited drug (2 counts) 2)    Supply false information to pawnbroker 3)    Steal by finding (2 counts) 4)    Steal from motor vehicle (2 counts)	1)    On each count fined $150, court costs $46 2)    Fined $100, court costs $46 3)    On each count 2 years Recognisance Good Behaviour Bond, $1,000 surety 4)    On each count 2 years Recognisance Good Behaviour Bond, $500 surety & accept supervision NSW Probation Service; seek psychiatric/psychological treatment; attend drug & alcohol counselling
04/10/1995	1)    Larceny 2)    Possess implements to enter conveyance	1)    Fixed term - 6 months imprisonment 2)    Fixed term - 6 months imprisonment
20/02/1996	1)    Larceny (2 counts) 2)    Break, enter and steal 3)    Attempt break and enter with intent 4)    Steal motor vehicle 5)    Self-administer prohibited drug 6)    Possess implements capable of breaking into conveyance 7)    Resist arrest 8)    Drive unlicensed 9)    Negligent driving 10) Steal motor vehicle 11) Stealing 12) Self-administer prohibited drug 13) Possess housebreaking implements capable of entering conveyance	1)    Fixed term - 4 months imprisonment 2)    Fixed term - 4 months imprisonment 3)    Fixed term - 4 months imprisonment 4)    Fixed term - 4 months imprisonment 5)    Fixed term - 4 months imprisonment 6)    Fixed term - 4 months imprisonment 7)    Rising of the court 8)    Rising of the court 9)    Rising of the court 10) Fixed term - 4 months imprisonment 11) Fixed term - 4 months imprisonment 12) Fixed term - 4 months imprisonment 13) Fixed term - 4 months imprisonment
10/01/1997	1)    Possess prohibited drug (heroin)	1)    Fined $500, court costs $51
17/01/1997	1)    Maliciously damaging property	1)    Fined $500, court costs $51, compensation $178
30/05/1997	1)    Larceny	1)    Fined $1,000, court costs $51
30/09/1997	1)    Driving unlicensed 2)    Take conveyance 3)    Goods in custody 4)    Possess implement capable to enter conveyance 5)    Malicious damage	1)    Fined $200, court costs $51 2)    Fixed term - 5 months imprisonment 3)    Fixed term - 1 month imprisonment 4)    Fixed term - 4 months imprisonment 5)    Fixed term - 4 months imprisonment
7/11/1997	1)    Receive stolen property - theft  (<$2,000)	1)    Minimum term - 5 months imprisonment, additional term 3 months
20/11/1997	1)    Common assault 2)    Destroy or damage property (<$2,000)	1)    Fixed term - 12 weeks and 6 days imprisonment 2)    Fixed term - 12 weeks and 6 days imprisonment
15/01/1998	1)    Fail to appear	1)    Fixed term - 18 days imprisonment
11/02/1998	1)    Assault officer in execution of duty 2)    Goods in personal custody reasonably suspected being stolen	1)    Fixed term - 4 months imprisonment 2)    Fixed term - 4 months imprisonment
13/10/1998	1)    Larceny value ($2,000) 2)    Larceny value ($2,000) 3)    Larceny 4)    Possess prohibited drug 5)    Possess prohibited drug 6)    Goods in personal custody reasonably suspected being stolen	1)    Fixed term - 6 months imprisonment 2)    Fixed term - 6 months imprisonment 3)    Fixed term - 6 months imprisonment 4)    Fixed term - 6 months imprisonment 5)    Fixed term - 6 months imprisonment 6)    Fixed term - 6 months imprisonment
7/10/1999	1)    Possess prohibited drug 2)    Possess prohibited drug	1)    Fined $500, court costs $52 2)    Fined $200, court costs $52
11/01/2000	1)    Possess prohibited drug 2)    Larceny 3)    Goods in custody 4)    Goods in custody 5)    Goods in custody 6)    Larceny 7)    Administer prohibited drug 8)    Larceny 9)    Larceny 10) Goods in custody 11) Break, enter and steal 12) Possess car breaking implements	1)    Rising of the court 2)    Rising of the court 3)    Fixed term - 6 months imprisonment 4)    Fixed term - 6 months imprisonment 5)    Fixed term - 6 months imprisonment 6)    Fixed term - 6 months imprisonment 7)    Fixed term - 6 months imprisonment 8)    Fixed term - 6 months imprisonment 9)    Fixed term - 6 months imprisonment 10) Fixed term - 6 months imprisonment 11) Minimum term - 9 months, additional term 3 months 12) Minimum term 9 months, additional term 3 months
4/08/2000	1)    Possess implements to enter/drive conveyance 2)    Goods in personal custody reasonably  suspected being stolen 3)    Escaped custody	1)    6 months imprisonment 2)    6 months imprisonment 3)    6 months imprisonment
29/10/2001	1)    Larceny value (<$2,000)	1)    Fined $1,000, court costs $58
7/02/2002	1)    Obtain money etc by deception (<$2,000)	1)    Fined $600, court costs $58
28/03/2002	1)    Possess prohibited drug 2)    Self-administer/attempt to self- administer prohibited drug	1)    Fined $300 2)    Fined $300
28/06/2002	1)    Possess prohibited drug 2)    Self-administer/attempt to self- administer prohibited drug	1)    Fined $200, court costs $58 2)    Fined $200
19/06/2003	1)    Use etc offensive weapon with intent to commit indictable offence 2)    Break and enter building (steal) value (<$15,000) 3)    Assault police officer in execution of duty without actual bodily harm 4)    Break and enter building (steal) value (<$15,000) 5)    Break and enter building (steal) value (<$15,000)	1)    See below for indictable offences 2)    Indicted, 4 years imprisonment with 2 years 6 month non-parole period (severity appeal lodged) 3)    18 months imprisonment with 9 month non-parole period 4)    Indicted, taken into account on Form 1 5)    4 years 6 months imprisonment with 2 years 6 month non-parole period (severity appeal lodged)
