BMGT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2022] AATA 2148

BMGT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2148 (6 July 2022)

Division:GENERAL DIVISION

File Number:          2021/1486

Re:BMGT

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:6 July 2022

Place:Sydney

The decision under review is set aside and, in substitution, the cancellation of the Applicant’s visa is revoked under subsection 501CA(4) of the Migration Act 1958 (Cth).

..................................[SGD]......................................

Dr L Bygrave, Member

CATCHWORDS

MIGRATION – mandatory cancellation of visa – Special Category (Class TY) (Subclass 444) visa – visa cancelled under s 501(3A) because Applicant did not pass character test – substantial criminal record – remittal from the Federal Court – Ministerial Direction No. 90 – primary considerations – protection of the Australian community – nature and seriousness of Applicant’s conduct – seriousness of offending and future risk – best interests of minor children in Australia – expectations of the Australian community – extent of impediments if removed – extent of impediments if removed – Impact on victims – links to the Australian community – the strength, nature and duration of ties to Australia – decision set aside and substituted

LEGISLATION

Migration Act 1958 (Cth) ss 499, 500, 501, 501CA

Children (Criminal Proceedings) Act 1987 (NSW)

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185

SECONDARY MATERIALS

Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Dr L Bygrave, Member

6 July 2022

INTRODUCTION

1. The Applicant is a 22-year-old male who is a citizen of New Zealand. He arrived in Australia on 8 April 2008 and was granted a Class TY (Subclass 444) Special Category (temporary) visa (visa).[1]

   [1] Exhibit G-G13, page 78.

2. On [redacted] November 2019, the Applicant was convicted of offences in the District Court of New South Wales (NSW) including ‘be carried in conveyance taken w/o consent of owner-T2’, ‘robbery armed with offensive weapon-SI’ (five counts) and ‘robbery in company cause wounding/GBH-SI’ (one count), and was sentenced to an aggregate term of imprisonment of six years and a non-parole period with conditions of three years.[2]

   [2] Exhibit G-G9, pages 30-34.

3. On 23 January 2020, the Applicant was notified in writing by the Department of Home Affairs (the Department) that his visa was mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) because he did not pass the character test on the basis that he had a ‘substantial criminal record’ as defined in subsection 501(7) of the Act because he had been sentenced to a term of imprisonment of 12 months or more.[3]

   [3] Exhibit G-G14.

4. The Applicant completed a Request for Revocation of a Mandatory Visa Cancellation Under S501(3A) form dated 18 February 2020 and lodged a Personal Circumstances Form.[4]

   [4] Exhibits G-G11 and G-G12.

5. On 26 October 2020, a delegate of the Minister[5] decided not to revoke the decision to cancel the Applicant’s visa.[6] The Applicant was re-notified of this decision on 9 March 2021.[7]

   [5] Referred to in the decision as ‘Delegate of a Minister administering the Migration Act 1958’.

   [6] Exhibit G-G7, page 19.

   [7] Exhibit G-G4, page 13.

6. On 12 March 2021, the Applicant filed an application for review to the General Division of the Administrative Appeals Tribunal (the Tribunal) and the Tribunal affirmed the delegate’s decision on 1 June 2021.

7. The Applicant subsequently lodged an appeal to the Federal Court of Australia (the Federal Court).

8. On 30 November 2021, the Federal Court made orders quashing the decision of the Tribunal and remitted the application to the Tribunal by consent for redetermination.[8]

   [8] Order by Justice Mortimer, Federal Court of Australia, 30 November 2021.

9. This matter was heard by the Tribunal (differently constituted) by videoconference on 15 and 16 June 2022. The Applicant was represented by counsel; he attended the hearing and provided oral evidence from Yongah Hill Immigration Detention Centre.

   RELEVANT LEGISLATION AND POLICY

   The power to revoke a visa cancellation

10. Subsection 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 the person does not pass the character test because of the operation of subsections 501(6) and 501(7).

11. Subsection 501(6) of the Act defines the character test. Relevantly, paragraph 501(6)(a) of the Act states that a person does not pass the character test if the person has a ‘substantial criminal record’ as defined by subsection 501(7). Subsection 501(7) of the Act includes the provision that, for the purposes of the character test, a person has a ‘substantial criminal record’ if ‘the person has been sentenced to a term of imprisonment of 12 months or more’.

12. In accordance with subsection 501CA(4) of the Act, the Minister may revoke the original cancellation decision if the person makes representations and the Minister is satisfied that the person passes the character test or there is another reason why the original decision should be revoked. This is a discretionary power.

13. I am satisfied the Applicant does not pass the character test in subsection 501(6) of the Act because his criminal record, which includes a sentence of imprisonment for six years (aggregate), meets the statutory definition of a ‘substantial criminal record’ in subsection 501(7) of the Act. The Applicant does not dispute this finding.

14. Consequently, pursuant to subparagraph 501CA(4)(b)(ii) of the Act, I consider whether there is another reason to revoke the decision to cancel the Applicant’s visa.

15. The power of the Tribunal to review the decision to cancel the Applicant’s visa is provided by subsection 500(1) of the Act. The Minister has given written directions as to the exercise of the power to review the decision under subsection 499(1) of the Act and subsection 499(2A) of the Act provides that I must comply with these directions.

16. The relevant direction is Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction No. 90), which commenced on 15 April 2021.

    Direction No. 90

17. Direction No. 90 provides the following guidance on how the discretion is to be exercised:

    6. Exercising the discretion

    Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

18. The Minister sets out the principles in paragraph 5.2 that provide a framework to approach the task of deciding whether to revoke a mandatory visa cancellation under section 501CA of the Act. These principles 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)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    (4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

    (5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be  insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.

19. Primary considerations are listed in section 8 of Direction No. 90 as follows:

    (1)protection of the Australian community from criminal or other serious conduct;

    (2)whether the conduct engaged in constituted family violence;

    (3)the best interests of minor children in Australia; and

    (4)expectations of the Australian community.

20. Other considerations are set out at section 9 of Direction No. 90. These include (but are not limited to):

    (1)international non-refoulement obligations;

    (2)extent of impediments if removed;

    (3)impact on victims;

    (4)links to the Australian community, including:

    (a)strength, nature and duration of ties to Australia; and

    (b)impact on Australian business interests.

21. Section 7 of Direction No. 90 states that in applying the primary and other considerations: information and evidence from ‘independent and authoritative sources’ should be given appropriate weight; primary considerations ‘should generally be given greater weight’ than the other considerations; and one or more primary considerations ‘may outweigh other primary considerations’.

    PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT

22. Paragraph 8.1 of Direction No. 90 outlines the Government’s commitment to protecting the Australian community ‘from harm as a result of criminal activity or other serious conduct by non-citizens’ and requires that I give consideration to:

    (a)the nature and seriousness of the Applicant’s conduct to date; and

    (b)the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.

    The nature and seriousness of the Applicant’s conduct to date

23. Paragraph 8.1.1 requires that I consider the nature and seriousness of the Applicant’s ‘criminal offending or other conduct to date’.

24. The Applicant was born in New Zealand in 2000 and arrived in Australia with his immediate family in 2008 when he was seven years old. He has not since returned to New Zealand.

    The Applicant’s education

25. The Applicant commenced his primary school education in New Zealand and attended a mainstream primary school when he arrived in Australia. After ongoing behavioural issues at school, the Applicant was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) in ‘year four or five’; he subsequently commenced medication but stopped in year six after he became ‘very withdrawn’.[9]

    [9] Exhibit A3.

26. In August 2010, the Applicant was assessed using the Wechsler Intelligence Scale for Children Fourth Edition (WISC-IV) and his ‘results placed his overall intellectual functioning in the borderline mild disability range’.[10] Due to his behaviour and intellectual function, the Applicant was placed in an ‘emotional disorder behavioural disorder support class’ in years five and six of primary school.[11]

    [10] Exhibit TB-TB1, page 31.

    [11] Exhibit TB-TB2, page 54.

27. The Applicant initially attended a mainstream high school but transferred to a school for ‘students with a mild intellectual disability and/or behavioural and emotional disorders’ in 2013.[12] The Applicant was assessed by his teacher who completed the Vineland Adaptive Behaviour Scales Second Editions (Vineland II) in October 2014; results from this assessment showed his overall adaptive functioning at school was ‘in the low range’, which is ‘what is expected from a student with moderate intellectual disability’.[13]

    [12] Exhibit G3.

    [13] Exhibit TB-TB1, page 31.

28. Reports from the Applicant’s high school was that his attendance decreased in 2017 and he ‘struggled to complete the required work needed for him to graduate’ high school.[14]

    [14] Ibid.

