Berryman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 421
•5 March 2020
Berryman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 421 (5 March 2020)
Division:GENERAL DIVISION
File Number(s): 2019/8224
Re: Delaine Berryman
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:5 March 2020
Place:Perth
The decision of the delegate of the Respondent made on 11 December 2019 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (temporary) visa under s 501CA(4) of the Migration Act 1958 (Cth) is affirmed.
...........................[sgd]......................................
Deputy President Boyle
CATCHWORDS
MIGRATION – Migration Act 1958 (Cth) – mandatory visa cancellation – s 501CA(4) – substantial criminal record – another reason why the cancellation decision should be revoked – Direction 79 – protection of the Australian community – nature and seriousness of the conduct – the risk to the Australian community – best interests of the child – traffic offences – strength, nature and duration of ties – extent of impediments if removed – decision affirmed
LEGISLATION
Criminal Procedure Act 2004 (WA) – s 129(3)
Migration Act 1958 (Cth) – ss 499(1), 499(2A), 500(1)(ba), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(d), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii)
CASES
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CZCV and Minister for Home Affairs [2019] AATA 91
DKXY v Minister for Home Affairs [2019] FCA 495
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gage and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 326
Mayes and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 32
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 363 ALR 325
Pinder and Minister for Home Affairs [2019] AATA 1398
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Varley and Minister for Home Affairs [2019] AATA 376
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs, Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s501CA (Department of Home Affairs, 28 February 2019) – paras 6.1, 6.2, 6.3, 8(3), 8(4), 8(5), 13(2), 13.1, 13.1(2)(b), 13.1.1, 13.1.1(1), 13.1.1(a), 13.1.1(b), 13.1.1(d), 13.1.1(e), 13.1.1(f), 13.1.2, 13.1.2(1)(a), 13.1.2(1)(b), 13(2)(b), 13.2, 13(2)(c), 14(1)(a), 14(1)(b), 14(1)(c), 14(1)(d), 14.2, 14.2(1)(a), 14.2(1)(b), 14.4(1), 14.4(1), 14.5(1), Part C
REASONS FOR DECISION
Deputy President Boyle
5 March 2020
THE APPLICATION
The Applicant seeks the review of a decision of a delegate of the Respondent made on
11 December 2019 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (temporary) visa (the Applicant’s visa) under s 501CA(4) of the Migration Act 1958 (Cth) (the Act).The Applicant’s visa had been cancelled pursuant to s 501(3A) of the Act because the Applicant does not pass the character test by reason of his substantial criminal record and because he was serving a full-time term of imprisonment for an offence against a law of a State.
The application for review is made in accordance with s 500(1)(ba) of the Act, which allows applications to be made to the Administrative Appeals Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) of the Act not to revoke a decision to cancel a visa. The Tribunal is satisfied that the application has been made in accordance with the relevant legislation and that the Tribunal has the jurisdiction to review the decision.
THE ISSUE
The issue for determination is whether the Tribunal should exercise the power in
s 501CA(4) of the Act in favour of revoking the mandatory cancellation of the Applicant’s visa.It is not disputed that the Applicant does not pass the character test (Applicant’s SFIC para. 22). The Tribunal, in any event, finds that to be the case. Accordingly, the issue for determination is whether the Tribunal is satisfied that there is another reason why the cancellation decision under s 501(3A) of the Act should be revoked under
s 501CA(4)(b)(ii) of the Act.
BACKGROUND
The Applicant is a 47 year old citizen of New Zealand who arrived with his mother, father and siblings as a 7 year old.
He has lived in Australia since September 1980 and has not left Australia since
October 1992.[1]
[1] Respondent’s SFIC para. 8.
The Applicant was granted the Class TY Subclass 444 Special Category (temporary) visa on 1 September 1994.
The Applicant has an extensive criminal record as an adult spanning the period from
1991 to 2019.[2] His record is attached as the Annexure to this decision.
[2] R2, SG4/878-891.
On 11 February 2019 the Applicant was convicted of various driving offences and was sentenced to a term of imprisonment of 6 months and one day. The Applicant had previously been convicted of various offences and sentenced to terms of imprisonment. The total of the terms of imprisonment to which the Applicant has been sentenced exceeds 12 months.
On 12 April 2019 the Applicant’s visa was cancelled under s 501(3A) of the Act.
THE HEARING
The application was heard on 19 February 2020. The Applicant appeared in person and the Respondent was represented by Mr A Gerrard of the Australian Government Solicitor.
The following witnesses gave evidence at the hearing:
(a)The Applicant;
(b)The Applicant’s partner, Ms Kristy Brown;
(c)Ms Jennifer Jones, the mother of the Applicant’s partner Ms Brown;
(d)The Applicant’s father, Delaine Berryman Snr; and
(e)Ms Vicky Berryman, the Applicant’s father’s wife.
The following documents were before the Tribunal:
(a)
The Applicant’s statement of facts, issues and contentions, dated
11 February 2020 (A1);
(b)The Applicant’s typed statement relating to the assault outside a nightclub in 2007 which resulted in the Applicant’s conviction for assault occasioning bodily harm on 11 June 2007 (A2);
(c)Letter dated 10 February 2020 from Mark Mahon, senior counsellor at Holyoake (A3);
(d)Undated letter from Ms Jennifer Jones (A4);
(e)Letter dated 19 December 2019 from Ms Vickie Berryman (A5);
(f)Letter dated 19 December 2019 from Delaine Berryman Snr. (A6);
(g)Letter dated 11 December 2019 from Ms Kristy Brown (A7);
(h)G Documents (R1);
(i)Supplementary relevant documents (R2); and
(j)Respondent’s statement of facts, issues and contentions (R3).
At the commencement of the hearing counsel for the Respondent advised that the Respondent would not require the attendance of Ms Shenaya Berryman, the Applicant’s 11 year old daughter, who had provided a letter of support. Ms Shenaya Berryman’s letter was included in the G Documents.[3]
[3] R1, G17.
The Applicant’s capacity to represent himself
The Applicant is currently taking medication for his diagnosed condition of chronic schizophrenia. The Applicant advised the Tribunal at the hearing that he had taken his most recent depot medication about two to three weeks before the hearing.[4] The Applicant was at times during the hearing slow to answer questions put to him. At one point during cross-examination he was asked by counsel for the Respondent whether he required a break.[5] While he responded that he did not require a break, the Tribunal, in any event, directed a 15 minute break in the proceedings.
[4] Transcript at 30.
[5] Ibid.
It was also made clear to the Applicant on a number of occasions during the hearing, by both counsel for the Respondent and the Tribunal, that if he did not understand any question he should indicate that to be the case and the question would be re-stated or, if necessary, re-phrased. He was also advised on a number of occasions that if he required a break he could ask for it (for instance transcript at 31).
The Tribunal is satisfied that he understood the proceedings and the questions asked of him and that he was capable of representing himself at the hearing.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act provides that:
The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) ...; and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
A ‘substantial criminal record’ is defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a) ...
(b) ...
(c) …
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or...
Section 501CA of the Act further provides:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
…
(4) 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.
Ministerial Direction 79
Section 499(1) of the Act provides that:
(1)The Minister may give written directions to a person or body having functions or powers under this Act ... if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
Section 499(2A) of the Act states that:
[a] person or body must comply with a direction under subsection (1).
