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

[2021] AATA 2173

BMGT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2173 (1 June 2021)

Division:GENERAL DIVISION

File Number:2021/1486          

Re:BMGT  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Member McLean Williams

Date of Decision:                   1 June 2021

Date of Written Reasons:      5 July 2021

Place:Brisbane

The decision under review is affirmed.

........................[sgd]................................................
Member McLean Williams

Catchwords

MIGRATION – Non-revocation of mandatory cancellation of Special Category (Class TY) (Subclass 444) visa – where Applicant does not pass character test – whether there is another reason to revoke the mandatory cancellation decision – consideration and application of Ministerial Direction No 90 – decision under review is affirmed

Legislation

Migration Act 1958 (Cth)

Cases

FYBR v Minister for Home Affairs [2019] FCAFC 185

Khalil v Minister for Home Affairs [2019] FCAFC 151

Minister for Home Affairs v Buadromo [2018] FCAFC 151

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

SECONDARY MATERIAL

Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Member McLean Williams 

5 July 2021

INTRODUCTION AND BACKGROUND

1. On 1 June 2021, the Tribunal gave its decision[1] in this matter affirming the decision here under review.

   [1]  Annexure A to these reasons.

2. In accordance with the principles outlined by the Full Federal Court in Khalil v Minister for Home Affairs [2019] FCAFC 151 (“Khalil”), the Tribunal now publishes the written Reasons for that decision. In Khalil, the Full Federal Court said:

   “41. The AAT Act thus draws a clear distinction between the decision of the Tribunal under s 43 which is, relevantly, what causes the 84 day period to stop running, and the reasons for decision. In BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 the Tribunal had handed down a decision on a review of a decision of the Australian Securities Commission that was before it, confirming an exemption that the Commission had granted on certain conditions, but substituting different conditions. At the time of announcing the decision the Tribunal did not give any reasons. It delivered written reasons some 14 days later. Beaumont J held (at 271 273, Lockhart and Hill JJ agreeing at 253) that the Tribunal's omission to provide reasons at the time of announcing its decision was not an error, as on the proper construction of s 43(2) of the AAT Act, the Tribunal was only required it to give its reasons, oral or in writing, within a reasonable time of the decision.

   …

   48. What the Tribunal had to do here within the 84 days was to deliver a decision, not necessarily express reasons…”

   [My underlining]

3. As will be discussed in more detail subsequently, the Applicant was first convicted of criminal offences in Australia when aged just 14. Then, on 16 and 17 October 2017, when aged 17 years and approximately five months, the Applicant committed a spate of six armed robberies whilst in company.  In some of these, the Applicant and his co-offenders also had recourse to serious violence, thus giving rise to significant injuries to those victims.  On 15 November 2019, the Applicant was convicted for these offences and sentenced to an aggregate term of imprisonment of six years, with a non-parole period of three years (concluding on 1 November 2020).  

4. On 23 January 2020, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa under s.501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that the Applicant did not pass the character test and was at that stage serving a full time custodial sentence.[2] On 26 February 2020, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[3] On 26 October 2020, a decision was made to not revoke the visa cancellation (“the non-revocation decision”).[4] Subsequently, it came to the attention of the Respondent Minister that the Applicant had not been properly notified of the non-revocation decision in accordance with the requirements of s.501G of the Act such that, on 9 March 2021, the Applicant was re‑notified of the non-revocation decision.[5]

   [2] Exhibit G1, G14, page 79.

   [3] Exhibit G1, G20, page 59.

   [4] Exhibit G1, G7, page 19.

   [5] Exhibit G1, G4, page 13.

5. The Applicant lodged an application in this Tribunal for review of the non-revocation decision, on 12 March 2021[6] The Tribunal has jurisdiction to review that decision, pursuant to s.500(1)(ba) of the Act.

   [6] Exhibit G1, G1, page 1.

6. The hearing of this application for review took place on 18 May 2021.

7. At the hearing, the Tribunal received oral evidence via audio visual link from the Applicant, as well as evidence by telephone from the Applicant’s mother.

8. The Tribunal also received the written evidence that is now listed in the attached exhibit list, marked as “Annexure B” to these reasons.

   FACTUAL BACKGROUND and offending History

9. The Applicant is a 21-year-old male, New Zealand citizen of Samoan descent who was born in Auckland.[7]

   [7] Exhibit G1, G12, page 64.

10. The Applicant and his family - comprising his parents, two sisters and three brothers -relocated to Australia in April 2008, when the Applicant was about seven years of age. The Applicant was granted a Special Category (Class TY) (Subclass 444) visa on arrival, and has not departed Australia since that time.[8]

    [8] Exhibit G1, G12, page 68; G13, page 78.