29. In a statement dated 12 April 2022, the Applicant wrote that he was ‘always getting into trouble as a kid’ as he had ‘anger problems’ and would ‘easily snap at stuff’.[15] He explained that he had learning difficulties, ‘found school really hard’ and was ‘embarrassed about not being able to read or write’.[16] The Applicant confirmed in his oral evidence that he experienced bullying and felt ‘uncomfortable’ at school due to his learning difficulties, and so regularly skipped classes and school.[17]

    [15] Exhibit A1.

    [16] Exhibit A1.

    [17] Oral evidence of the Applicant on 15 June 2022, transcript of proceedings, page 17.

    The Applicant’s criminal history

30. The Applicant’s criminal record is detailed in an Australian Criminal Intelligence Commission (ACIC) report dated 10 December 2019 and includes convictions for the following offences:

    ·[redacted] Children’s Court, [redacted] April 2015.

    oOffence: robbery in company-SI. Result: bond 12 months supervision juvenile justice.

    ·[redacted] Children’s Court, [redacted] March 2016.

    oOffence: robbery in company-SI. Result: (call up) bond 12 months.

    ·[redacted] Children’s Court, [redacted] September 2017.

    oOffence: assault officer in execution of duty-T2. Result: bond 6 months, no conviction.

    oOffence: assault officer in execution of duty-T2. Result: bond 9 months, no conviction.

    oOffence: resist officer in execution of duty-T2. Result: bond 6 months, no conviction.

    ·[redacted] District Court, [redacted] November 2019.

    oOffence: be carried in conveyance taken w/o consent of owner-T2. Result: imprisonment (aggregate) six years, non-parole period with conditions of three years.

    oOffence: five counts – robbery armed with offensive weapon-SI. Result: imprisonment (aggregate) six years, non-parole period with conditions of three years.

    oOffence: one count – robbery in company cause wounding/GBH-SI. Result: imprisonment (aggregate) six years, non-parole period with conditions of three years.[18]

    [18] Exhibit G-G9.

31. In relation to the offences dealt with in the Children’s Court on [redacted] April 2015, a NSW Police Facts Sheet set out details of a robbery that occurred in October 2014, during which the Applicant (then aged 14 years old) and another male threatened to stab a young male waiting at a bus stop if he did not give them his phone, and the young male victim subsequently handed over his phone.[19] In relation to this offence, the Applicant was sentenced to a good behaviour bond for 12 months.[20] A NSW Juvenile Justice confidential background report stated that the Applicant disclosed the ‘attack’ was not pre-mediated and he ‘simply acted out of impulse’.[21] At the Tribunal hearing, the Applicant said that he did ‘not remember’ the incident and was not aware he was subject to a good behaviour bond.[22]

    [19] Exhibit TB-TB2, pages 60-61.

    [20] Ibid, pages 63-65.

    [21] Ibid, page 69.

    [22] Oral evidence of the Applicant on 15 June 2022, transcript of proceedings, pages 20, 47-48.

32. The Applicant’s offences heard in the Children’s Court on [redacted] September 2017 are outlined in a NSW Police Facts Sheet, which detailed an incident involving the Applicant (then aged 16 years old) and a police officer outside a police station in April 2017. The NSW Police Facts Sheet stated that the Applicant was seated on stairs outside police station consuming alcohol and waiting for his mother and, following an interaction between police officers and his mother, swore at and ‘head butted’ a police officer ‘to the left side of the face’.[23] Court orders show the Applicant pled guilty to these offences and was sentenced to good behaviour bonds.[24]

    [23] Exhibit TB-TB2, page 44.

    [24] Ibid, pages 47-51.

33. A confidential background report prepared by NSW Juvenile Justice in September 2017 stated the Applicant accepted that he had been drinking a can of alcoholic cider because he had been at a party and did not ‘think that his consumption [of alcohol] had altered his thinking at the time’.[25] This report recorded the Applicant ‘never intended to harm’ the police officer and ‘was able to identify that assaulting a police officer was wrong’, although he ‘did not appear to understand the severity of his actions’.[26] The Applicant told the Tribunal that he did not remember this incident or that he pled guilty to the offence.[27]

    [25] Ibid, page 55.

    [26] Ibid, page 56.

    [27] Oral evidence of the Applicant on 15 June 2022, transcript of proceedings, page 21.

34. Relevant to the Applicant’s offences in the Children’s Court:

    ·In relation to the Applicant’s appearance in the Children’s Court on [redacted] April 2015, he was under the age of 16 years and paragraph 14(1)(a) of the Children (Criminal Proceedings) Act 1987 (NSW) precludes recording a conviction in relation to a child who is under the age of 16 years.

    ·Regarding the Applicant’s appearance in the Children’s Court on [redacted] September 2017, although the Applicant was above the age of 16 years, the Children’s Court exercised its discretion not to record a conviction in accordance with paragraph 14(1)(b) of the Children (Criminal Proceedings) Act 1987 (NSW).

35. The Applicant’s conviction for offences heard by the NSW District Court on [redacted] November 2019 related to offences committed by the Applicant in October 2017 in the company of three other young males, including his (then) 16-year-old younger brother.

36. A Statement of Agreed Facts set out the following seven sequences of events:

    ·Sequence 1: Theft of a vehicle from a driveway at 11:55pm on 16 October 2017.

    ·Sequence 2: Armed robbery in company on a 39-year-old male victim walking along a street at around 2:25am on 17 October 2017. Three males ran at the victim, grabbed his laptop bag and yelled at him to ‘give us everything’. A male swung a golf club at the victim’s face, ‘striking him on the top left side of his brow’. One of the males pulled the victim’s phone from his pocket. The male offenders ran off and got in the car with the victim’s laptop bag (containing the victim’s laptop, housekeys and wallet) and phone.

    ·Sequences 3, 4 and 5: Armed robbery in company on two women aged 23 years and 24 years, and a male aged 26 years at around 3am on 17 October 2017. Four males approached the three victims. One male was holding a knife with a 10 cm blade, one male was holding a baseball bat and one male was holding an extendable baton. The male with the knife held it towards the 24-year-old female victim and said, ‘give me your bag if you do not want to get stabbed’; he took her bag and then said, ‘give me your phone, give us everything you’ve got’; she said, ‘no, please’ and the male then moved the knife closer and the victim gave the male her phone. The male with the baseball bat approached the 23-year-old female victim, raised the baseball bat above his head ‘in a menacing manner’ and grabbed her handbag and phone. The male with the baton approached the 26-year-old male victim and said, ‘give us your stuff and nothing needs to happen’ and held the baton towards the victim’s hip area; the victim let go of his bag, which the male took possession of. The male offenders then returned to the car and drove away with stolen property of the victims including their bags, passports, clothes and jewellery, makeup, credit cards, housekeys, phones, cigarettes and sunglasses.     

    ·Sequence 6: Armed robbery in company and cause GBH (grievous bodily harm) on a 28-year-old male victim at around 3am on 17 October 2017. The victim was walking on a footpath and noticed a male in front of him wearing a bandana covering his nose and mouth, a different male behind him and another male to his left. The victim ‘felt something hit him hard to the left side of his mouth’, which caused him to fall down. The victim ‘felt immediate pain’ and realised the ‘blow had caused him to lose some of his teeth’. The male who had been standing behind the victim ‘knelt down and pushed against’ the victim and held a knife to the victim’s throat, while the other two males took the victim’s wallet. The victim noticed the male who had been standing to his left side was holding a golf club. The male who had been standing in front of the victim took the victim’s backpack. The male offenders then got in a car with the victim’s stolen property that included his backpack, clothes, iPad pro, camera, sunglasses and passport. The victim sustained injuries, including ‘full thickness laceration of the lip’ and ‘loss of three teeth and several fractured teeth’, and surgery of ‘open reduction and internal fixation of his facial fractures, intermaxillary fractures and repair of facial lacerations’. The victim’s jaw was ‘wired shut’ for six weeks following this surgery and he was ‘missing his front four top teeth’.       

    ·Sequence 7: Armed robbery in company at about 3:25am on 17 October 2017. Three males, including the Applicant armed with a machete and wearing a face covering, were captured on CCTV entering a 7-Eleven store. The males demanded money and cigarettes from the staff member, who placed the till tray on the counter and about 30 packets of cigarettes with an estimated value of $1,000 into a backpack. The Applicant entered a rear storeroom and stole a backpack that was the staff member’s personal property and contained a laptop and study material. Four males then left the scene in a car.[28]

    [28] Exhibit TB-TB1, pages 2-7.

1. The Statement of Agreed Facts also described:

   ·a police car pursuit of the stolen car with the four male offenders after the armed robbery at the 7-Eleven store and the subsequent abandonment of the stolen car;

   ·taxi CCTV footage of three of the male offenders (including the Applicant);

   ·the arrest of the Applicant and his brother on 2 November 2017 and the police search of their residence; and

   ·recordings from listening devices lawfully installed in the police cells where the Applicant, his brother and another male was held.[29] 

   [29] Ibid, pages 8-13.