On 20 December 2018 the Minister for Immigration, Citizenship and Multicultural Affairs made a direction under s 499 of the Act, named “Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under 501CA” (Direction 79). The commencement date for operation of Direction 79 was 28 February 2019 (Paragraph 2 of Section 1 of Direction 79).
Paragraph 6.1 sets out the objectives of Direction 79. Paragraph 6.1(3) relevantly provides:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 of Direction 79 provides general guidance as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction 79 sets out principles which must be taken into account by persons making decisions under s 501CA(4) of the Act, including the Tribunal. They are:
(1)Australia 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.
(2)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.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)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. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)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 that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1)(b) of Direction 79 provides that, informed by the principles set out in paragraph 6.3, the decision-maker (in this case the Tribunal) must take into account the considerations in Part C of Direction 79 in order to determine whether the mandatory cancellation of the visa will be revoked.
Paragraph 13(2), which is in Part C of Direction 79, provides:
In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian community.
Further guidance as to how a decision-maker is to apply the considerations in Direction 79 can be found in paragraph 8 of Direction 79 which provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
THE EVIDENCE
The Applicant
No separate witness statement was provided by the Applicant for the purpose of these proceedings. There were various documents in the G Documents (R1) which had been completed by the Applicant which contained information relevant to these proceedings. The Tribunal took the Applicant to those documents. The first of the documents to which the Tribunal took the Applicant was the undated handwritten letter addressed to the Minister for Immigration, Citizenship and Multicultural Affairs.[6] The Applicant confirmed under oath that the contents of that letter were true and correct.[7]
[6] R1, G12/50-53.
[7] Transcript at 10.
The Applicant was also taken to the Personal Circumstances form[8] dated
14 May 2019 completed by the Applicant. The Applicant confirmed under oath that the contents of that document are true and correct.[9]
[8] R1, G13.
[9] Transcript at 10.
The Applicant was next taken to the undated typed statement included in the supplementary relevant documents[10] and the undated typed statement A2, both of which he confirmed under oath as being true and correct.[11]
[10] R2, SG1.
[11] Transcript at 11.
In the letter to the Minister,[12] the Applicant advises that:
[12] R1, G12.
·He came to Australia as a 6 year old
·As a child he attended church every Sunday until he was 13 years old.
·He gained his HSC and left school to work in his uncle’s construction company, then worked at a brick factory finally becoming a plant operator like his father.
·Alcohol then started to play a large part in his life and cause personal troubles but his days of alcohol use are ‘well and truly behind me’.
·The Parole Board decision of 5 April 2019 included a statement that he did not pose an unacceptable risk to the safety of the community.
·His offences for which he was serving a term of imprisonment were driving related and did not involve violence and were not sexual in nature and did not involve women or elderly or disabled.
·The Parole Board had noted a gap in his criminal history from 2013-2018 which demonstrated an ability to live pro-socially.
·His risk of reoffending was minimal due to his deep understanding of the loss that will be suffered by himself and his family should he go back to New Zealand.
·The terms of his parole, as noted by the Parole Board, provided further protection to the community as it would assist with his rehabilitation and reintegration which may offer more protection to the community than if he were released without supervision.
·The best interests of minor children would not be served by his removal. He has a 22 year old son, a 24 year old son and a daughter of 11 years of age.
·If he was deported his family would not have the financial means to visit him in New Zealand.
·Australia is the only country that he has known and both his grandparents and mother are buried in Australia.
·His father and brothers and sisters-in-law as well as his nephews and nieces live in Australia and he could be a positive influence on them. Extradition would be detrimental to the well-being and emotional stability of his immediate family including his 11 year old daughter.
·He accepts that he should have taken previous warnings more seriously.
·He agrees with the Parole Board assessment that he is ‘no longer any risk to the Australian community’.
In his Personal Circumstances Form,[13] the Applicant referred to the following matters:
[13] R1, G13.
·His close and loving relationship with his partner of 26 years. They have been together ever since he met her. She has supported him in gaol and they take care of each other, have raised two children and are raising their 11 year old daughter.
·If he were to go back to New Zealand his partner would have to stay in Australia as her family, with whom she is close and who provide support to her, are all in Australia.
·He has a strong bond with his daughter. He has her in his life every day as they live in the same house and they are a family unit.
·He takes his daughter to school some days, he takes her to the movies and he never lies to her and she never lies to him.
·He will support his daughter through her life as much as he can. His daughter would be devastated and would suffer emotionally if he were to be deported. Her life would be ruined and she would be easily influenced by strangers.
·If he was deported the help that he provides to his family, including his nephews and nieces and his father would be lost.
·The reason that he offended in the past was that he was not thinking straight and not realising the consequences of his actions. He had just bought a car, panicked and took off when the police tried to stop him resulting in the pursuit. He did not mean any harm to anyone.
·He accepts that he had received two previous warnings.
·He will not reoffend because he does not want to put his family and friends through the stress that they have suffered. This has been a ‘major learning curve’ for him.
·He wants the chance to change his life. He would never risk doing anything stupid again and risk being able to stay in the country which has been his home of 40 years.
·He suffers from schizophrenia for which his medication is monthly depot Aripiprazole injection.
·If he returns to New Zealand he will not get the medical treatment that he needs.
In the statement in the supplementary relevant document[14] the Applicant says that:
·He was sexually abused by a family member when he was a child but was too afraid to tell his parents.
·He started drinking alcohol when he was 16 and had thoughts that he was gay.
·The number 6 repeatedly came into his head and he thought that this was associated with the number 666 and that he was the devil. He got it into his head that it was his fault that he had been molested as a child. This thinking decreased in his thirties and forties.
·His partner of 26 years is aware of his mental illness and supports him.
·As long as he stays on his medication he will stay out of trouble.
[14] R2, SG1.
The final written statement[15] relates to the assault outside a nightclub in 2007 which resulted in the Applicant’s conviction for assault occasioning bodily harm on
11 June 2007. This statement is referred to below in considering the Applicant’s offending.
[15] A2.
Applicant’s evidence at the hearing
The Applicant was cross-examined about his drug and alcohol use. The following emerged:
·He started drinking at 16 years of age. He drank about a carton of beer a week. The rate of consumption decreased to the point that by 27 years of age he was probably drinking about a ‘few cans a week’. He has not drunk for the last three to four years.[16]
[16] Transcript at 14-15.
·He started using marijuana when he was 13. He used marijuana every day up until about two years ago when he stopped using it because it made him feel sick, ‘like a hangover’. He did not think that he had a ‘problem’ with marijuana until he started to feel sick after using it. He smoked a strong form of marijuana (Kronic), which is sometimes referred to as synthetic cannabis, which was legal until about five years ago.[17]
[17] Transcript at 15-16.
·He used heroin from the age of about 29 until he was 37.[18]
[18] Transcript at 16.
·He used amphetamines (ice) from age 31 years until about two years ago. The Tribunal notes that ‘ice’ is the common name for crystal methamphetamine.
·When asked how often he used ice, the Applicant said every day. He was asked how he could afford ice on a disability support pension. He said that it was given to him and, when asked why people would give it to him, he said it was because he was ‘respected in the neighbourhood’.[19]
[19] Ibid.
·When further cross-examined about the frequency of his ice use, the Applicant said that he did not take ice every day (as he had initially said) but probably took it:[20]
[20] Ibid.
Not every day, a few times a week at least and it’s just like going around your friend’s place and you get bored and nothing to do, so they pull out some drugs and they share it with you. So, you just have - get your day on.