25/07/2003	1)    Make/furnish a statement which is false/misleading	1)    Taken into account on Form 1 at Sydney District Court on 19/06/2003
7/06/2004	Appeal to NSW Court of Criminal Appeal of sentence on 19/06/2003: 1)    Break and enter building (steal) value (<$15,000) 2)    Assault police officer in execution of duty without actual bodily harm 3)    Break and enter building (steal) value (<$15,000)	1)    Appeal allowed, substitute 4 years imprisonment with 2 years 3 month non-parole period 2)    Appeal dismissed 3)    Appeal allowed, substitute 4 years imprisonment with 2 years 3 month non-parole period
6/08/2004	1)    Break and enter building (steal) value (<$15,000) 2)    Break and enter building (steal) value (<$15,000)	1)    3 years 4 months imprisonment with 2 years 6 month non-parole period 2)    12 months imprisonment
1/10/2004	1)    Possess housebreaking implements 2)    Fail to appear in accordance with Bail granted undertaking 3)    Receive/dispose stolen property- min. Indictable offence (<$5,000) 4)    Break and enter building (steal) value (<$15,000) 5)    Goods in personal custody reasonably suspected being stolen	1)    6 months imprisonment 2)    6 months imprisonment 3)    6 months imprisonment 4)    12 months imprisonment 5)    6 months imprisonment
29/08/2005	1)    Break and enter building (steal) value (<$15,000)	1)    2 years imprisonment
18/10/2007	1)    Possess housebreaking implements 2)    Enter prescribed premises of any person without lawful excuse	1)    6 months imprisonment 2)    Fined $200, court costs $70
10/02/2010	1)    Possess prohibited drug 2)    Possess housebreaking implements 3)    Break and enter house etc (steal) value (<$15,000) 4)    Possess housebreaking implements 5)    Break and enter house etc (steal) value (<$15,000)	1)    6 months imprisonment (severity appeal lodged) 2)    6 months imprisonment (severity appeal lodged) 3)    12 months imprisonment, $1,850 compensation (severity appeal lodged) 4)    6 months imprisonment (severity appeal lodged) 5)    18 months imprisonment with 12 month non-parole period (severity appeal lodged)
11/03/2010	Appeal to Sydney District Court in respect of conviction on 10/02/2010: 1)    Possess housebreaking implements 2)    Possess prohibited drug 3)    Possess housebreaking implements 4)    Break and enter house etc (steal) value (<$15,000) 5)    Break and enter house etc (steal) value (<$15,000)	1)    Conviction confirmed 2)    Conviction confirmed 3)    Conviction confirmed 4)    Conviction confirmed 5)    Conviction confirmed, substitute 10 month non-parole period
4/03/2013	1)    Special category driver drive with special range Prescribed Concentration of Alcohol	1)    Fined $400, court costs $83, disqualified for 6 months
24/06/2013	1)    Special category driver drive with special range Prescribed Concentration of Alcohol	1)    Fined $150, disqualified for 3 months (severity appeal lodged)
25/07/2013	1)    Special category driver drive with special range Prescribed Concentration of Alcohol	1)    No conviction section 10 Good Behaviour bond, reside at specified address for 18 months
11/12/2014	1)    Drive with middle range Prescribed Concentration of Alcohol - 1st offence	1)    Fined $1,000 disqualified for 9 months
18/07/2017	1)    Enter enclosed land not prescribed premises without lawful excuse	1)    Fined $275
1/12/2017	1)    Enter enclosed land not prescribed premises without lawful excuse 2)    Break and enter house etc (steal) value (<$60,000) 3)    Drive with middle range Prescribed Concentration of Alcohol - 2nd offence 4)    Drive motor vehicle while licence suspended - 2nd offence 5)    Drive with high range Prescribed Concentration of Alcohol - 2nd offence 6)    Negligent driving (no death or grievous bodily harm) 7)    Not give particulars to other driver 8)    Drive motor vehicle while licence suspended - 2nd offence	1)    Section 10a conviction with no other penalty, $500 compensation 2)    Aggregate 12 months imprisonment with 6 month non-parole period 3)    Aggregate 12 months imprisonment with 6 month non-parole period, disqualified for 6 months, alcohol interlock program 24 months 4)    Aggregate 12 months imprisonment with 6 month non-parole period, disqualified for 12 months 5)    Aggregate 12 months imprisonment with 6 month non-parole period, disqualified for 6 months, alcohol interlock program 48 months 6)    Section 10a conviction with no other penalty 7)    Section 10a conviction with no other penalty 8)    Aggregate 12 months imprisonment with 6 month non-parole period, disqualified for 6 months
13/04/2018	1)    Assault occasioning actual bodily harm 2)    Assault occasioning actual bodily harm 3)    Common assault 4)    Common assault	1)    Pending court appearance 2)    Pending court appearance 3)    Pending court appearance 4)    Pending court appearance