11. Upon arrival, the Applicant resumed his schooling, in Sydney. Almost from the outset, the Applicant displayed behavioural issues and learning difficulties at primary school, with the Applicant saying he has always struggled with reading and writing.[9] In a forensic psychology report prepared in February 2019, as had been tendered at the sentencing hearing before the District Court of New South Wales on 15 November 2019, it is reported as follows: [10]

    “[the Applicant] described persistent difficulty understanding academic components of schooling and reported poor literacy skills. The summary information by his lawyer documented that [the Applicant] demonstrated behavioural problems from an early age and was placed in an Emotional Disorder and Behavioural Disorder support class throughout Years Five and Six.”

    [9] Exhibit R2, page 17; Exhibit A2; Exhibit A4.

    [10] Exhibit R2, page 17.

12. About a year after arriving in Australia, the Applicant was suspended from school for violent behaviour involving the Applicant grabbing at a school teacher’s throat.[11] When asked about this incident during cross-examination when before the Tribunal, the Applicant responded by saying: “I wasn’t good at that time, mentally and physically.”[12]

    [11] Transcript, page 10.

    [12] Transcript, page 11, lines 2 and 3.

13. The Applicant’s behavioural issues only continued whilst at high school, and he was suspended from school on several occasions for violent behaviour towards other students.[13] Despite his again being placed into a Support Unit, the Applicant’s challenging behaviours persisted, until he was eventually transferred to a high school for students with additional needs in learning and behaviour.[14] The 2019 forensic psychologist’s report further details this period:[15]

    “He was enrolled in a support unit during high school, but continued to display behavioural problems which pre-empted his transfer to a school for behaviourally disruptive students. [The Applicant] was exited from this school in 2017 due to non-attendance. [The Applicant] reflected that he had often engaged in physical altercations with peers and had struggled to pay attention to teacher direction.”

    [13] Transcript, page 10.

    [14] Exhibit R2, page 54.

    [15] Exhibit R2, page 17.

14. In 2013, when aged 12, the Applicant was involved in malicious damage to a house where he and three friends had gained unlawful entry through the downstairs door, by smashing the glass. Once inside, they proceeded to smash windows, and graffiti and smash panelling in most of the rooms in the house.[16] Under cross-examination, the Applicant accepted the facts as read out by the Respondent, and agreed that what he had done at the time was wrong.[17]

    [16] Exhibit R2, page 125.

    [17] Transcript, page 11.

15. The Applicant told the Tribunal that in 2013 to 2014 (when aged 13 or 14), he started drinking alcohol, and smoking cannabis with friends. He said he did not drink much initially, usually once every two weeks. However, he stated that he was a daily user of cannabis at that time.[18]

    [18] Transcript, page 9.

16. In October 2014, the Applicant committed his first major offence, ‘robbery in company’. According to the Police Fact Sheet,[19] the Applicant and another young male approached the victim on a pretence, asking him for the time. The Applicant then demanded that the victim hand over his phone. When the victim refused, the Applicant threatened the victim, saying “You wanna get stabbed?”. The victim said no, and after further comments from the Applicant’s friend, the victim relinquished his phone to the Applicant.

    [19] Exhibit R2, page 60.

17. The Applicant asked for the code to unlock the victim’s mobile phone. The victim stated that the mobile phone belonged to his father, such that he did not know the code. The Applicant did not believe the victim, and further threatened him by saying, “Bullshit, you know it. Give me the code, or I am going to stab you.” The victim eventually gave the code to the Applicant, and both the Applicant and his friend then decamped.

18. At the hearing, the Applicant added to the details particularised in the Police Fact Sheet regarding his first offending episode. His evidence was that he and a friend had happened to drive past the victim at a bus stop, and on a whim had decided to “intimidate him and take his stuff”. The Applicant also agreed that he had threatened to stab the victim, if he did not hand the mobile phone over to the Applicant, and confirmed that had been completely sober, and not under the influence of drugs when this crime had been committed.[20]

    [20] Transcript, pages 11 and 12.

19. In April 2015, the Applicant appeared in the Parramatta Childrens’ Court and was sentenced for the offence of ‘robbery in company’. He was directed to enter into a 12 month good behaviour bond, supervised by Juvenile Justice NSW. During the hearing, the Applicant confirmed that the conditions of the bond had been explained to him, and that he understood - yet then failed to comply with - the directions of Juvenile Justice NSW, by his having failed to attend school and maintain contact with Juvenile Justice in the manner required.[21] In consequence, the Applicant was required to re-appear before the Parramatta Childrens’ Court for re-sentencing, in March 2016.