·His evidence was that he took ice ‘three strong days a week’. Asked to explain that, he said:[21]
COUNSEL:Why do you use the phrase ‘three strong days a week’; does that mean you would use heavily on three days and not so much on other days?
APPLICANT: Yes, yes, and not - so, not, yes, on the other days, so gives your body - - -
COUNSEL:Not at all on other days or just not strong - - -?
APPLICANT: Yes, not - because you’ve got to recuperate, your body’s got to recuperate. You’ve got to eat because you can’t eat when you’re on that sort of stuff.
·He said that while he was using ice he was also smoking cannabis, ‘…at least a couple of cones a day’,[22] but that on some days he would have nothing.
[21] Transcript at 17
[22] Ibid.
In relation to his psychiatric illness, the Applicant’s evidence was:
·He was diagnosed with schizophrenia when he was 18 or 19.
·He is on depot medication for his schizophrenia but there had been periods when he failed to take his medication.[23] His evidence was that the right medication was not found until two or three years ago.
[23] Transcript at 19.
·He conceded that his offending was linked to his schizophrenia, more particularly to his failure to maintain the medication regime. The Applicant was taken to the Department of Corrective Services report dated 17 May 2013[24] which noted that the Applicant’s non-compliance with his medication regime was linked to his offending behaviour against his ex-partner.
[24] R2, SG2/553-555.
·The Applicant was also taken to the passage on page 3 of 4 of that report wherein the comment is made:[25]
[25] R2, SG2/555.
He stated that he believed that if he had been on his medication for schizophrenia at the time of the offence of Common Assault he would not have assaulted his ex-partner. Mr Berryman was not open to exploring his mental health issues, non-compliance with medication, and how they related to his offending behaviour and thinking.
·The Applicant said that he could not comment on that passage – he ‘didn’t really know’; he had a ‘lot of things going on in his life’.[26]
[26] Transcript at 19.
·The Applicant was cross-examined on whether he had had any discussions with medical practitioners about the link between marijuana use and schizophrenia. While at first he said that he could not remember, he then said that he had been told by a doctor that marijuana helped sedate him and that some doctors say that marijuana is good for pain.
·The Applicant was taken to a North Metropolitan Area Health Service Mental Health outpatient note[27] and the following exchange occurred:[28]
[27] R2, SG1/277.
[28] Transcript at 20.
COUNSEL:Well, let’s look at the documents that are before the tribunal. This is an outpatient note from the North Metropolitan Area Health Service, the mental health clinic, and it says towards the bottom of the page:
While there are no acute risk issues he remains at chronic risk of harm to himself and others due to his ongoing residual psychotic symptoms, chronic impulsivity and maladaptive coping strategies. This chronic risk is compounded, or increased, if he continues to use drugs.
So, this is 2014, not all that long ago and they’re saying that your drug use increases your risk. Do you have any response to that?
APPLICANT: There’s a lot of things going on in my mind.
COUNSEL:There were or there are?
APPLICANT: Yes, there were.
COUNSEL:So, in 2014 you weren’t compliant with your medication and you were using drugs?
APPLICANT: Maybe, I think so, I don’t know.
·The Applicant was taken to a further outpatient note:
COUNSEL:All right. Over the page on 279 there’s again another outpatient note dated 24 October 2014.
Delaine was quite open initially during my discussion. He admitted to using Kronic and being non-compliant with his medication. He acknowledged that his judgment was impaired and he agreed about the benefits of starting to take his medication.
·The Applicant agreed that at that time he was not taking his medication.
·He was then taken to a report dated 12 April 2016 from Dr Morshedaski,[29] whom the Applicant confirmed he saw regularly, in which Dr Morshedaski commented:
[29] R2, SG1/456.
We had a long discussion about the detrimental impact of cannabis use and other illicit drugs on his mental health. He seemed to be not ready to deal with his cannabis use at this stage. He’s aware of drug and alcohol service and we will continue to persuade him to deal with drug issues.
And:
He will remain at chronic risk due to the nature of his illness, his personality, vulnerability and ongoing illicit drug use.
·
The Applicant conceded that notwithstanding these warnings he continued to use ice and marijuana. He was taken to a Client Management Plan dated
12 July 2018[30] where the observation is made that:
[30] R2, SG1/241.
2) Potential to de-compensate due to excessive Alcohol use, illicit substance use leading to impulsive acts. Also attracting attention of forensic issues – VRO, Breaches of same
3) Poor engagement with services and reluctance to adhere to treatment, appointments
NB – client denies excessive Alcohol/illicit substance use on review although admits to THC abuse as an ongoing issue
·When it was put to the Applicant that those documents indicated that he had a poor record of adherence to medication regimes, the following exchange occurred:
COUNSEL:Now, that’s on 12 July 2018 but it’s repeated in a number of client management plans before that. But that’s in 2018 and it’s still recording that you have a poor history of adhering to treatment or medical appointments. Do you accept that in 2018 that you had a poor history?
APPLICANT: That’s when I - that’s when I stopped taking the medication.
COUNSEL:Well, you hadn’t really been taking it very often before that, Mr - - -?
APPLICANT: Well, I was taking it five years before then. I was at Stake Hill serving my sentence for the same crime and then after - yes, I thought I was okay, so I stopped taking it but I wasn’t and I should have stayed on it.
COUNSEL:Between 24 October 2017 and 26 June 2019, you missed a number of appointments with Dr Morshedaski. There are a number of letters in the supplementary documents - - -?
APPLICANT: That’s when I stopped taking my medication.
COUNSEL:And you stopped attending the doctor?
APPLICANT: Yes, because I thought I was okay but five years prior towards it I was at Stake Hill and I was taking my medication every time and I thought the medication was - I thought I didn’t need it. I thought I was fine but little did I know I had to be on it for the rest of my life.
In relation to his more recent drug use and the possibility of him using drugs in the future, the Applicant’s evidence at the hearing was as follows:
·The Applicant confirmed that since he had been in prison and in immigration detention he had been taking his medication and that he had not used ice or marijuana since being locked up. He was then asked whether he intended using marijuana again. The following exchange then occurred:
COUNSEL:…Because you’ve been locked up. Would you intend to use marijuana again?
APPLICANT: I’m not sure.
COUNSEL:You’re not sure? I’ve taken you, Mr Berryman, through some of the concerns raised about your marijuana use and the impact it has upon your risk. So, the concern is if you’re not sure about using marijuana again, how can this tribunal, or the Australian community, have reassurance that your risk level isn’t going to increase?
APPLICANT: Well, I know the consequences.
COUNSEL:It’s likely that you’ll use marijuana again, isn’t it, given your history?
APPLICANT: How do you know that?
COUNSEL:Well, you said I’m not sure if I’m going to use marijuana. You said in evidence that you’ve used it since you were 13?
APPLICANT: Yes, but not every day and not - - -
COUNSEL:You said in evidence that up to two years ago you were using every day?
APPLICANT: Not every day of my life. No, I play footy and things like that.
COUNSEL:Do friends use marijuana?
APPLICANT: I think it’s - a lot of people use marijuana.
COUNSEL:Yes, but do your friends use marijuana?
APPLICANT: Not all of them, no.
COUNSEL:It’s likely to be around you though if you stay in Australia, isn’t it? People are likely to smoke it around you at social gatherings?
APPLICANT: Well, my daughter and my partner doesn’t smoke and my daughter around, no.