2. The sentencing remarks of the District Court Judge delivered on [redacted] November 2019 in relation to the Applicant, his younger brother and another ‘young offender’ provided a detailed summary of the agreed facts (consistent with paragraphs 36 and 37 above) and outlined the Applicant’s ‘subjective circumstances’ as follows:

   ·the Applicant did not give evidence during the sentencing hearing;

   ·the Applicant was aged 17 years and four months at the time of the offences and was aged 19 years and five months at the time of sentencing;

   ·the Applicant provided a ‘handwritten letter of apology where he expressed remorse’, outlined he was seeing a psychologist and had completed programs while in custody, and took ‘full responsibility for his actions’; and

   ·referred to information about the Applicant in a report by Ms ‘KM’ (forensic psychologist) dated 12 February 2019 and three reports from NSW Juvenile Justice dated from October 2018 to October 2019.[30]

   [30] Exhibit G-G10, pages 47-49.

3. In his consideration, the District Court Judge stated:

   In respect of the young person [the Applicant], I am satisfied that his intellectual disability is also a relevant consideration when considering his offending behaviour and his moral culpability is also reduced. I would also place less weight on the principle of general deterrence.

   … 

   When considering each of the young person’s role, I would accept that it is difficult to discern the precise role of each offender and would give little weight to what one offender has said and recorded in a report, in circumstances where none [of the offenders] have given evidence. I would not conclude that an offender played a greater or lesser role in the circumstances.

   …

   I am satisfied that, given the objective gravity of the offending behaviour, the only sentence which can be imposed is a sentence of full-time imprisonment. I am satisfied that special circumstances exist to extend the additional terms of the sentences, having regard to the offenders’ early pleas, youth, remorse and need for ongoing counselling within the community upon release.[31]

   [31] Ibid, pages 55-56.

4. The District Court Judge also noted in his sentencing remarks that he imposed similar sentences in respect of each young offender given their role and subjective circumstances. He sentenced the Applicant to an aggregate term of six years imprisonment with a non-parole period of three years imprisonment; this sentence commenced on 2 November 2017 and the non-parole period expired on 1 November 2020.[32]

   [32] Exhibits G-G9, pages 30-34 and G-G10, pages 57-58.

5. In a NSW Juvenile Justice confidential background report in October 2018, the Applicant reported his involvement in the offences as follows:

   ·Sequence 1: The Applicant was not involved in stealing the car used within the offences but was a passenger in the car after being picked up from his residence later that night.

   ·Sequence 2: The Applicant had participated in the robbery by yelling at the victim to ‘give them his property’ but did not have a weapon and did not touch the victim or his property at any stage throughout the offence.

   ·Sequences 3, 4 and 5: The Applicant had participated in the offences and ‘reported the listed facts regarding the [24-year-old female victim] as correct regarding his involvement’; however, he was holding a machete ‘which he had only intended to scare her with’.

   ·Sequence 6: The Applicant said he remained in the car for this offence.

   ·Sequence 7: The Applicant ‘agreed with all the information listed in the agreed facts for this matter’.[33]

   [33] Exhibit TB-TB1, page 33.

6. In his oral evidence to the Tribunal, the Applicant said that he was not involved in stealing the car with the other male offenders (Sequence 1). He said that, on the evening of the offending, his (then) 16-year-old brother came into his bedroom, woke him up and said he ‘had a car’ and to ‘come for a drive’.[34] The Applicant acknowledged that he became aware the car was stolen and the plan was to rob people about five minutes after he got into the car. He also said that ‘everything’ that happened that night ‘was a group planning decision’.[35] The Applicant accepted his roles in the other sequences of offences were as follows:

   ·Sequence 2: The Applicant was present but could not remember his role, although he did not hit the person.

   ·Sequences 3, 4 and 5: The Applicant ‘held a knife’ towards a female and demanded property from her but did not hit her.[36]

   ·Sequence 6: The Applicant’s role was ‘being in company’, but he did not hit the male or hold a knife towards him.[37]

   ·Sequence 7: The Applicant ran into the 7-Eleven store with a machete with two other males but did not hit anyone, and he took the bag from the storeroom.

   [34] Oral evidence of the Applicant on 15 June 2022, transcript of proceedings, pages 21-22.

   [35] Ibid, page 22.

   [36] Ibid.

   [37] Ibid, pages 22-23.

7. The Applicant told the Tribunal that he understood the victims of these offences would have been ‘scared’ and ‘in fear for [their] life’.[38] He said he ‘is sorry’, wishes he ‘could take it all back’ and knows what he did ‘wasn’t the right thing’.[39] He accepted that he finds it hard to talk about.

   [38] Oral evidence of the Applicant on 15 June 2022, transcript of proceedings, pages 22 and 24.

   [39] Ibid, page 23.

   The Applicant’s time in juvenile justice, adult prison and immigration detention

8. The Applicant has been incarcerated since his arrest on 2 November 2017. He was initially held in juvenile justice centres and then held in adult prisons until he was granted parole on 1 November 2020. Since his release from prison, the Applicant has been held in immigration detention.

9. NSW Juvenile Justice confidential background reports described the Applicant’s behaviour in juvenile justice centres. A report in October 2018 set out the Applicant’s behaviour in juvenile justice was ‘reported as positive, with staff informing that [he] follows staff direction and centre routines well’: he was ‘involved in nil incidents’ and had ‘only received One Minor Misbehaviour report for fighting with a peer’.[40] A report in October 2019 outlined the Applicant attended the education and training unit at the juvenile justice centre participating in general education, information technology and furnishing classes, and stated the Applicant ‘continued to receive weekly progress reports … which highlight his behaviour as being to a high standard and also his progress in class’.[41]

   [40] Exhibit TB-TB1, page 29.

   [41] Ibid, page 37.

10. Programs and courses undertaken by the Applicant while in juvenile justice are also set out in NSW Juvenile Justice confidential background reports. These included victim’s services counselling, alcohol and other drugs education, X-roads alcohol and other drugs groupwork program, modules for the Changing Habits and Reaching Targets (CHART) program, a puppy guide dog program, a certificate III in visual arts and a land care course.[42] The Applicant further stated that completed his higher school certificate and a personal trainer course during this period.[43]

    [42] Ibid, pages 29 and 37.

    [43] Exhibits A1 and TB-TB1, page 22.

11. Regarding the Applicant’s conduct in adult prisons, case note report entries from the NSW Department of Corrective Services record the Applicant completed the ‘Gurnang Life Challenge’ program in January–April 2020 and the ‘EQUIPS Aggression’ program in May 2020.[44] An entry dated 15 September 2020 noted that the Applicant was advised he was granted parole effective from 1 November 2020.[45]

    [44] Exhibit TB-TB4, pages 131, 140-141.

    [45] Ibid, page 149.

12. In relation to the Applicant’s conduct in immigration detention, an incident detail report from Yongah Hill Immigration Detention Centre outlined an incident on 8 March 2021 of an ‘assault-minor’ with the Applicant ‘threatening to hit staff’.[46] At the hearing, the Applicant explained this incident with a security guard occurred after his paperwork from the Department became mixed up with his younger brother’s paperwork and, consequently, he was not able to sign the relevant paperwork. The Applicant was then informed he was being ‘forcibly removed’ from Australia the following day and told to pack his stuff by the security guard; he said he ‘snapped’ and verbally ‘threatened’ the guard but did not hit him.[47] The Applicant was subsequently detained in high care accommodation and said he later apologised to the security guard.

    [46] Exhibit TB-TB5, page 155.

    [47] Oral evidence of the Applicant on 15 June 2022, transcript of proceedings, page 34.

    Consideration

13. Having regard to the relevant factors in subparagraph 8.1.1(1) of Direction No. 90, I make the following findings about the nature and seriousness of the Applicant’s conduct to date:

    ·The Applicant’s criminal history set out in paragraphs 30 to 43 has included violent crimes, which are ‘viewed very seriously by the Australian Government and the Australian community’.

    ·The seriousness of the Applicant’s violent offending in October 2017 is reflected by the Court imposing a sentence of six years imprisonment (aggregate) on [redacted] November 2019.

    ·The Applicant’s offending in October 2014 (dealt with in the Children’s Court on [redacted] April 2015) and April 2017 (dealt with in the Children’s Court on [redacted] September 2017) show the Applicant has committed crimes against government officials in the performance of their duties, which is viewed as ‘serious’. However, the Applicant was sentenced to good behaviour bonds and no conviction was recorded for these offences.