1. The applicant does not dispute the above records. The above table indicates that the applicant has been sentenced to an aggregate term of 12 months’ imprisonment in Waverley Local Court on 1 December 2017 for “Break & enter house etc steal value <= $60,000-t1”, “Drive with middle range Prescribed Concentration of Alcohol – 2^nd offence” and two counts of “Drive motor vehicle while licence suspended – 2^nd offence”.  On the evidence before it, the Tribunal finds that the applicant has a substantial criminal record as defined in s 501(7)(c).

2. Having made those findings, the Tribunal needs to consider the principles in Ministerial Direction No. 65.

   MINISTERIAL DIRECTION NO. 65

3. On 22 December 2014, under s 499 of the Act, the Minister issued Ministerial Direction No. 65, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction No. 65/Direction). The Direction is binding on decision-makers performing functions and exercising powers under s 501. The Direction requires the Tribunal to take into account specified primary and other considerations.

4. Part C of the Direction identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa.

5. In its Preamble, the Direction articulates some of the objectives of the Act which includes the regulation that, “in the national interest, the coming into, and presence in, Australia of non-citizens…a non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision maker that they pass the character test”.[4]

   [4] Ministerial Direction No. 65, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, at 6.1(1) and (2).

6. Under the headings General Guidance and Principles, the Direction refers to a number of guiding considerations, including:

   ·The Government’s commitment to the protection of the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Australia has a low tolerance of any criminal or other serious conduct by visa applicants reflecting that “there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia”.[5]

   ·Being able to come to, and remain in Australia is a privilege. Australia has a right as a sovereign nation to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.[6]

   ·The Australian community expects that the Australian government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.[7]

   ·A non-citizen who commits a serious crime, including one of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.[8]

   ·Australia has a low tolerance of any criminal or other serious conduct by non-citizens, especially in cases where the criminal conduct is so serious that any risk of similar conduct in the future is unacceptable.[9]

   ·The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether the visa should be cancelled or refused.[10]

   [5] Ibid at 6.3(6).