The Tribunal asked the Applicant about his drug use and potential drug use as follows:
TRIBUNAL:…just before we move off that and go into the offending, Mr Gerrard has asked you about whether or not you would be likely to go back to use marijuana. What about ice and other drugs? And I ask that particularly in light of your comment that because you’re respected in the community people give you ice, why would that not continue if you were to stay here?
APPLICANT: Because of my daughter.
TRIBUNAL:Where were you living at the time that you speak of when people would come around and give you ice, whereabouts - - -
APPLICANT: I was going out to their place.
TRIBUNAL:But where was that, that was in - - -
APPLICANT: In Koondoola, Balga, Girrawheen.
TRIBUNALSo, it’s the case, is it, that the use of ice and other drugs within that community, within your social setting, is very common, everybody uses ice, do they, or a lot of people use ice?
APPLICANT: A handful, yes.
TRIBUNAL:Well, it’s the handful that you mix with though, isn’t it?
APPLICANT: Yes.
The Applicant was also cross-examined about his 11 year old daughter and other minor children in his life as well as his ties to Australia and impediments to his establishing himself if he were to return to New Zealand. He was also cross-examined on his criminal record and some of the more serious offences of which he has been convicted. His evidence in relation to those issues is covered in the consideration of the offences below.
Applicant’s partner Ms Brown
As indicated above, Ms Brown provided a letter dated 11 May 2019,[31] a letter dated 23 July 2019[32] and a letter dated 11 February 2020.[33] Ms Brown confirmed under oath that the contents of each of those letters were true and correct.[34]
[31] R1, G15.
[32] R1, G16.
[33] A7.
[34] Transcript at 54.
In the above letters Ms Brown gives evidence that:
·She and the Applicant have been together for 24 years and have three children, boys aged 23 and 21 and a daughter aged 11 years. They also have a 4 year old granddaughter.
·It has been a ‘rocky road’ over the years ‘on and off’ but they have remained together parenting and supporting their children
·The younger son has had a decline in his mental health since the Applicant has been in prison. He will need his father more than ever.
·The Applicant has been here for forty years, his mother is buried here and his family would not move back to New Zealand.
·Ms Brown comes from a close knit indigenous family and the Applicant has become a part of the family who are, as she is, concerned about the effect that removing the Applicant from his family would have.
·He has love and support in Australia that he would not have in New Zealand
·The Applicant acknowledges that he has made significant mistakes and put himself and his family in the position that he currently finds himself. He would not ‘put a foot out of line again’.
·She has an intense fear of flying and if he is deported she will never see him again. Their sons have ‘gotten themselves in the type of trouble that would discourage the New Zealand government to allow them to visit’.[35]
·In relation to the violence restraining order that she has previously taken out, at the time that she took them out she was dealing with mental health issues and she had insecurities. She thought that getting VROs was easier than trying to communicate to sort out their problems. She may have ‘over dramatized’ to the court to get the VROs. She had allowed him to be with her notwithstanding the VROs which caused him to be arrested but she did not mention that to the police.[36]
·Had she known the trouble that the Applicant would be in she would not have taken out the VROs. They are in contact every day.
·The Applicant is the only partner that she has ever had and cannot imagine life without him.
[35] R1, G15/77.
[36] R1, G16.
At the hearing Ms Brown agreed that the relationship between her and the Applicant was rocky and that there were lengthy periods including from 2016 to 2019 when they were not living together. She agreed that there had been incidents of domestic violence by the Applicant against her.
In relation to what would happen if the Applicant were removed to New Zealand,
Ms Brown said that her family was here, that her mother and father were getting old, that her cousin had just been diagnosed with cancer and that she had not wanted to think about what would happen if the Applicant were to be returned to New Zealand. She did say that her relationship would be ‘ongoing’ if the Applicant were to be removed to New Zealand.
In relation to the role that the Applicant played in their 11 year old daughter’s life,
Ms Brown’s evidence was that he did pick her up from school if she was late home from work, drop her at school and help her with money for their daughter.[37]
[37] Transcript at 57.
Ms Brown said that she was aware of the Applicant’s use of ice and marijuana prior to his most recent imprisonment and that she had told him to stop but was not successful in getting him to stop using. She said that he had not drunk alcohol ‘for a while’.[38]
[38] Ibid.
The Tribunal asked Ms Brown what had changed now which would give the Tribunal any confidence that the applicant would not reoffend as he had done in the past. Her answer was that he has learnt from his current imprisonment and the fact that he is now facing deportation.
Jennifer Jones
Ms Jones gave an undated handwritten statement[39] and an undated letter which was included in the G Documents.[40] Ms Jones is the mother of Ms Brown. She confirmed under oath at the hearing that the contents of the statement and the letter were true and correct.
[39] A4.
[40] R1, G19.
Ms Jones evidence was as follows:
·She is an aboriginal elder.
·She is Ms Brown’s mother.
·Ms Brown and the Applicant have been together for about 20 years and have three children and a four year old granddaughter.
·The Applicant’s mother is buried in Western Australia.
·Aboriginal children were in the past taken from their families and it is not fair to take the father form the children in this case. If the Applicant were allowed to stay with his family he will be a better person.
·The Applicant regrets what he has done.
·Her daughter is not coping well with their son who is in his twenties who has mental issues and is a strain on her daughter.
·Ms Brown works cleaning houses all week and is drained and tired when she gets home.
·The Applicant is a good-hearted person and if given another chance would not do anything to jeopardise his family.
At the hearing Ms Jones advised that she only looked after the Applicant and Ms Brown’s 11 year old daughter ‘now and then’ and that she also looked after another granddaughter who was 13 going on 14.
The Applicant had lived with Ms Jones for some time prior to his most recent imprisonment. She lives next door to her daughter Ms Brown. She thought that the Applicant had a close relationship with his daughter. It would be very sad if the Applicant were to be sent back to New Zealand and too much splitting of families occurred when indigenous children were removed from their families in the past.
Vickie Berryman
Ms Berryman gave a letter dated 19 December 2019,[41] the contents of which Ms Berryman confirmed, under oath, as being true and correct (Transcript at 63). The letter stated that she had known the Applicant for around 15 years and has seen how much the Applicant’s three children rely on the Applicant. It would be very sad if the Applicant were to be sent back to New Zealand.
[41] A5.
At the hearing Ms Berryman gave evidence that:
·She is married to the Applicant’s father, Delaine Berryman Snr. She married him in 2008. She too was born in New Zealand.
·The Applicant’s father went back to New Zealand last Christmas for about two weeks. He stayed with his daughter.
·Although she has family in New Zealand she does not really know them and she has not been back since 2007.
·If the Applicant was sent back to New Zealand she and her husband would probably visit the Applicant
Delaine Berryman Snr
Mr Berryman is the Applicant’s father. He provided two letters of support, one dated
29 April 2019[42] and the other dated 19 December 2019.[43] He confirmed under oath that the contents of the two letters were true and correct.[44][42] R1, G14.
[43] A6.
[44] Transcript at 66.
His two letters stated:
·His son has made some mistakes.
·The Applicant was slow to adjust to parenthood but he has a wonderful wife who supports him. They have two boys who are a handful.
·The Applicant’s wife works and the Applicant takes their daughter to and from school.
·The Applicant is a good father. The family is close knit and will come together to support the Applicant. The Applicant has learnt a lesson.
·The Applicant has three children with aboriginal heritage.