    ·There is limited evidence in relation to the frequency of the Applicant’s offending or cumulative effect of repeated offending, noting the Applicant has been held in prison and immigration detention from November 2017. Relevantly, the Applicant’s conduct while in juvenile justice centres and adult prisons has been reported as positive, he has participated in rehabilitation programs and was granted parole at the earliest date possible. The Applicant’s conduct in immigration detention is unblemished except for a single incident on 8 March 2021; however, I accept there were extenuating and stressful circumstances for the Applicant that, while not excusing his behaviour, provide some context to this incident.

    ·There is no evidence the Applicant has provided false or misleading information to the Department.

14. Based on the evidence, I am satisfied the nature and seriousness of the Applicant’s conduct weighs strongly against exercising the discretion to revoke the cancellation of his visa.

    The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

15. Subparagraph 8.1.2(2) of Direction No. 90 sets out that, in assessing the risk that may be posed by the Applicant to the Australian community, I must have regard to, cumulatively:

    ·the nature of the harm to individuals or the Australian community if he engages in further criminal or serious conduct; and

    ·the likelihood of him engaging in further criminal or serious conduct, taking into account:

    oinformation and evidence on the risk of him re-offending, and

    oevidence of rehabilitation ‘at this time’, giving weight to time spent in the community since his most recent offence.

16. As set out in paragraphs 30 to 43, the Applicant’s criminal record shows he has engaged in violent crimes. Based on this past offending, I am satisfied that if the Applicant engages in further criminal or serious conduct, the nature of any harm to individuals or the Australian community could be extremely serious.

17. I now consider the likelihood of the Applicant engaging in further criminal or serious conduct.

    Information and evidence on the risk of the Applicant re-offending

18. There are two psychological reports before the Tribunal regarding the Applicant and his offending; the first was completed by Ms ‘KM’ (forensic psychologist) on 12 February 2019 and the second report was written by Ms ‘JH’ (psychologist) on 11 April 2022.

19. The psychological assessment report by Ms ‘KM’, which was considered by the District Court Judge in relation to the Applicant’s offending in October 2017, set out information about the Applicant’s childhood development and education consistent with the evidence outlined in paragraphs 25 to 29 of these reasons, and provided the following summary of the Applicant’s psychological assessment:

    [The Applicant] described a history of difficulty managing anger and behavioural impulses, which has seemingly prompted a past diagnosis of ADHD. [The Applicant] now opines that his symptoms of this disorder have mostly abated. He provided limited information regarding his emotional experiences. It is my opinion that [the Applicant] may have minimized the extent to his problems, in a bid to appear strong or to avoid discussing his shortcomings and/ or his psychological insight could be lacking, consistent with his low cognitive functioning.[48]

    [48] Exhibit TB-TB1, pages 19-20.

20. Ms ‘KM’ undertook the following psychometric testing of the Applicant:

    ·She assessed the Applicant using the Stanford Binet – Fifth Edition (SB5) Abbreviated Battery, which measures a person’s cognitive abilities and provides an estimate of their intellectual functioning. She reported the Applicant’s ‘achievement on the SB5 places him in the category of mildly delayed/impaired intelligence, performing better than 1% of same aged peers’.[49]

    ·She also verbally administered the Adolescent Psychopathology Scale – Short Form (APS-SF), used to evaluate the presence and severity of psychological disorders in adolescents aged between 12-19 years. She stated the Applicant’s responses ‘resulted in minor elevations in the defensiveness scale’ suggesting he ‘may have minimized the extent to his problems’, and ‘a history of breaking rules and engaging in aggressive behaviour’.[50]

    [49] Ibid, page 21.

    [50] Ibid.

21. In her case formation and recommendations, Ms ‘KM’ noted the following in relation to the Applicant:

    ·he has had ‘persistent difficulties regulating his behaviour in a number of settings’;

    ·he is susceptible to ‘being easily led’, which seems to ‘stem both from his low cognitive abilities, and his desire to fit in/be accepted by his peers’;

    ·he is embarrassed in relation to his ‘poor literacy skills’, which has prevented him ‘from accessing support services offered’;

    ·his ‘intellectual delay, antisocial peer relationships and behavioural dysregulation have influenced his criminal conduct’; and

    ·he ‘presents with no real insight into the triggers for his offences’ but expresses ‘remorse for his actions’ and an ‘intention to desist from crime’.[51]

    [51] Ibid, page 22.

22. Ms ‘KM’ recommended the Applicant be provided with support from a disability support service to ‘develop literacy skills, examine his peer relationships’ and ‘develop methods to regulate his behaviour’ in order to ‘provide [him] with work readiness skills’.[52]

    [52] Ibid.

23. The psychological report by Ms ‘JH’ was based on interviews/assessments she undertook with the Applicant by videoconference on 31 March 2022 and 1 April 2022. Ms ‘JH’ reported on the Applicant’s presentation at the interviews, his family and developmental history, physical and mental health, drug and alcohol history, and criminal history.

24. Ms ‘JH’ completed a risk assessment of the Applicant using the Violent Risk Scale (VRS), a ‘conceptual actuarial tool based on risk, need and responsivity’ that was ‘specifically developed to assess the risk of violence, to measure changes in violence after treatment and to make treatment decisions’.[53] Ms ‘JH’ stated the Applicant’s scores on the VRS ‘identify him as having minimal risk (there is not a no risk category) to offend relative to the sample population’.[54] In particular, she opined about the Applicant in relation to the following ‘dynamic risk factors identified by the VRS’:

    [53] Exhibit A2, page 8.

    [54] Ibid.

    ·Criminal personality: The Applicant does not ‘exemplify the prototype for criminal personality as defined in the VRS’; that is, he ‘does not demonstrate or display features of grandiosity, he is not manipulative, nor did he demonstrate an unrealistic sense of self-worth during the assessment’.

    ·Criminal attitudes: The Applicant is ‘a young man with a short history of criminal behaviour who formed friendships with the “wrong” people’. The Applicant ‘commenced counselling and treatment to help him both re-integrate and remain positively connected to his family and the community’.

    ·Work ethic: The Applicant experienced learning difficulties at school but ‘appears committed to gaining reliable employment and believes he can gain and maintain stable employment if released from detention and living with his family’.

    ·Criminal peers: The Applicant ‘does not have a long history of antisocial peer associations’ but he ‘became involved in anti-social and criminal behaviour’, which he ‘sincerely regrets and acknowledged he is ashamed of’.

    ·Interpersonal aggression: The Applicant ‘stated that he is “disgusted” by his behaviour, accepts it was “wrong” and that victims would have felt intimidated by his behaviour’.

    ·Emotional regulation: The Applicant’s ‘emotional regulation during the assessment was appropriate’ and he ‘demonstrated no issues of concern regarding disinhibited anger, frustration, or violence.’

    ·Insight into violence: The Applicant demonstrated ‘a level of insight into his behaviour in general and specifically the effects of violence on others’.

    ·Mental disorder: The Applicant is ‘not currently prescribed medication used in the treatment of major depressive disorder and generalised anxiety disorder’. An assessment using the Depression, Anxiety and Stress Scale (DASS-42) suggests the Applicant ‘is currently experiencing elevated levels of depression, anxiety and stress which appear strongly related to his current circumstances’.

    ·Mental illness: Results from the DASS-42 ‘indicated he is experiencing moderate to high levels of anxiety, depression, and stress consistent with his current circumstances’.

    ·Substance abuse: The Applicant acknowledged ‘he began smoking cannabis around the same time he commenced using alcohol and described a regular pattern of smoking once a week’ as an adolescent. He has ‘never developed an addiction, nor has he required treatment’.

    ·Stability of relationships: The Applicant ‘maintains regular contact with his parents and siblings’ and they ‘speak by phone multiple times throughout the week’. The Applicant has ‘stable, supportive, and positive relationships with his immediate family’ and is a ‘sociable man who has formed positive friendships with several other persons’ at the detention centre, which ‘elevates his mood and supports positive social interactions’.

    ·Community Support: The Applicant ‘will require appropriate community support on release from custody particularly in relation to practical needs such as housing and employment’ and to ‘help him successfully integrate back into the community and find stable and appropriate employment’.

    ·Impulsivity: The Applicant has ‘exhibited some impulsivity’ in his ‘past behaviour in the community’ but has the ‘support of his family and is a pro-social man who has the potential to maintain stable relationships and employment in the community’.[55]

    [55] Ibid, pages 9-10.

1. Ms ‘JH’ concluded that it was her ‘view based on both interviews and assessment with the VRS that [the Applicant] does not pose an unacceptable level of risk of violence to others’.[56]

   [56] Ibid, page 10.