   [6] Ibid at 6.3(1).

   [7] Ibid at 6.3(2).

   [8] Ibid at 6.3(3).

   [9] Ibid at 6.3(4).

   [10] Ibid at 6.3(7).

7. The Direction requires the decision-maker to take into account primary and other considerations relevant to an individual case including a differentiation between refusal of a visa and a cancellation, whereby the latter recognises that non-citizens holding substantive visas would generally have an expectation of being allowed to remain in Australia, whereas the former should have no expectation that the visa application would be approved in the event of a character concern.

8. Of particular relevance to the exercise of discretion is the statement in the Direction that “primary considerations should generally be given greater weight than other considerations”.[11]

   THE PRIMARY CONSIDERATIONS:

   [11] Ibid at 8(4).

   a)    Protection of the Australian community from criminal or other serious conduct:

1. Paragraph 13.1.2 of Direction No. 65 states:

   1.    In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle 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 that it may be repeated may be unacceptable.

   2.    In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

   (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 available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

2. Paragraph 13.1 of the Direction has two limbs to be considered by the Tribunal, namely, the nature and seriousness of the conduct to date and the risk to the Australian community in case the applicant commits further offences or engages in other serious conduct.

3. The evidence before the Tribunal indicates that between August 1987 and April 2018, the applicant appeared before the Courts on approximately 40 occasions, two of which are related to appeals. He was found guilty and/or convicted of over 110 separate offences, including multiple and repeated offences. The convictions include violent offences such as assault occasioning actual bodily harm, assaulting a police officer in execution of duty, and common assault. The convictions also include drug offences such as possession of heroin and/or other prohibited drugs, failing to appear, using an offensive weapon, larceny, break and enter, stealing, obtaining money by deception, driving with high range of prescribed level of alcohol, negligent driving, driving while license suspended.

4. The respondent contends that the applicant’s offences are objectively serious and that since being found guilty of his first criminal offence in August 1987, the applicant’s criminal offending has increased in seriousness.

5. In the course of the hearing, the applicant accepted that a number of the offences are serious.

6. The seriousness of the applicant’s conduct has been commented upon on numerous occasions by the Courts. On 7 June 2004, the New South Wales Court of Criminal Appeal referred to the applicant’s criminal history. The Court described his history as “an appalling record”.[12] On 6 August 2004, his Honour Acting Judge JX Gibson of the District Court of New South Wales referred to the applicant as having “a shocking record, as it had been agreed, and he is not entitled to a great deal of mitigation in relation to that record”.[13]

   [12] Exhibit A – G Documents, p. 54.

   [13] Ibid, p. 57.

7. The Tribunal observes that on 10 February 2010, Magistrate Milledge remarked:

   There comes a time when the courts have got to say to people, ‘no more’, that your offending has made a lot of people’s lives miserable. You have broken into their homes, you have invaded their personal space and you have stolen from them… Now it has come to a time in your life where what you have done far outweighs any subjective features of you as an individual, because you have made too many people’s lives miserable.[14]

   [14] Exhibit A – G Documents, p. 68.

8. On 1 December 2017, the applicant appeared before Magistrate Stapleton in relation to the offences of driving while suspended, negligent driving, and not giving particulars. Her Honour observed:

   It was a very serious offence of negligent driving. He lost control of his car prior to entering a roundabout. It was only due to the skill of the other driver that she narrowly avoided a head-on collision and he took out the side of her car, this is my quick summary of it. That charge is drive whilst suspended, negligent driving and of course he stopped – he drove off. He reversed his car, released himself from the circumstances so it is an offence of fail to give particulars.[15]

   [15] Ibid, p. 79, para 25.

9. The Tribunal is satisfied on the evidence before it that the applicant has an extensive and significant criminal history which involves violence causing harm to members of the Australian community. His offending in relation to dishonesty has also caused financial harm to members of the Australian community. The evidence shows that the applicant has continued to reoffend for many years. Although in the course of the hearing the applicant showed a degree of remorse, the Tribunal is satisfied that overall he lacked insight into his offending.