·He pleads that the Applicant be given another chance.
At the hearing Mr Berryman was asked about the T shirt that he was wearing which referred to a Berryman family reunion in New Zealand. Mr Berryman said that he had gone to New Zealand last Christmas to attend a Berryman family reunion which five and a half thousand members of the Berryman family had attended. While most of the family of his age had died, he met younger members of the Berryman family and, while he didn’t know the younger ones, he knew their parents. He was in New Zealand for two weeks.
He has lived in Australia for forty years with his family. He has also had children in Australia and has 10 in all. His mother and father are buried in Australia. He was in regular contact with his cousins in New Zealand through Facebook and that is how he found out about the family reunion.
Most of his immediate family is in Australia. There are in total 400 members of the family in Australia, 10 in his immediate family. He has brothers, nephews and nieces living in Australia.
He went back to New Zealand frequently in the 1980s, but when his parents moved to Australia he stopped going back on a regular basis. In relation to whether he would visit the Applicant if he were to be returned to New Zealand, Mr Berryman said that he probably would. He would also put the Applicant in touch with the Berryman family members in New Zealand with whom he is in contact on Facebook.
Mr Berryman gave evidence that things had changed in New Zealand since he left there 40 years ago. In the area from which he came, the people now speak the Maori language rather than English. His daughter no longer lives in New Zealand. She married a Russian and now lives in Germany. She still has a house in New Zealand which is rented out.
CONSIDERATION
Does the Applicant pass the character test?
Failure of the character test arises as a matter of law: Re Harrison and Minister for Immigration and Citizenship at [63].[45] The character test is defined in s 501(6) of the Act. Under s 501(6)(a) of the Act, a person will not pass the character test if the person has ‘a substantial criminal record’. This phrase, in turn is defined, relevant to this case, in
s 501(7)(d) (see [20] above) which provides that a person will have a substantial criminal record if they have been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more. That is clearly the case (the Applicant has been sentenced to terms of imprisonment totalling 116 months - see Annexure) and the Applicant concedes that he does not pass the character test.[46]
[45] [2009] AATA 47; (2009) 106 ALD 666.
[46] Applicant’s SFIC para. 22.
As the Applicant does not pass the character test he cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked. The issue therefore is whether the discretion under s 501CA(4)(b)(ii) should be exercised. In other words, is there another reason why the original decision should be revoked?
PRIMARY CONSIDERATIONS
First primary consideration: Protection of the Australian community from criminal or other serious conduct (Direction 79 para. 13(2)(a))
Paragraph 13.1 of Direction 79 provides that when decision-makers are considering the protection of the Australian community, they:
(1) ...should have regard to the principle 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. Remaining in Australia is a privilege that Australia confers on noncitizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2) Decision-makers should also give consideration to:
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.
Nature and seriousness of the conduct (paragraph 13.1(2)(a))
Paragraph 13.1.1(1) of Direction 79 provides:
1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a. The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b. The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c. The principle that 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, are serious;
d. Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e. The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f. The cumulative effect of repeated offending;
g. Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h. 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);
i. Where the non-citizen is in Australia, that 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 is serious, as is an offence against section 197A of the Act;
The Respondent contends[47] that the Applicant’s criminal record is extensive, comprising approximately 80 offences over a 28 year period and that the cumulative effect of this record, as well as the frequency of offending, is of significant concern.
[47] Respondent’s SFIC para. 26.
It is the case that the Applicant’s adult criminal record is extensive and that is obviously a concern to the Tribunal.
Traffic offences
As the Respondent notes, the Applicant’s driving offences as an adult span the period from 1991, when the Applicant was 18 years old, up to 2019. He has four convictions for driving under the influence of alcohol, three convictions for reckless driving and in excess of ten convictions for driving without authorisation. On any criterion his driving record is very bad.
The facts of his more serious driving offences are as follows:
Aggravated reckless driving – December 2018 (conviction in February 2019)
The facts of the Applicant’s offending are set out in the sentencing remarks of Magistrate De Maio dated 11 February 2019[48] and the Statement of Material Facts[49] which were read to the court prior to sentence in accordance with s 129(3) of the Criminal Procedure Act 2004 (WA). The sentencing remarks and Statement of Material Facts disclose that on 1 December 2018 at 12.17am, the Applicant was driving an unregistered Nissan Skyline coupe with false registration plates in Girrawheen. He was speeding and came to the attention of police, who activated their emergency lights and sirens in an attempt to stop him. The Applicant accelerated away from police, crossing to the incorrect side of the road multiple times. At one stage, the Applicant reached 140km/h in a 50km/h zone. Due to the excessive speed at which he was travelling, the Applicant failed to negotiate a round-a-bout, causing him to damage his front right wheel. The Applicant lost control of his vehicle, which spun 180 degrees and slid sideways onto the verge, narrowly missing a residential retaining wall and boundary fence. The Applicant continued to drive the vehicle, travelling a further 500m before stopping on the incorrect side of the road (due to the damaged condition of the vehicle). He was then apprehended by police.
[48] R1, G8.
[49] R1, G9.
Magistrate De Maio remarked that it was lucky that the Applicant did not crash into anyone during the incident, and that the Applicant had indicated that he had chosen to drive at that time in the morning because of the fact that there was no one on the road which her Honour considered to be a ‘blessing’.[50] Her Honour imposed the minimum mandatory sentence for a second offence of six months and one day imprisonment, the Applicant having been convicted of the same offence in 2014 (see Annexure).
[50] R1, G8/37.
Her Honour commented that given the Applicant’s schizophrenia, she considered that general deterrence considerations did not apply. However, her Honour did consider that there was a need for specific deterrence, given the Applicant’s prior record, particularly the previous conviction for reckless driving in 2014. Her Honour disqualified the applicant from driving for 2 years.
Aggravated reckless driving – December 2013 (conviction in June 2014)
The Statement of Material Facts relating to this offence[51] records the circumstances of this offence as follows:
At about 11:05pm on Friday 20th December 2013, the accused drove a Nissan Skyline, registered number 1CMP603 in a westerly direction on Boyare Avenue…
Police travelling in an easterly direction on Boyare Avenue observed the vehicle, conducted a u-turn and attempted to catch up to the vehicle in order to stop it.
The accused accelerated away and made a right hand turn into Pendula Gardens. As he made this turn he travelled onto the incorrect side of the road.
Police were in a fully marked station wagon, now travelling approximately 40 metre behind the accused, activated the cars emergency lights and sirens, signalling the vehicle to stop.
The accused continued to accelerate beyond the 50 kilometres per hour, built up area speed limit before making a left turn onto Dryandra Drive. The accused drove through the round about that intersects with McFarlane Circle at speed, heading towards Torquate Drive.
The accused turned left onto Torquate Drive then left onto Boyare Avenue where he continued to accelerate. The accused travelled along Boyare Avenue at speeds reaching 110kph. The speed limit for Boyare Avenue is 50kph.
The accused came up behind another vehicle travelling in the same direction on Boyare Avenue. The accused then travelled onto the wrong side of the road and through a round about the incorrect way in order to evade police.
Due to the manner of the accused’s driving, Police were forced to abort the pursuit.
[51] R2, SG2/902.
The Applicant was cross-examined about this offence. The following exchange took place:
COUNSEL: It’s a very similar offence, wasn’t it?
APPLICANT: Yes.
COUNSEL:Were you driving an unlicensed car then?
APPLICANT: Yes.