2. In response to the question ‘what risk, if any, does [the Applicant] pose of reoffending, taking into account all of his previous findings of guilt’, Ms ‘JH’ stated:

   It is my view based on discussion with [the Applicant] that his upbringing, background, and culture did not influence his offending behaviour. He stated that he accepts full responsibility for his behaviour which he described as abhorrent, and he acknowledged he is ashamed and deeply remorseful of the decisions he made at the time of the offences. [The Applicant] believes and indicated that he would never behave in a violent manner again. He stated that whilst in custody he has been exposed to physical violence between inmates and as a result has experienced feelings of fear.

   [The Applicant] was able to discuss the offence and said he accepted full responsibility for his behaviour. He also acknowledged feeling ashamed and remorseful for the harm his behaviour caused his family and friends. His risk of reoffending was assessed using the VRS which utilises both static and dynamic risk measures. Static risk factors are not amenable to change and remain stable over time while dynamic risk factors form the basis for treatment. Group and individual treatment are available in the community and [the Applicant] indicated his willingness to participate in treatment. He has no prior convictions for violent offences, and he does not hold attitudes and values supportive of physical violence.

   It is my view that he exhibits a degree of insight into his decisions and behaviour that suggest he has the capacity and potential to address the factors associated with his offending behaviour and he has particularly good prospects for rehabilitation.

   [The Applicant] has engaged in several educational courses whilst in [immigration detention] saying that these courses have involved both juvenile reactivity and issues of accountability for criminal behaviour as well as issues in relation to adult offending and being held in custody. He stated that the information provided has clarified the harm that surrounds violent behaviour, and he affirmed his belief that he will never act in a violent way again.[57]

   [57] Ibid, pages 10-11.

3. Ms ‘JH’ provided oral evidence to the Tribunal that she believes the Applicant has good prospects of rehabilitation because he has support from his parents and siblings ‘who care and also wanted to be involved with him’, and he demonstrated pro‑social values such as ‘trying to help people … listening to them’ and showing ‘some initiative to connect with others’ while in detention.[58] She also observed the Applicant understood the impact of his behaviour, noting that when they talked ‘about what happened, what he was charged with, he clearly understood that [offending behaviour] to be wrong, and he understood that the sentence that he got was commensurate with how wrong it was as well’.[59]

   [58] Oral evidence of Ms ‘JH’ on 16 June 2022, transcript of proceedings, page 131.

   [59] Ibid.

4. At the Tribunal hearing, the Applicant provided oral evidence about the factors that led to his offending behaviour and his rehabilitation at this time.

5. The Applicant said that he grew up in an area with ‘a lot of fights and stuff like that’ and was ‘pulled into … or followed into’ that lifestyle.[60] He said that, at the time of his offending, his ‘family was struggling’ as ‘no one [was] working’ and he ‘was always out’ because he ‘didn’t like to be at home at all’.[61] He said he commenced drinking alcohol socially on weekends from about the age of 14 years and also used cannabis but decided to stop because he ‘didn’t like the feeling’.[62] The Applicant said he was not affected by either alcohol or cannabis when he participated in the offences in the company of three other males in October 2017.

   [60] Oral evidence of the Applicant on 15 June 2022, transcript of proceedings, page 19.

   [61] Ibid

   [62] Ibid, page 20.

6. The Applicant told the Tribunal that he saw a psychologist once or twice a week while he was in juvenile justice centres. He said this helped him ‘in a lot of different ways’ as there were ‘a lot of fights and stuff’ and the psychologist ‘kind of taught me how to approach a situation like that, to … not get involved’; and ‘they gave me a place to express myself and to talk about certain things that I wouldn’t talk about’ with others.[63] He noted that it was ‘hard’ for him to ‘talk about life or family’ as ‘when it comes to myself, I don’t have words – I don’t know how to express myself and how I feel’.[64]

   [63] Ibid page 28.

   [64] Ibid, page 29.

7. The Applicant said he had not had the opportunity to see a psychologist while in adult jail or immigration detention and believed he fell into ‘old habits, bottling everything up and keeping everything to myself’.[65] He told the Tribunal that if released into the Australian community, he would like to see a psychologist weekly and thought the parole board would be able to assist him with this process. He also said that he would rely on his family to help him to destress.

   [65] Ibid.

8. The Applicant confirmed that he has completed courses in horticulture, personal training and visual arts, which he said ‘was probably my favourite, because I like to draw’.[66] He highlighted his participation in the Gurnang Life Challenge program during which he learnt ‘communication and understanding … other people’s thoughts’.[67] He spoke about attempting other courses but said he struggled with courses ‘done on paper’ due to his illiteracy.[68] He said he had undertaken programs to help with his reading and writing while in jail, and was ‘picking it up pretty quickly’ which made him ‘feel better in a big way’.[69] However, he has not had any assistance with reading or writing since this time and is concerned he has lost the skills. He said he ‘definitely’ wants to improve his reading and writing.[70]

   [66] Ibid, page 32.

   [67] Ibid, page 27.

   [68] Ibid, page 31.

   [69] Ibid, page 30.

   [70] Ibid, page 67.

9. I note this oral evidence from the Applicant is consistent with case note report entries from the NSW Department of Corrective Services that show:

   ·The Applicant completed the EQUIPS Aggression program in May 2020, which helped him identify ‘things that cause him to relapse “same boys, going to the wrong places and overreacting” and what strategies will assist him “talk to the family, let things go and keep myself busy”’.[71]

   ·The Applicant was ‘working very hard to improve his literacy … the struggle he has with literacy indicates a significant learning difficulty. He is intelligent and able to express himself well in a ‘safe’ situation, but gets anxious in a larger group’.[72]

   ·The Applicant was ‘steadily improving his reading ability’ and ability to write; he exhibits ‘many attributes of someone with a reading disability such as dyslexia’ and should ‘seek formal assessment upon release, and continue with adult literacy classes if possible’.[73]

   [71] Exhibit TB-TB4, page 141.

   [72] Ibid, page 138.

   [73] Ibid, page 142.

10. Finally, in relation to the likelihood of reoffending, the Applicant told the Tribunal about the daily routine he has established while in immigration detention and explained:

    Like most times, I’ll actually get my routine in and it’s important to me because it keeps me in a stable mindset and it makes me feel good at the end of the day. It makes me feel better.[74]

    [74] Oral evidence of the Applicant on 15 June 2022, transcript of proceedings, page 36.

11. In submissions, the Applicant’s counsel observed that the Applicant is subject to all the conditions of his parole until 1 November 2023. This includes ‘needing to report as directed’ and ‘undertake all required intervention’.[75] I also note that, in oral evidence, Ms ‘JH’ said that services and support would be available to the Applicant while he is on parole and this would include access to a psychologist and education classes.[76] She further opined that the Applicant being on parole until November 2023 would reduce his risk of reoffending, noting that:

    Being on parole allows us to work with people and to help them navigate [to] get back into the community without oversight. So, yes, you would expect that if he was on parole he would be attending parole services and he would be getting treatment services whilst he was on parole as well.[77]

    [75] Exhibit TB-TB4, page 151.

    [76] Oral evidence of Ms ‘JH’ on 16 June 2022, transcript of proceedings, page 133.

    [77] Ibid.

12. Weighing the evidence, I place significant weight on the opinion of and risk assessment undertaken by Ms ‘JH’. I note the psychological assessment of Ms ‘KM’, while thorough and detailed, occurred more than three years ago and so does not necessarily reflect the Applicant’s rehabilitation ‘at this time’. In contrast, the report of Ms ‘JH’ involved interviews and a comprehensive assessment of the Applicant’s risk of violence only three months ago, concluding that he did not ‘pose an unacceptable level of risk to others’.

13. I have also considered the evidence of the Applicant’s positive engagement in counselling, rehabilitation programs and education opportunities while in juvenile justice and adult jail. In his oral evidence to the Tribunal, the Applicant demonstrated insight into his behaviour explaining that he has changed since he entered juvenile justice aged 17 years old in 2017 and observing:     

    there’s been a few situations where I have walked away from things. I haven’t incited any drama as I used to. I was constantly in a few arguments and fights in juvie and from juvie to jail changed me in a big way. Being around a lot of older boys matured me into the person I am today. And I feel like I’m 22. I feel … a bit older than that and I think I’m just a calmer person and can make better decisions and give better advice to people.[78]

    [78] Oral evidence of the Applicant on 15 June 2022, transcript of proceedings, page 67.

14. This is further supported by the Applicant’s mother, Ms ‘RM’, who wrote in a statement dated 11 April 2022:

    I think the time in custody has done [the Applicant] a world of good. Over time, I have asked him, what are you going to do with yourself if you get out. He is strong minded now, that he wants to get a job, to get his life back on track. He told me about doing a course in personal training in gaol, and that he liked that. But he is willing to do any work – he really wants to get a job to help me and his dad out.

    It was maybe since his second year of being inside, that he started talking reality. He admitted that what he had done was wrong, and he needed to get his life back on track.