10. The seriousness of the applicant’s offending is reflected in the escalation of the sentences imposed. The sentences have ranged from fines, good behaviour bonds, recognisance, community service orders, findings of guilt without conviction, bail and other community-based orders. The applicant has been sentenced to several terms of imprisonment ranging from 18 days to 4 years in length. The applicant’s offending conduct began in 1987 with low range Prescribed Concentration of Alcohol (PCA) and over the years developed to include serious and violent offences that resulted in his incarceration. Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as an objective indicator of the seriousness of the offence. The repeated and multiple offending must be viewed very seriously.

11. The Tribunal is satisfied on the evidence before it that the applicant’s offending has escalated over the years in terms of seriousness, indicating that there remains a significant risk of the applicant reoffending. The Tribunal is satisfied that the evidence supports a finding that the applicant has shown a significant degree of disregard for the law and the police. The applicant has been convicted of assaulting a police officer in execution of duty. The Tribunal is critical of the applicant’s conduct towards police officers in the performance of their duty.

12. The evidence before the Tribunal indicates that the applicant has had a substance and alcohol abuse problem. In the course of the hearing, he gave evidence about his alcohol and substance abuse. He indicated that he has attended rehabilitation programs of various types. In the Tribunal’s view, the applicant underestimates the extent of the problem showing lack of insight.

13. The applicant has provided other explanations including the problematic relationship he had with the mother of his daughter and the tragic death of his former partner and her child in 2017.  There is evidence before the Tribunal that the applicant’s former partner and her son died in difficult circumstances in March 2017.[16] The Tribunal takes this opportunity to acknowledge this sad event in the applicant’s life. The Tribunal does not doubt the authenticity of the applicant’s feelings about what happened.

    [16] Exhibit A – G Documents, p. 212.

14. Although it is entirely plausible that this incident has had an impact on the applicant’s life, it cannot be used as a reason or an excuse for his offending, particularly as the incident occurred in March 2017, subsequent to many of the instances of offending. Moreover, the Tribunal is of the view that the taking of personal responsibility for one’s actions is an important part in accepting and controlling one’s behaviour. It is trite to say that there are challenges in life facing many individuals who do not resort to crime and destructive behaviour such as that displayed by the applicant. His explanations support the conclusion that he has limited capacity for rehabilitation.

15. In a letter to the Tribunal dated 1 November 2018[17], the applicant referred to his embarrassment and disgust with his own behaviour. He referred to traumatic life events and that he did not know how to deal with those events. He stated that he lives with the “sentencing remarks” which betray him as a “bad man”.

    [17] Exhibit B.

16. The Tribunal is satisfied that there is limited evidence that the applicant has addressed fundamental issues, particularly the alcohol and substance abuse, which on his own evidence have made a significant contribution to his offending behaviour. The Tribunal also notes the applicant’s evidence that being imprisoned has not acted as a deterrent; he stated that jail is a “safe environment” with which he is familiar.

17. In Minister for Immigration and CitizenshipvObele[18], the Court remarked:

    … The offences he has committed provide the best and perhaps the only real indicator of the harm he might cause in the future. The Tribunal adverted to cll 10(1) and 10.1.1. It referred to the relevant primary considerations under the rubric of the protection of the community. It expressly considered the seriousness and nature of the relevant conduct as well as the risk that the conduct may be repeated. It also referred repeatedly to the serious nature of the offences. In context it is implicit that it had in mind the harm to the community posed by such offences.

    I disagree that the fact of previous criminal conduct can tell us nothing about the kind of harm that an offender may pose in the future. The assessment of the risk of reoffending in which sentencing judges routinely engage is based on the past. When the Direction focuses on the nature of the relevant conduct it does so in the context of the assessment of the level of risk of harm so the risk of harm posed by the conduct in which the person has engaged is obviously relevant to the risk that he might in the future engage in it. The fact that an offender has been involved in drug trafficking in the past provide some evidence of the kind of harm in which he might engage in the future and I have no doubt that Tribunal had this in mind.[19]

    [18] Minister for Immigration and CitizenshipvObele [2010] FCA 1445.

    [19] Ibid at [58]-[59].