COUNSEL: Yes, and you saw the police and you accelerated away and you travelled on the incorrect side of the road. The police - - -?
APPLICANT: I just crossed the roundabout.
COUNSEL: Well, the police - - -?
APPLICANT: I didn’t - I just - they weren’t going to get me for reckless driving, they told me that at the cop stop.
COUNSEL: Well, the police were pursuing you and they had their lights on and they had the siren on?
APPLICANT: Yes, but he told me once he’d picked me up that “I won’t get you for reckless driving”.
COUNSEL: Well, they didn’t pick you up though?
APPLICANT: No, well, I got away.
COUNSEL: Because you were speeding off at 110 kilometres an hour?
APPLICANT: I got away.
COUNSEL: Yes. And you got away - - -?
APPLICANT: But they picked me up finally at my house.
COUNSEL: You drove the wrong way through a roundabout?
APPLICANT: That’s it. That’s all I done wrong.
COUNSEL: That’s all you did wrong?
APPLICANT: Yes.
COUNSEL: You were in a police chase driving on the wrong side of the road, wrong way through a roundabout at 110 kilometres per hour all because you didn’t want the police to catch you driving an unlicensed vehicle. And the police actually aborted the pursuit because of the way you were driving. It was exactly the same as what you did in 2018, isn’t it?
APPLICANT: It wasn’t just because of the way I was driving, it’s because they couldn’t catch me.
Driving without authorisation – May 2008 (conviction in July 2008)
On 7 May 2008 the Applicant was driving a sedan in Mirrabooka. He was stopped by police, where it was ascertained that he was not authorised to drive and was subject disqualification orders. On 8 July 2008, the Applicant was sentenced to 8 months’ imprisonment.[52]
[52] R1, G6/32.
There is a letter from the Applicant’s general practitioner, Dr Brendan Connor, dated
12 May 2008, which appears to be related to this prosecution.[53] Dr Connor indicates that he understands that the Applicant ‘was recently caught driving under suspension and I believe this is as a result of his mental health problem and dosing problems associated with antiviral treatment’. In the letter, Dr Connor expresses the belief that the Applicant may have had a defence to the charge, however, that cannot be accepted by the Tribunal given the Applicant’s conviction. Nevertheless, Dr Connor indicates that the Applicant has a history of paranoid schizophrenia, was taking medication in May 2008, and:
[the Applicant] is generally well controlled on his medication however recently he has been on antiviral treatment from SCGH for hepatitis C. As a result has been getting increased sedation and has intermittently has [sic] needed to ceaseg [sic] his schizophrenia medication to have normal functioning. At these times has not been in full mental health and sometimes may make errors in judgment.
[53] R2, G2/673.
Driving under the influence – June 2007 (convicted in July 2007)
At 12.50am on 7 June 2007, the Applicant was driving erratically on Patterson Road in Kwinana Beach. Police received two separate phone calls to attend due to the Applicant’s driving. Police observed the Applicant swerve heavily over both north bound lanes and on to the centre of the dividing strip. The Applicant was pulled over by police, and breath analysis conducted resulting in a blood alcohol content reading of 0.185%, calculated to be 0.176% (0.176g/100ml) at the time of driving.
On 18 July 2007 the Applicant was sentenced to 6 months and 1 day’ imprisonment, suspended for 18 months.[54] He was disqualified from driving for 2 years.
[54] R1, G/32.
The Applicant has, in total 30 traffic convictions for which he has received terms of imprisonment totalling 53 months, most of which have been served concurrently and/or were suspended. His driving record is appalling. Tribunals have repeatedly observed the gravity of driving offences, particularly such serious and repeated offences as have been committed by the Applicant. In Mayes and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs at [50]-[53][55] Senior Member Dr M Evans said:
[55] [2020] AATA 32.
Licensing rules are in place to ensure drivers are suitably qualified and responsible in order to protect innocent road users from harm. Additionally, as well as these types of licensing related offences, the Applicant also has convictions for driving under the influence of alcohol (2008), reckless driving (2008) and driving under the influence of an illicit drug (2014). Member Webb, in Apire and Minister for Immigration and Border Protection [2014] AATA 193 stated at [16] that “…driving a motor vehicle without a license while under the influence of alcohol is a serious matter that should not be trivialised or passed off too lightly.”
Senior Member Tavoularis in Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561 (Bartlett) also noted the serious nature and adverse consequences of driving offences. In Bartlett, Senior Member Tavoularis stated at [43]-[45]:
43. There is, to my mind, nothing to be said in mitigation for serious irresponsibility in the management and control of a motor vehicle. His offences of drink driving and unlicensed driving clearly point to an incapacity to distinguish right from wrong and to otherwise conform to the rules of Australian society insofar as operation of a motor vehicle on a public road is concerned. The catastrophic potential of losing control of a motor vehicle as a result of being affected by alcohol and/or prohibited substances is the subject of constant campaigns by governments at all levels.
44. I have similar concerns about the Applicant’s failure to realise the potential adverse impact arising from unlicensed driving. This Applicant (as is the case with virtually all drivers) knew or ought reasonably to have known the potentially serious adverse consequences of unlicensed driving, or driving an unregistered/uninsured vehicle, for other road-users. Whilst no expertise in the motor insurance industry, it is common knowledge that there are insurance implications for unlicensed drivers and/or drivers of unregistered/uninsured vehicles who become involved in motor vehicle accidents. Again, for the Applicant to ignore this obvious and serious consequence of his driving conduct demonstrates an incapacity to distinguish right from wrong and to otherwise conform to the insurance/registration regime of the Australian community as it relates to the ownership and operation of a motor vehicle.
45. The Applicant’s driving offences may, at first blush, be considered relatively minor when viewed against the balance of his history. However, the theme of attendant recklessness and indifference to laws and rules governing the operation of a motor vehicle is, in and of itself significant. Indeed laws that protect road users ‘go to the essential safety of the community’. Other parts of his criminal history are perhaps more serious than his driving/traffic convictions. But, his failure to understand right from wrong when operating a motor vehicle – be it drinking and driving, driving without a licence, or driving an unregistered vehicle – can only lead me to conclude that this component of his history further confirms the seriousness of his offending and potential risk to the community.
In MJNN and Minister for Home Affairs [2019] AATA 3205, this Tribunal applied the above comments of Member Webb and Senior Member Tavoularis at [53] and [54]. The Tribunal stated, at [55]:
…The Applicant’s record of repeat driving offences tends to indicate an ability [sic] to distinguish right from wrong, and more particularly an inability to appreciate the adverse consequences of this type of offending which places safety of members of the public at risk. As noted by Senior Member Tavoularis, there is a potential to lose control of a motor vehicle whilst driving under the influence of alcohol which can have catastrophic consequences including injury or death to other road-users. It is for these reasons that the Tribunal finds that the totality and nature of the Applicant’s driving offences should also be viewed as serious
As this Tribunal noted in Sach and Minister for Home Affairs[122] and Palmer and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[123] the above paragraph directs the decision-maker to consider the impact of a decision not to revoke cancellation of the visa on members of the Australian community, including the victims. That is curious given that a decision not to revoke the cancellation of the visa would result in the non-citizen being removed from Australia. It is not clear how the offending non-citizen being forced to leave Australia would impact victims, other than positively.
[122] [2019] AATA 5173.
[123] [2020] AATA 88.