    He is so much more mature than when he went in. [The Applicant] is placid and down to earth.

    He was only a kid when he went in. Now he wants to help us out, help out with the grandkids. He wants to make up for lost time.[79]

    [79] Exhibit A3.

15. I am satisfied that the evidence of Ms ‘JH’ supports a finding that the likelihood of the Applicant engaging in further criminal or serious conduct is ‘minimal’, which is also consistent with documentary evidence from the NSW Department of Corrective Services prior to the Applicant’s release on parole from adult jail in November 2020.

16. Considering both the nature and seriousness of the Applicant’s conduct to date and the risk to the Australian community should the Applicant commit further offences of engage in other serious conduct, I am satisfied on balance that the primary consideration of protection of the Australian community from criminal or other serious conduct weighs against exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa.

    PRIMARY CONSIDERATION 2 – FAMILY VIOLENCE COMMITTED BY THE APPLICANT

17. Paragraph 4(1) of Direction No. 90 defines family violence as ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful’.

18. There is no evidence before the Tribunal that the Applicant has engaged in any conduct that constitutes family violence as defined in Direction No. 90 and, consequently, I am satisfied that this primary consideration has neutral weight in relation to my decision.

    PRIMARY CONSIDERATION 3: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION

19. Subparagraph 8.3(4) of Direction No. 90 lists the factors I must consider in considering whether cancellation of the Applicant’s visa is in the best interests of a minor child (under 18 years old at the time of the refusal) affected by the decision. The relevant factors include:

    ·the nature and duration of the relationship between the child and the Applicant (placing less weight where the relationship is non-parental, there is no existing relationship or long periods of absence, or limited ‘meaningful contact’);

    ·the extent to which the Applicant is likely to play a positive parental role in the future taking into account the length of time until the child turns 18 years old;

    ·the impact of the Applicant’s prior and future conduct, and whether that will have a negative impact on the child;

    ·the likely effect any separation would have on the child; and

    ·whether there are other persons who already fulfil a parental role for the child.

20. The Applicant’s immediate family comprises his biological parents and his five siblings. His father is an Australian citizen of Samoan descent and his mother identifies as Maori and was born in New Zealand. The Applicant has two older sisters and three younger brothers.

21. The Applicant’s oldest sister, Ms ‘MH’, is aged 28 years and has three minor children who are currently aged 10 years old (‘A’), nine years old (‘B’) and seven years old (‘C’). The partner of Ms ‘MH’ is Mr ‘TM’, who is the biological father of ‘B’ and ‘C’. Ms ‘MH’ provided written statements and gave oral evidence at the Tribunal hearing. She explained that the Applicant ‘has had a really close relationship with [her] kids for so long’, as the ‘kids were used to living with him and seeing everyone under the one roof’.[80] She noted that:

    [The Applicant] was especially close to [‘A’]. He was the only child for a bit, and his dad wasn’t really in the picture so [the Applicant] would help me by watching [‘A’] when he was out. Even though my parents were in the house too it was really [the Applicant and his brother] who would take care of [‘A’].

    Because [‘A’] was older, [the Applicant] started teaching him right from wrong. He’d discipline him by telling him off if he wasn’t listening to me. [The Applicant] would tell him, ‘don’t do that, listen to your mum.’ After [the Applicant] went into custody, [‘A’] told me that he sees [the Applicant] as a father figure more than his own dad.

    [The Applicant] is close with all three of my kids. [The Applicant] has ADHD, and [‘C’] does too. This meant that they got along really well together. [The Applicant] treated [‘C’] like his little brother. They loved hanging out together.[81]

    [80] Exhibit A5.

    [81] Exhibit A5.

22. Ms ‘MH’ provided oral evidence that the Applicant has spoken to her children ‘everyday’ by phone or facetime since he has been in immigration detention.[82] She confirmed that the Applicant is a ‘father figure’ to ‘A’, has a ‘soft spot’ for ‘B’ because ‘she is a girl’ and is ‘close’ to ‘C’, despite his detainment in prison and detention.[83] In oral evidence, both Ms ‘MH’ and Mr ‘TM’ confirmed to the Tribunal that, if released into the Australian community, the Applicant would live with them and the three children, ‘A’, ‘B’ and ‘C’.

    [82] Oral evidence of Ms ‘MH’ on 15 June 2022, transcript of proceedings, page 73.

    [83] Ibid, page 74.

23. The Applicant’s other older sister, Ms ‘SP’, is 23 years old. She has two children currently aged three years old, ‘D’, and one year old, ‘E’, and is now separated from the childrens’ biological father. In a statement dated 7 April 2022, Ms ‘SP’ wrote that she and the Applicant ‘speak every day. We facetime so we can see each other, and so he can see the kids’.[84] She noted that the Applicant met ‘D’ as a newborn when he was in juvenile justice and has met the kids lots of times via facetime, observing that ‘the kids know he is part of our family’.[85]  Both the Applicant and Ms ‘SP’ gave oral evidence that ‘D’ has worked out how to contact the Applicant via facetime from her iPad and calls him regularly to talk or show him the program she is watching on TV. The Applicant said he always answers and observed:

    It makes me happy, talking to her … she just gives me a funny feeling when I’m talking to her. That’s what I love, you know?[86]

    [84] Exhibit A6.

    [85] Ibid.

    [86] Oral evidence of the Applicant on 15 June 2022, transcript of proceedings, page 38.

24. Ms ‘SP’ stated that she really wants the Applicant ‘to get to know [her] kids more’ and knows ‘he will be a great form of support for [her] in raising them’.[87] She told the Tribunal that she hopes the Applicant can be released from immigration detention and have a relationship with her children, observing that:

    right now their virtual relationship is really strong and I’m hoping that he gets to come home so that … my son has someone to look up to … I’m the only parent in the house for them and I’d like for them to have a male role model and I’d like that person to be my brother because … he just steps up in all the ways that a man should for their son or daughter … even though it’s his niece and nephew … Yeah, I’d want that for them.[88]

    [87] Exhibit A6.

    [88] Oral evidence of Ms ‘SP’ on 16 June 2022, transcript of proceedings, page 117.

25. The Applicant’s two youngest brothers are also minor children: his brother, ‘F’, is currently aged 17 years old and his brother, ‘G’, is currently aged 16 years old.

26. ‘G’ wrote an undated statement that was filed with the Tribunal on 3 May 2021. ‘G’ stated:

    I miss my older brother being out [of prison] because when he was out he use [sic] to give me all that advice but when he got locked up it was just mum and dad, but that isn’t the same.

    I felt sad for a long time and the house was really quiet when [the Applicant and his brother] were taken. I hope to have my brother home so we can share stories and bond after four and a half years of missing out on each other’s company and not having him right at my side to guide me into young manhood.

    …

    I don’t know how I’m going to deal emotionally with the fact of him not being able to come home. I’m still young. I struggle enough as it is with my emotions just waiting to find out the outcome.

    Still to this day [the Applicant] asks me about my schooling and footy and it’s good to know my brother still cares for me. It makes me feel loved.

    So please, please, please don’t take my brother away from me and my family because it will make us sad and cry. I don’t want a broken family.[89]

    [89] Exhibit A10.

27. The Applicant’s mother, Ms ‘RH’, gave oral evidence that the Applicant regularly speaks to ‘F’ and ‘G’ on the phone about ‘staying in school’, doing the ‘best they can at school’ and hanging out with ‘the footy boys’ because ‘they’re positive’.[90] His father, Mr ‘SP’, wrote in his statement that his youngest two sons ‘respect [the Applicant] more than anyone, including me’.[91]

    [90] Oral evidence of Ms ‘RH’ on 16 June 2022, transcript of proceedings, page 102.

    [91] Exhibit A4.

28. Based on the evidence, I am satisfied there are seven minor children who are affected by the decision to cancel the Applicant’s visa: his two younger brothers, his three nephews and his two nieces. I am also satisfied that the Applicant – despite being detained in juvenile justice centres, adult jails and immigration detention for more than four and a half years – has been able to both maintain a close and meaningful relationship with the older children and establish a close and caring relationship with the younger children. However, Direction No. 90 requires that I place less weight on these relationships as the Applicant is not the parent of any of the minor children and there are other people who fulfil a parental role for each of the minor children.

1. Nonetheless, I am satisfied the evidence shows the Applicant is likely to continue to play a positive role as a ‘father figure’ to his nephews, ‘A’ and ‘E’, and his niece, ‘D’; whose biological fathers have a limited role in their lives and who are still young. I also find the evidence shows the Applicant plays a positive role as an older male family figure in the lives of his younger brothers, ‘F’ and ‘G’, his niece, ‘B’ and nephew, ‘C’. I am satisfied the further separation of the Applicant would have a detrimental and profound impact on each of these minor children.