18. In the course of the hearing, the applicant asserted that he would not reoffend. When asked by his mother if he would reoffend, he was adamant that he would not. The Tribunal is not reassured by the applicant’s assertions as the objective evidence shows that there is a risk of reoffending and that the risk is significant.

19. On 1 December 2017, Her Honour observed:

    So at this point in time when I assess his capacity for rehabilitation I have got to say I think his capacity for rehabilitation is limited and that is important because it is a relevant factor when I consider how long a custodial sentence I should impose.[20]

    [20] Exhibit A – G Documents, p. 80.

20. The cumulative objective evidence indicates that the applicant has been out of control for many years and that he has little or no respect for the law, including the police. The applicant has engaged in conduct which the Tribunal views as violent, serious and relevant to the consideration of the risk to the Australian community should he display the same pattern again. The applicant’s long history of offending despite multiple Court outcomes means that the Tribunal is not satisfied that the applicant would not reoffend. As recent as December 2017, the Court commented on the applicant’s limited capacity for rehabilitation.[21] Not only has the applicant continued to offend despite having been sentenced to numerous terms of imprisonment, his criminal record indicates that he has reoffended in circumstances where he was, at the time, the subject of community-based orders and various bail conditions.

    [21] Ibid.

21. It is also noteworthy that the applicant’s disrespect for the law is also demonstrated by the fact that he continued to offend despite the Department on two separate occasions[22], namely on 8 April 2008 and 10 August 2011, sending him warnings about the cancellation of his Absorbed Person visa. In the course of the hearing, the applicant claimed that he did not receive the notice of 10 August 2011. He stated that although he remembers receiving the letter at that time he was in segregation and was very angry. He also said that his parents had told him about the letter and that it was a warning from the Department. On the evidence, the Tribunal is satisfied that the applicant was put on notice by the Department on two separate occasions that his offending could lead to the cancellation of his visa and the applicant appears not to have cared. The Tribunal is critical that the applicant showed disrespect for, and disregard to a legitimate process. The applicant knew that his visa could be cancelled and he did not care and continued to offend and be a risk to the Australian community.

    [22] Exhibit A – G Documents, pp. 232-234 and 236-237.

22. Consistent with paragraph 13.1.2 of Direction No. 65, the Tribunal is satisfied that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.

23. Looking at the applicant’s circumstances as a whole, the Tribunal is satisfied that there is a risk that the applicant would reoffend and consistent with paragraph 6.3(4) of Direction No. 65, “In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable”. The Tribunal is satisfied that the risk is unacceptable and for the stated reasons, the consideration of the protection of the Australian community weighs heavily against revocation.

    b)    The best interests of minor children in Australia:

24. Direction No. 65 sets out a number of factors to be considered in assessing the best interests of minor children in Australia, including the nature and duration of the relationship, the extent to which the person is likely to play a positive parental role in relation to the child, the likely effect that any separation from the person would have on the child, and whether there are any other people who fulfil parental roles with the child.

25. The applicant has two children, a son aged 18 years and a daughter aged 28 years. 

26. Consequently this consideration is not relevant in the applicant’s case.

    c)    Expectations of the Australian Community:

27. The Direction states at paragraph 13.3(1) that:

    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation 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 hold a visa. Decision-makers should have due regard to the government’s view in this respect.

28. In the Statement of Facts, Issues and Contentions, the respondent’s representative referred to the decision of YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 where her Honour Justice Mortimer noted that this consideration is linked to the protection of the community. These “… are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes” (at [76]). Her Honour went on to say:

    [76] …the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.

29. Direction No. 65 makes it clear that the government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Moreover, the Direction at paragraph 6.3 states that the right of a non-citizen to come to or remain in Australia is a privilege conferred in expectation that the person will be law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[23]

    [23]Direction No. 65 op cit. 6.3(1).

30. The applicant has been offending for over 20 years and he has committed numerous violent offences, offences of dishonesty and drug offences. The Tribunal is satisfied that the offending in the context of the applicant who has demonstrated the capacity to continue to offend and indeed finds prison to be a safe place, is alarming and suggests that imprisonment has not educated, rehabilitated, or impacted in a favourable manner to the applicant’s criminal conduct. This is not intended in any way to be a criticism of the prison system but rather a reflection of the applicant’s lack of capacity to learn and take responsibility for his own conduct.