The Tribunal adopts the course taken in the above two matters. The considerations listed in paragraph 14 of Direction 79 are not exhaustive and the Tribunal assumes, in any event, that paragraph 14.4(1) was meant to direct the decision maker to consideration of the impact of revoking the cancellation rather than not revoking the cancelation.
The Tribunal therefore considers that latter consideration.
The primary victim of the Applicant’s offending is Ms Brown. She supports the revocation of the cancellation of the Applicant’s visa. The impact on Ms Brown of the Applicant being removed from Australia is considered and taken into account elsewhere in this decision in the context of ‘the effect of non-revocation on the non-citizen’s immediate family in Australia’ for the purposes of paragraph 14.2(1)(b) of Direction 79 (see [156] above). While Ms Brown’s evidence and submissions went primarily to the impact that the Applicant’s removal would have on her as his partner and the mother of his children, the Tribunal does also give some, albeit minor, weight to the fact that Ms Brown is also a victim for the purposes of the consideration under paragraph 14.4(1) of Direction 79.
Extent of impediments if removed (14(1)(e))
Paragraph 14.5(1) of Direction 79 provides:
(1) 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 substantial language or cultural barriers; and
c) Any social, medical and/or economic support available to them in that country.
The Applicant in his SFIC says that ‘he would suffer financial, emotional and psychological problems should he be removed away from his children, and whole family’ (para. 144) and that he ‘would suffer further ongoing mental anguish should he be permanently separated from his children’ (para. 145).
The Applicant did not identify any particular impediment that he would face in establishing himself and maintaining basic living standards.
The Applicant is, and has been for some time, on a disability support pension because of his schizophrenia. He has not worked for many years and the Tribunal accepts that he is unlikely to in the future. There is nothing to indicate, and the Applicant did not seek to argue, that, as a New Zealand citizen, he would not be entitled to access New Zealand social security. Similarly there is nothing to indicate, and again the Applicant does not seek to argue, that he would not have access to adequate treatment, including medication, for his schizophrenia.
The Applicant also conceded that he had previously considered returning to New Zealand. A North Metropolitan Area Health Service Outpatient Note dated 24 October 2014[124] recorded that ‘He is considering going back to NZ with his son, but was unsure whether this was the right thing to do and agreed that perhaps this was a rash decision to make whilst unwell’. When cross-examined on this note the Applicant’s response was that his ‘son wouldn’t go back to New Zealand’ and then when asked whether he remembered considering going back to New Zealand he said ‘I would like to do that’.[125]
[124] R2, SG1/279.
[125] Transcript at 45.
As noted above, the Applicant’s father attended a reunion of the Berryman family in
New Zealand last Christmas attended by some five and a half thousand members of the Berryman family.[126] His evidence was that he stays in touch with the Berryman family in New Zealand through Facebook.[127] When asked whether he would get in touch with members of the family in New Zealand to assist the Applicant if he were forced to return to New Zealand, the Applicant’s father said that he would contact the New Zealand family members and get them to provide support to the Applicant if he had to relocate to New Zealand.[128]
[126] Transcript at 66.
[127] Transcript at 67.
[128] Transcript at 68.
The Applicant’s father did say that since he left New Zealand about 40 years ago, there has been some cultural change, in particular in the area from which he came the Maori language was more prevalent than it was when he lived there.
The Respondent’s counsel in closing made the following submissions:[129]
…in relation to the extent of impediments if removed, whilst there would no doubt be some adjustment difficulties, the applicant would not face extensive impediments if he were to return to New Zealand. It is a first-world country broadly analogous with Australia in terms of employment, education, social security, health services, and safety. There are, of course, no significant cultural or language difficulties.
It is true that he arrived here as a young child, but he also returned at the age of 17, when he would have had more of an appreciation, and remained there for six months. He stayed with a cousin. He met many family members. His father has gone back regularly. His father went back as recently as last Christmas. He gave indication that - he indeed wore a T-shirt celebrating the fact there was a huge Berryman family reunion, of some five and a half thousand people. His father gave evidence that he was in contact with many of these people through Facebook, and that he would do what he could to assist to put his son in contact with some of those people.
His father gave evidence that he might try and visit him, and his father gave evidence that he might even speak to his sister about her house that she’s currently renting out in New Zealand. That of course does not diminish from the fact that there will be difficulties in returning to New Zealand, but certainly not insurmountable. There is - as I often make the submission, there is the agency such as the Prisoners Aid and Rehabilitation Society. They assist New Zealand citizens who are removed from Australia with matters such as accommodation and setting up bank accounts and access to services.
There is no evidence in particular that the applicant would not be able to obtain adequate treatment for his mental health conditions in New Zealand, and certainly would be entitled to the same access to healthcare as other New Zealand citizens. So whilst there will be some transitional difficulties, the reality is that it would be no more than that, and certainly any of those impediments would not outweigh the significant concerns about the risk of the applicant’s offending, and offending in a serious way.
[129] Transcript at 81.
The Tribunal agrees with the above summary. Obviously the Applicant’s schizophrenia would be an impediment to the Applicant establishing himself, and he will not have his immediate family to support him, however, it does seem that the broader family, of which there appear to be many, may be able to provide support to him.
Having said that, it is likely that there will be impediments to the Applicant establishing himself, but there is no evidence that he would not be entitled to the same social services and medical services available to other New Zealand citizens and it is also likely that he will have some support in establishing himself through the family connections made by his father. This consideration does weigh in favour of revocation of the cancellation of the Applicant’s visa, however, the Tribunal considers that only minor weight should be given to this consideration.
The Weighing Exercise
Guidance is given by Direction 79 as to how the decision-maker should apply the primary and other considerations. Paragraphs 8(3), (4) and (5) of Direction 79 are relevant. They provide:
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While these cases were generally looking at that exercise under Direction 65, the same considerations apply to the exercise required by Direction 79 which is materially in the same terms. The leading cases in this regard are Suleiman v Minister for Immigration and Border Protection[130] which was discussed by the Full Court of the Federal Court in Minister for Home Affairs v HSKJ.[131]
[130] [2018] FCA 594.
[131] [2018] FCAFC 217; (2018) 363 ALR 325.
Senior Member Dr M Evans in CZCV at [164] summarised the legal position following the various cases referred to above as follows:
Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no. 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving another consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so.
This Tribunal agrees with the approach taken by Senior Member Dr Evans.
Looking at the first primary consideration, the protection of the Australian community, the relevant consideration is whether the risk is an unacceptable one taking into account the nature and seriousness of the harm that would be caused if there was a repeat of the behaviour and the likelihood of that occurring. For the reasons set out above, the Tribunal finds that the likelihood of the Applicant re-offending is high and that the harm that would be caused is significant. The risk is not an acceptable one. The Tribunal finds that in the present case this consideration weighs heavily against of revocation of the cancellation of the Applicant’s visa.
The second primary consideration, the best interests of minor children, weighs in favour of revocation of the cancellation of the visa. This consideration is, however, significantly outweighed by the first primary consideration.
The third primary consideration weighs against the revocation of the cancellation of the Applicant’s visa.
In relation to the “other considerations”, the consideration of strength, nature and duration of the ties that the Applicant has to Australia (Direction 79 paragraph 14(1)(b)), including the impact that the Applicant’s deportation would have on Ms Brown and the other members of the Applicant’s family, weighs in favour of the revocation of the cancellation of the visa. The consideration of the impediments that the Applicant would face if he is returned to New Zealand also weighs marginally in favour of revocation as does the consideration of the harm, primarily psychological, that that Applicant would face if removed to New Zealand.