2. Considering all the evidence in relation to the factors set out in subparagraph 8.3(4) of Direction No. 90, I am satisfied the primary consideration of best interests of minor children in Australia affected by the decision weighs for exercising the discretion to revoke the cancellation of the Applicant’s visa.

   PRIMARY CONSIDERATION 4: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

3. Subparagraph 8.4(1) of Direction No. 90 provides:

   The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia. 

4. In subparagraph 8.4(2) of Direction No. 90, the Minister states that non-revocation of the mandatory cancellation of a visa may be appropriate because character concerns or offences are such that the Australian community would expect the person should not continue to hold a visa; and the Australian community expects the Australian government can and should cancel the visas of non-citizens if they raise serious character concerns through conduct including acts of family violence and/or serious crimes of a violent nature. Further, expectations of the Australian community ‘apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community’: subparagraph 8.4(3) of Direction No. 90.

5. Subparagraph 8.4(4) of Direction No. 90 states:

   This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.

6. Considering the requirement of paragraph 8.4 and the principles set out in paragraph 5.2 of Direction No. 90, I am satisfied the Australian community expects a non-citizen will obey Australian laws, not cause harm to individuals or the Australian community, and the Australian government should cancel the visa of a non-citizen if they commit serious crimes.

7. I have set out the nature and seriousness of the Applicant’s criminal history and the risk to the Australian community if he were to commit further offences in paragraphs 22 to 76 above. I am satisfied the Applicant’s offences committed in the company of three other young males in October 2017 were ‘serious crimes’ of a violent nature.

8. Based on the evidence and having regard to the principles and requirements in Direction No. 90, I find the Australian community would have a very low tolerance of the Applicant’s offending and would expect the Government to cancel his visa.

9. In written submissions, the Applicant’s counsel referred to the decision of FYBR v Minister for Home Affairs[92] and contended:

   [92] [2019] FCAFC 185.

   The Applicant concedes that, in accordance with FYBR v Minister for Home Affairs, there is a deemed expectation of the Australian community that non-citizens will obey the law and a failure to obey the law will be held against them (first expectation).

   However, FYBR makes it clear that the inquiry does not end there. It is incorrect to limit consideration of the expectations of the Australian community to the Applicant’s offending history. There is a second deemed expectation (second expectation) that the Tribunal will carefully consider the facts and circumstances of the particular case to determine whether it is appropriate to cancel a visa in accordance with the first expectation.

   The second expectation is clearly stated by Stewart J in FYBR, the ‘community … expects that it will be necessary in every case to assess the circumstances particular to the visa applicant in question in order to reach an evaluative assessment of “appropriateness”’, and there is a community expectation that ‘there must be an assessment as to “appropriateness”’ of the visa cancellation.

   Charlesworth J – who specifically used the term ‘second expectation’ – noted that the second expectation is concerned with ‘the consequences that should befall a non-citizen who has fallen foul of the first expectation’.

   That the expectations of the Australian community may weigh against the Applicant does not end the analysis. The Tribunal is required to consider the extent or degree of weight to be given to the expectations of the community.18 In the present case, the Applicant submits that the weight to be given to the deemed expectations of the Australian community should be significantly moderated on account of the ‘second expectation’ of the Australian community, expressed through Direction 90 as considered in light of the statements in FYBR referred to above, that each case will be considered in light of its individual circumstances.

   Here, the individual circumstances falling to be considered when assessing the weight to be given to the expectations of the Australian community include:

   -    The fact that the Applicant pleaded guilty to the offending, thus taking responsibility for his falling foul of the first expectation and also affording a considerable utilitarian benefit to the justice system, the victims and witnesses, and the broader community;

   -    The Applicant’s connection to Australia, having resided here since he was a child and for the entirety of his adult life;

   -    The Applicant’s strong family ties to Australia, where his parents and most of his siblings and extended family permanently reside;

   -    The impact to the Applicant’s minor relatives should he be removed from Australia;

   -    That the Applicant is a person who suffers from an intellectual disability;

   -    The unique stage of the Applicant’s life lending itself to rehabilitation and betterment, including remorse for and insight into his offending, and the possibility of ongoing treatment, rehabilitation and job opportunities should he be allowed to return to the community;

   -    The low risk that the Applicant poses to the Australian community.

   The Australian community expects that these positive matters in an applicant’s favour will be considered when determining the ultimate weight to be given to paragraph 8.4 of Direction 90.[93]

   [93] Applicant’s Statement of Facts, Issues and Contentions, 17 May 2022: paragraphs 54-60, citations removed.

10. I have considered the evidence, these submissions made by the Applicant’s counsel and the provisions outlined in Direction No. 90. Overall, having regard to the provisions in paragraph 8.4 of Direction No. 90, I am satisfied the primary consideration of expectations of the Australian community weighs against exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa.

    OTHER CONSIDERATIONS IN DIRECTION NO. 90

11. Section 9 of Direction No. 90 lists the other considerations that I ‘must also take into account’ in deciding whether to revoke the mandatory cancellation of a visa. The other considerations that are relevant in this matter are:

    ·the extent of impediments if the Applicant is removed from Australia; and

    ·links to the Australian community, namely the strength, nature and duration of the Applicant’s ties to Australia.

12. I note there is no evidence before the Tribunal that shows the considerations of international non-refoulement obligations, impact on victims or impact on Australian business interests are relevant to these proceedings.

    Other Consideration: Extent of impediments if the Applicant is removed from Australia

13. The extent of impediments if the Applicant is removed from Australia relates to his capacity to reside in, establish himself and maintain ‘basic living standards’ in his ‘home country’ of New Zealand. Pursuant to subparagraph 9.2(1) of Direction No. 90, I must consider his ‘age and health’, whether there are any ‘substantial language or cultural barriers’, and any ‘social, medical and/or economic support’ available to him in New Zealand.

14. The Applicant departed New Zealand when he was seven years old and has not since returned. In oral evidence, the Applicant said he has ‘no memories of New Zealand’, does not know any family members living in New Zealand (except for his younger brother who was removed to New Zealand earlier this year) and does not know where he would stay or work if he was removed to New Zealand.[94]

    [94] Oral evidence of the Applicant on 15 June 2022, transcript of proceedings, page 16.

15. The Applicant is currently 22 years old. While there is no evidence before the Tribunal that the Applicant has any physical medical concerns, the report by Ms ‘JH’ dated 11 April 2022 outlined consequences for the Applicant’s ADHD and depression in relation to establishing himself in New Zealand.

16. Ms ‘JH’ observed that, although the Applicant’s symptoms of ADHD ‘have waned’, he still ‘requires medical and psychological support to help manage his current symptoms’.[95] Ms ‘JH’ further stated the Applicant’s score using the DASS-42 ‘indicates he is experiencing elevated levels of depression, anxiety and stress which are strongly related to his current circumstances’, but he has not been prescribed medication and denied suicidal ideation.[96] She opined that:

    If [the Applicant] was to be returned to New Zealand, he would have very limited family and social support and would require ongoing support from mental health services and agencies which could support him access accommodation and find employment. The uncertainty [the Applicant] could experience may negatively impact his mental health and increase his level of depression and anxiety.[97]

    [95] Exhibit A2, pages 12-13.

    [96] Ibid, page 13.

    [97] Ibid.

17. I have also had regard to the oral and written evidence of the Applicant’s mother and older sisters regarding the Applicant’s capacity to function on his own in New Zealand in view of his intellectual disability and illiteracy.

18. In a statement dated 11 April 2022, the Applicant’s mother, Ms ‘RH’, wrote that the Applicant ‘is illiterate, and is very ashamed of that. I have got to read his documents for him because he doesn’t understand them’.[98] His older sister, Ms ‘SP’ also wrote on 7 April 2022 that the Applicant ‘would find it hard going back to New Zealand’ and observed:

    With [the Applicant’s] intellectual disability I don’t think he will know what to do when he gets there. While he has developed as he has grown older and is more self-sufficient, he still gets a great deal of help from us. For example, if he receives a form in an email, he will call me and ask me to help with every part of it, including reading everything to him, and filling the form out. He needs help with a lot of everyday things that he will struggle with in New Zealand. He calls me, my sister and my mum all the time for help.[99]

    [98] Exhibit A3.

    [99] Exhibit A6.

19. In her oral evidence to the Tribunal, Ms ‘SP’ said:

    Sorry, Bro, but I’ve got to say it – I honestly don’t reckon – like with all my heart I do not reckon that he’ll be able to get a job or anything on his own, like in New Zealand. I don’t even think that like – getting off the plane even worries me if he was to go back there. Getting off the plane and like his next step from there worries me …[100]

    [100] Oral evidence of Ms ‘SP’ on 16 June 2022, transcript of proceedings, page 121.