31. The Tribunal is of the view that given the applicant’s conduct and seriousness of his continued offending, it is reasonable to suggest that the Australian community would not expect that the cancellation of his visa would be revoked.  Consistent with paragraph 13.3 of the Direction and YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, the Tribunal is satisfied that given the seriousness and long history of the applicant’s offending behaviour, the Australian community would expect that the applicant would not continue to hold a visa. The Tribunal is of the view that the Australian community would have an unfavourable perception of the applicant’s conduct, particularly towards the police upon whom the community relies for protection. It is reasonable to suggest that the community would not hold a favourable view of someone who has shown such a degree of disregard to the law.

32. The Tribunal is satisfied that this consideration weighs heavily against the applicant.

    OTHER CONSIDERATIONS:

    a)    International non-refoulement obligations

33. Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm. Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations. These include the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).

34. Direction No. 65 states that the “existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists”.[24]

    [24] Direction No. 65 at paragraph 14.1(2).

35. The applicant has not claimed any non-refoulement obligations, and there is no evidence that there are non-refoulement obligations to be considered in the current application. Consequently the Tribunal places no weight on this consideration.

    b)    Strength, nature and duration of ties

36. The applicant arrived in Australia approximately 40 years ago, aged about 10 years.  The applicant received secondary education up to year 10 and he was an apprentice in carpentry. He considers himself to have skills in carpentry. He worked as a carpenter in 2011 to 2014 and in 2015 to 2017. He has been invited to a welfare engagement at the detention centre for his “ongoing positive attitude and cooperative behaviour”.[25] He has provided a letter from Rev Wykes dated 8 August 2018 referring to the applicant, amongst other things, as being a good tradesman.[26]

    [25] Exhibit A – G Documents, p. 229.

    [26] Ibid, p. 228.

1. The Tribunal is satisfied that the applicant has made a limited positive contribution to the Australian community. His long-standing and serious offending has not been a positive contribution.  On the contrary, it has had negative impacts in terms of financial, legal, and health.

2. The applicant has a daughter aged 28 years and an 18-year-old son. The applicant’s son has lived with his mother and stepfather. The applicant has not seen him since he was a small child and he has not provided day-to-day parental care for his son. The applicant has provided substantial evidence in relation to the tumultuous relationship that he had with the mother of his daughter which led to intervention by the authorities including child protection. The applicant has provided a letter that he wrote to his daughter in May 1995[27] and the Tribunal does not consider this to be indicative of a current relationship with the daughter. He also provided a copy of an undated letter to his daughter which appears to have been written when the child was very young as the applicant asks “How’s kindy?”.[28] The Tribunal does not consider this to be evidence of a current relationship with the daughter.

   [27]Ibid, p. 210.

   [28] Ibid, p. 211.

3. On the evidence before it, the Tribunal is satisfied that the applicant has a limited relationship with both of his adult children. However, the Tribunal has decided to give this aspect some weight in his favour.

4. The applicant is currently in a relationship with Ms Natali who gave evidence in the course of the hearing in support of the applicant. She also provided a letter of support in which she stated that she has known the applicant for more than 40 years as a friend, neighbour and currently as a partner. The Tribunal asked her about the length of the romantic relationship she currently has with the applicant and she confirmed that it has been so for the last six months, during which time the applicant has been in detention. Ms Natali wrote that the applicant is an excellent father for his two children and that he would make an outstanding contribution towards their upbringing. She also stated that she considered him to be a role model. Without intending to sound harsh, Ms Natali’s views are not supported by the objective evidence.  The Tribunal finds it odd that the applicant has been in a relationship with Ms Natali for six months in the current circumstances but has nevertheless decided to give this some weight in the applicant’s favour.

5. The applicant’s parents and two sisters live in Australia. Both of the applicant’s parents and one of his sisters gave evidence. The Tribunal was impressed with the family members who appeared to be kind and genuine people who expressed strong feelings about the applicant leaving Australia. Dr Pillai provided a letter of support dated 11 April 2018[29] to the applicant’s parents and there was also a letter from Dr M Freelander to the Assistant Minister for Home Affairs.[30] The Tribunal has given the letters some weight.

   [29] Exhibit A – G Documents, p. 138.

   [30] Ibid, p. 140.