The first primary consideration, the protection of the Australian community, and, to a lesser extent, the third primary consideration, the expectations of the Australian community, in the Tribunal’s view, outweigh the considerations that weigh in favour of the revocation of the cancellation of the Applicant’s visa.
DECISION
The decision of the delegate of the Respondent made on 11 December 2019 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (temporary) visa under s 501CA(4) of the Migration Act 1958 is affirmed.
I certify that the preceding 196 (one hundred and ninety-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
............................. [sgd]......................................
Dated: 5 March 2020
Date(s) of hearing: 19 February 2020 Applicant: In person Counsel for the Respondent: Mr A Gerrard Solicitors for the Respondent: Australian Government Solicitor ANNEXURE – APPLICANT’S CRIMINAL RECORD
Traffic Offending
Court Court Date Offence Court Result Joondalup Magistrates Court 11 Feb 2019 197. Aggravated reckless driving 6 mths 1 day’ imp. 198. Driver failed to stop (circ. of aggravation) $250 fine (global); MDL disq 2 yrs 199. Drive a vehicle with false Perth Magistrates Court 13 Jun 2014 Aggravated reckless driving
Community Based Order for 12 mths (CC); MDL disq 2 yrs (CC) Driver failed to stop (circ. of aggravation) Community Based Order for 12 mths (CC); MDL disq 2 yrs (CC) 8 Jul 2008 Drive vehicle while not authorised 8 mths’ imp 18 Jul 2007 Driving under the influence 200. 6 mths 1 day’ imp susp
for 18 mths; MDL disq 2 yrs
Joondalup Magistrates Court 19 Oct 2005 Reckless Driving 6 mths’ imp (CC); MDL canc & disq 12 mths (CC) Drive vehicle while not authorised 8 mths’ imp (CC); MDL canc & disq 9 mths (CM) Perth Court of Petty Sessions 12 Nov 2001 Drive vehicle while not authorised Fine $300; MDL canc & disq 3 mths Refuse to supply or provide false name and address Fine $100; MDL canc & disq 3 mths Refused breath test Fine $600; MDL canc & disq 6 mths 30 Jun 2000 Drive vehicle while not authorised 5 mths’ imp; MDL canc & disq 9 mths (CM) 11 Jun 1999 Refuse to supply or provide false name and address Fine $50; MDL canc & disq 3 mths (CC) Drive vehicle while not authorised 4 mths’ imp; MDL canc & disq 12 mths (CM) Drive a vehicle with false plate Fine $50; MDL canc & disq 3 mths (CC) Drive vehicle while not authorised 6 mths’ imp; MDL can & disq 12 mths (CM) 21 Sep 1998 Drive vehicle while not authorised 4 mths’ imp, susp for 12 mths; MDL canc & disq 12 mths (CM) Refuse to supply or provide false name and address Fine $100; MDL canc & disq 3 mths (CC) Drive unregistered vehicle Fine $50 2 Nov 1995 Drive unregistered vehicle Fine $100 26 Dec 1992 201. Refuse to supply or
provide false name and address
Fine $100; MDL canc & disq 3 mths (CC) Drive under the influence (excess 0.08%) Fine $600; MDL can & disq 12 mths (CC) Drive vehicle while not authorised Fine $500; MDL canc & disq 12 mths (CM) Fremantle Court of Petty Sessions 26 Dec 1992 Drive under the influence (excess 0.08%) Fine $600; MDL can & disq 12 mths (CC) Drive vehicle while not authorised Fine $500; MDL canc & disq 12 mths (CM) Perth Court of Petty Sessions 11 Sep 1992 Drive vehicle while not authorised Fine $750; MDL canc & disq 12 mths (CM) 1 Nov 1991 202. Exceed speed limit by
15-29 km/h
Fine $60 Drive under the influence (excess 0.08%) Fine $600; MDL can & disq 12 mths (CC) Drive vehicle while not authorised Fine $200; disq HOLD/OBT MDL 3 mths (CC) Refuse to supply or provide false name and address Fine $300; disq HOLD/OBT MDL 3 mths (CC) General Offending
Court Court Date Offence Court Result Perth Magistrates Court 2 Jan 2014 203. Breach of violence restraining order 204. 6 mths 1 day’ imp, sups
for 12 mths
6 Jun 2012 205. Breach of violence restraining order Community Based Order for 6 mths 206. Aggravated common assault 207. 6 mths 1 day’ imp, sups
for 6 mths
18 May 2012 208. Breach of violence restraining order Community Based Order for 6 mths 28 Dec 2011 209. Breach of violence restraining order Fine $200 18 Oct 2011 210. Breach of violence restraining order Fine $300 211. Criminal damage Fine $200 Joondalup Magistrates Court 4 May 2011 212. Breach of violence restraining order Fine $200 Perth Magistrates Court 11 Jun 2007 213. Assault occasioning bodily harm 15 mths’ imp, sups for 2 yrs Joondalup Magistrates Court 19 Oct 2005 214. Breach of bail x 2 6 mths’ imp (CC) (on each) 215. Disorderly behaviour in public Fine $500 216. Criminal damage 4 mths’ imp (CC) 217. Breach Suspended Imprisonment order x 3 Counts 1-2: 9 mths’ imp (CC) (on each); Count 3: 1 mth’ imp (CC) Perth Magistrates Court 8 Jun 2005 218. Assault public officer x 2 9 mths’ imp, susp for 15 mths (on each) (CA) 219. Breach Intensive Supervision Order Fine $500 220. Breach Intensive Supervision Order x 2 Fine $200 (on each) 221. Breach of bail 1 mth’ imp, susp for 12 mths (CC) Perth Court of Petty Sessions 8 Nov 2004 222. Breach of bail Intensive Supervision Order for 12 mths, w/ 60 hrs; community work 27 Oct 2004 Hinder Police Intensive Supervision Order for 12 mths 223. 14 Aug 2003 Give false personal details to police Intensive Supervision Order for 12 mths Stealing x 2 Fine $250 (on each) Common Assault Fine $400 12 Feb 2003 Disorderly conduct Fine $150 1 Feb 2003
Disorderly obscene language
Fine $100
12 Nov 2001 Fraud 4 mths’ imp (CC) Stealing 4 mths’ imp (CC) False bail undertaking Fine $100 Breach bail x 2 Fine $100 (on each) 30 Jun 2000 Breach of bail 1 mth’ imp (CC) 11 Jun 1999 Breach of bail x 2 224. Count 1: Fine $50
Count 2: 1 mth’ imp (CC)
Possess offensive weapon 1 mth’ imp (CC) 9 Jun 1999 Breach Community Based Order x 2 6 mths’ imp (CC) (on each) 24 Jun 1997 Receiving Community Based Order for 18 mths, w/ 120 hrs; community service Aggravated Burglary & Commit offence (in dwelling) Community Based Order for 18 mths, w/ 120 hrs; community service False name and/or address Fine $300 Joondalup Court of Petty Sessions 23 Jun 1995 False name and/or address Fine $100 Possess smoking implement Fine $100 Fremantle Court of Petty Sessions 26 Dec 1992 Breach of bail Fine $300 Whakatane District Court (New Zealand) 17 Jul 1991 Disorderly behaviour Fine $150
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Statutory Construction
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Natural Justice
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Remedies
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