20. Ms ‘SP’ explained that she receives the Applicant’s emails on her phone so he can call her and ask her to read it to him. She said she then reads the email to him ‘in a way where he will understand what the email is about so that he knows what he has to do with that email’.[101]

    [101] Ibid, page 122.

21. While both Ms ‘RH’ and Ms ‘SP’, as the Applicant’s mother and sister, may be perceived to be subjective witnesses, I note their evidence is consistent with and supported by three independent psychological assessments (in 2010, 2014 and 2019) that diagnosed the Applicant with a mild/moderate intellectual disability and case notes from the NSW Department of Corrective Services that described the Applicant’s illiteracy and assistance with paperwork. I accept that the Applicant (possibly due to feeling ashamed about his illiteracy) is extremely reliant on his mother and two older sisters to provide him with support in relation to reading documents/emails and explaining to him what he needs to do. It is unclear whether the Applicant would receive this sort of support if he were removed to New Zealand and, indeed, how he would cope in a situation where he would need to read and complete forms on his own.

22. I accept that – on one reading of the evidence – the Applicant’s current age and physical health would not impede his removal from Australia, he would experience no substantial language or cultural barriers to living in New Zealand, and he would be able to access social, medical and economic support as a citizen of New Zealand. However, this conclusion is not satisfactory. In particular, it misses the critical reliance of the Applicant on his mother and sisters due to his diagnoses of ADHD and mild/moderate intellectual disability, and his illiteracy.

23. I find that the Applicant would experience feelings of depression if he is removed from Australia and his family members. I am also satisfied the Applicant – in view of his ADHD, intellectual disability and illiteracy – would have significant difficulty accessing social, medical and/or economic support in New Zealand without the assistance and support of his mother and older sisters.

24. On balance, I am satisfied that this consideration of the extent of impediments if the Applicant is removed from Australia weighs strongly in favour of exercising the discretion to revoke the mandatory cancellation of his visa.

    Other Consideration: Strength, nature and duration of ties to Australia

25. In considering the strength, nature and duration of the Applicant’s ties to Australia, subparagraphs 9.4.1(1) and (2) of Direction No. 90 stipulate that I must consider any impact of the decision on his ‘immediate family members’ in Australia and I must have regard to:

    ·how long the Applicant has resided in Australia, including whether he arrived as a young child, noting that:

    oless weight should be given where he began offending soon after arriving in Australia; and

    omore weight should be given to time he has spent contributing positively to the Australian community;

    ·the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

26. The Applicant arrived in Australia as a seven-year-old child in 2008. He first offended at the age of 14 years and has been incarcerated since November 2017. He is now 22 years old.

27. The Applicant’s parents, Mr ‘SP’ and Ms ‘RH’, provided written and oral evidence about their family’s difficulties in the period of the Applicant’s offending from 2014 to 2017. In particular, they explained that Mr ‘SP’ was diagnosed with medical conditions in 2015 that affected his physical mobility and capacity to work, and he required significant care from Ms ‘RH’. Their family’s financial situation then became very difficult as Mr ‘SP’ was unable to work and also experienced depression. Ms ‘RH’ wrote that her partner had been the ‘main income, and all of that stopped’ and there was no food or money.[102] She also said that during this period she was ‘not involved enough with the [Applicant’s] school’ and in the lives of the Applicant and his brother.[103]

    [102] Exhibit A3.

    [103] Exhibit TB-TB4, page 144.

28. I am satisfied the evidence shows that, while in juvenile justice centres and adult prisons, the Applicant completed his high school certificate and education courses in horticulture, visual arts and personal training, and participated in rehabilitation programs. He was released from jail on parole at the earliest possible date, which I consider to be a positive indication of his behaviour while incarcerated.

29. All of the Applicant’s immediate family reside in Australia, except his younger brother who also offended in October 2017 and returned to New Zealand earlier this year after his visa was cancelled. The Applicant’s father, Mr ‘SP’, who is an Australian citizen, provided a written statement that he and his partner, Ms ‘RH’, decided to move to Australia with their children in 2008 because many of his extended family members lived in Australia and he would be able to access ‘good jobs’ and the children would have a ‘better education’.[104]

    [104] Exhibit A4.

30. The Applicant’s parents, Mr ‘SP’ and Ms ‘RH’, two older sisters, Ms ‘MH’ and Ms ‘SP’, brother-in-law, Mr ‘TM’, and younger brother, ‘G’, filed written statements with the Tribunal. In addition, the Applicant’s parents, sisters and brother-in-law gave oral evidence at the Tribunal hearing on 15 and 16 June 2022.

31. All of the Applicant’s family members commented on the positive changes they have observed in the Applicant since he has been incarcerated, including that he has ‘matured’ and ‘has realised how much he has missed out on in his life … [and] has woken up and wants a second chance’.[105]

    [105] Exhibits A3 and A5.

32. The evidence of the Applicant’s family members also outlined the support they would provide the Applicant if he is released into the Australian community, including that he would live with his oldest sister, Ms ‘MH’, her partner, Mr ‘TM’ and her children. They also outlined employment opportunities with either his mother, Ms ‘RH’, working as a packer or in the warehouse, or with Mr ‘TM’, working as a pallet repairer. Ms ‘MH’ also wrote that, if the Applicant ‘can’t get a job straightaway, [she] can give him some financial support while he gets back on his feet’.[106] However, Ms ‘MH’ identified the importance of the Applicant being ‘busy’, noting:

    I don’t want him to be sitting at home doing nothing. He might fall back into old habits like hanging out with the people he used to be friends with. He told me he doesn’t talk to them anymore, but I’m still a bit worried.[107]

    [106] Exhibit A5.

    [107] Ibid.

33. In his oral evidence to the Tribunal, the Applicant outlined his plans if he is released from immigration detention. He said he would live with Ms ‘MH’, Mr ‘TM’ and ‘A’, ‘B’ and ‘C’ who live close to their parents and Ms ‘SP’ and her children. He also said he would work with his mother, Ms ‘RH’, when he is first released for the following reasons:

    It’s just to get me comfortable with everything on the outside. Because in here [immigration detention] it’s a steady place, everything moves at the same pace. Where out there it’s going to be full on with everything, so working with my mum would make me comfortable and feel better, and she can guide me ...[108]

    [108] Oral evidence of the Applicant on 15 June 2022, transcript of proceedings, page 41.

34. I am satisfied the evidence shows the Applicant has strong and durable family links to Australian citizens and people who have an indefinite right to remain in Australia, including – as outlined in paragraphs 80 to 90 – seven minor children. I further find that these family members have provided credible evidence about their role in supporting the Applicant to re-engage with employment and rehabilitation if he is released into the Australian community. 

35. For these reasons, I am satisfied the other consideration of strength, nature and duration of ties to Australia weighs strongly for exercising the discretion to revoke the decision to mandatorily cancel the Applicant’s visa.

    CONCLUSION

1. I am satisfied that:

   ·the first primary consideration (protection of the Australian community from criminal or other serious conduct) and the fourth primary consideration (expectations of the Australian community) weighs against exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa;

   ·the second primary consideration (whether the conduct constituted family violence) has neutral weight in relation to revoking the mandatory visa cancellation; and

   ·the third primary consideration (best interests of minor children in Australia) weighs for exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa.

2. In relation to the other considerations, I find:

   ·the extent of impediments to the Applicant if he is removed from Australia and the strength, nature and duration of ties to Australia weigh strongly for exercising the discretion to revoke the mandatory cancellation of his visa.

3. Section 7 of Direction No. 90 states that primary considerations should generally be given greater weight than other considerations. However, I consider this weighting should not apply to the Applicant in these particular circumstances where the Applicant was under the age of 18 years when he offended in company and has good prospects of rehabilitation. I have also considered and place significant weight on the best interests of minor children and the extent to which the Applicant – who has ADHD and a mild/moderate intellectual disability and is illiterate – requires the physical, emotional and financial support of his immediate family members.

4. Weighing all the relevant primary considerations and other considerations, I am satisfied there is another reason to revoke the decision to cancel the Applicant’s visa.

5. For these reasons, the decision made by a delegate of the Minister on 26 October 2020 to not revoke the mandatory cancellation of the Applicant’s visa is set aside.

   DECISION

6. The decision under review is set aside and, in substitution, the cancellation of the Applicant’s visa is revoked under subsection 501CA(4) of the Migration Act 1958 (Cth).

I certify that the preceding 129 (one hundred and twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

...................................[SGD].....................................

Associate

Dated: 6 July 2022

Dates of hearing:	15 & 16 June 2022
Counsel for the Applicant:	Mr J. Moore & Mr. J. Murphy
Solicitors for the Applicant:	Ms H. Gray, Legal Aid NSW
Solicitors for the Respondent:	Mr C. Orchard, Sparke Helmore Lawyers