6. The Tribunal acknowledges that if the applicant were to leave Australia, it is highly likely that he would not be permitted to return to Australia. The parents are in their seventies with limited capacity to travel and this could potentially mean that the parents will not see the applicant if and when he departs Australia. The Tribunal gives this aspect weight in favour of the applicant.

7. The Direction envisages at 14.2(1)(a)(ii) that “More weight should be given to time the non-citizen has spent contributing positively to the Australian community”. The long-standing and serious offending has cost the community in a way that outweighs the limited contribution that the applicant has made to the Australian community. This weighs heavily against the applicant.

   c)    Impact on Australian business interests

8. There is no evidence to indicate that this consideration is relevant.

   d)    Impact on victims

9. Although there is no direct evidence of the impact on victims of a decision to grant the applicant a visa, the totality of the applicant’s criminal offending has caused significant and substantial harm to members of the Australian community, ranging from considerable financial loss to physical harm. The Tribunal gives weight to this consideration in deciding not to revoke the cancellation.

   e)    Extent of impediments if removed

10. Paragraph 14.5(1) of Direction No. 65 requires, amongst other things, the Tribunal to give regard to the extent of any impediments that the non-citizen may face if removed from Australia to their home country.

11. The applicant is now in his early 50s. He has indicated[31] that he does not have any diagnosed medical or psychological conditions but he takes blood pressure medication. He otherwise appears to be in good health. The applicant’s immediate family is in Australia and they are highly supportive. He has been in a relationship for about six months. Given the duration of that relationship, the Tribunal does not consider it to be a significant impediment. 

    [31] Exhibit A – G Documents, p. 117.

12. Direction No. 65 at paragraph 14.5(1) states that the extent of any impediments that the applicant may face in establishing themselves and maintaining basic living standards in their home country is to be considered in the context of what is generally available to other citizens of that country. There is no evidence before the Tribunal that the applicant would be unable to access the same level of services, medical or otherwise, available to other citizens of New Zealand.

13. The respondent provided submissions and supporting documentation[32] that the New Zealand Department of Corrections runs a program in which individuals who have been recently released from custody and returning to New Zealand will be supervised to assist with integration into the New Zealand community.

    [32] Exhibit F – Respondent's Statement of Facts, Issues and Contentions, p. 21 and Annexure A.

14. The applicant has skills in carpentry which would assist him in finding employment in New Zealand. He speaks English so there is no language barrier. The Tribunal acknowledges that in case of his return to New Zealand, the applicant may face some practical difficulties including finding employment, accommodation and generally establishing himself in New Zealand. However, the Tribunal does not view those difficulties as being insurmountable.

15. Although the Tribunal has given some weight in favour of the applicant in relation to this consideration, on balance, the Tribunal is not satisfied that this consideration outweighs other considerations.

    Cumulative considerations

16. The Tribunal has carefully considered the relevant matters in Direction No. 65. The aspects that weigh heavily against the applicant relate to Primary Considerations and the Tribunal has given those considerations significant weight. In relation to the Primary Considerations, Protection of the Australian Community and Expectations of the Australian Community, the Tribunal is satisfied and for the stated reasons that those considerations weigh heavily against revocation of the mandatory cancellation of the applicant’s visa.

17. The principles in Direction No. 65 require a decision-maker, such as the Tribunal to undertake a balancing exercise which involves consideration of all relevant matters and to accord them proportionate weight. The Tribunal is satisfied that it has given regard to all relevant matters, individually and cumulatively, and given them weight which the Tribunal considers to be appropriate in the circumstances.

18. For the stated reasons, the Tribunal finds that the applicant does not meet the character test as defined in s 501 of the Act. In consideration of the evidence as a whole and given the Tribunal’s assessments of the Primary and Other Considerations in Direction No. 65, the Tribunal has decided to affirm the decision not to revoke the cancellation of the applicant’s Absorbed Person visa.

    DECISION

19. The Tribunal affirms the decision not to revoke the cancellation of the applicant’s Absorbed Person visa.

I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Antoinette Younes

........................[sgd]............................................

Associate

Dated: 20 November 2018

Date(s) of hearing:	12 November 2018
Applicant:	In person
Solicitors for the Respondent:	N Cuthbert, Clayton Utz