    [21] Exhibit R2, page 29; and Transcript, page 12.

20. In 2016, the Applicant temporarily worked as a tree lopper in the business operated by a family member.[22] This appears to be the only gainful employment that the Applicant has had whilst in Australia, notwithstanding his no longer at that time being in full time education.

    [22] Exhibit G1, G12, page 74; and Transcript, page 10.

21. In April 2017, the Applicant committed his next offences. These transpired while the Applicant was waiting at a police station with his mother, who had attended the police station for a matter regarding the Applicant’s brother.[23]

    [23] Transcript, page 12.

22. A police Facts Sheet referable to these offences reveals that the Applicant was drinking alcohol outside the police station.[24] Police in plain clothes noticed this, and approached the Applicant, who then wolf-whistled at the female officer. At this point, the Applicant’s mother exited the police station and is claimed by the police to have then said: “leave my fucken son alone you fucken dogs” before walking towards the police. At that point, the Applicant stood up and is reported as having said: “leave my mother alone you fucken bitch.” As he said this, the Applicant also raised his right fist in a motion as if to punch the female police officer.  As may be expected, the Applicant was arrested.

    [24] Exhibit R2, page 45.

23. While being placed under arrest, the Applicant resisted, pulling his arms away and swinging his fist at one of the officers. The Applicant also proceeded to take off his t-shirt, saying, “lets fight, let’s go you fuck dog”, while also adopting a boxing stance. The arresting officer then grabbed the Applicant by his left arm and said, “don’t be stupid and don’t resist.” The Applicant pulled his arm away once again and motioned as if to punch the officer with his right fist, however then he pulled it back. Instead, the Applicant walked towards the officer and head-butted him to the left side of the face. At this stage, the Applicant’s father grabbed the Applicant off the police officer, also pushing the police officer out of the way. The Applicant was then escorted inside the police station.

24. While the Applicant was being escorted to the custody reception area, his mother walked up to the female officer, grabbed hold of her jacket collar, and pushed the female police officer onto the police vehicle before grabbing at and pulling her hair. The female officer had to use several ‘hammer strikes’ to release the grip of the Applicant’s mother. The Applicant’s father then dragged his wife (the Applicant’s mother) away from the officer.

25. The police then also placed the Applicant’s mother under arrest. As they entered the custody reception area with the Applicant’s mother, the Applicant is recorded as having said to the police: “you fucken dog cunts, you sluts. Who was it, I will get you fucken cunts.”

26. During cross-examination before the Tribunal, the Applicant was asked about this incident. He explained as follows:[25]

    “Me and a friend of mine were sitting at the front of the Mt Druitt Police Station on the stairs, waiting for my mum to get my brother out of (indistinct), and a police officer was walking down and I whistled, and she got offence to that.  And she turned around - I can't remember what she said, but my mum was walking out at the same time and didn't like the way she was talking to me. They got face‑to‑face, and then she grabbed my mum, and I got up and started pushing and shoving.

    And you raised your fist to punch the female police officer in the face?---Yes, in an attempt to (indistinct).

    Pardon?  In an attempt to - - -?---Like, push her. Yes, I did raise my fist, but I wasn't going to hit her.

    And then the other male police officer went to arrest you?---Yes.

    And you resisted arrest?---Yes, I did.

    And in resisting arrest you head‑butted him in the face?---I don't remember anything about being head‑butted. That's the first time I've heard it.  It might have happened, but at the time I was angry, and I blacked out.  I guess I did resist arrest.

    What do you mean you blacked out?---So at the time - I was just angry.  I wasn't thinking.

    Had you been drinking alcohol?---Yes, I was that night.  I was drinking, yes.”

    [25] Transcript, pages 12 and 13.

27. In September 2017, the Applicant appeared in the Parramatta Childrens’ Court in relation to the offences he had committed in April of that year. The Applicant was sentenced, as follows: [26]

    ·     ‘resist officer in execution of duty’ – no conviction was recorded. The Applicant received a six month good behaviour bond; and

    ·     two counts of ‘assault officer in execution of duty’ – no conviction was recorded. The Applicant received a six month good behaviour bond on one count of assault, and a nine month good behaviour bond under the supervision of Juvenile Justice with respect to the other count of assault.

    [26] Exhibit G1, G9, page 35.

28. In 2017 to 2018, the Applicant’s alcohol consumption increased. His evidence was that he started drinking alcohol more regularly around this time, drinking every two days, adding he was “on it quite a bit”. The Applicant denied however that he would ‘binge drink’ alcohol.[27]

    [27] Transcript, page 9.

29. Whilst the Applicant’s alcohol consumption appears to have increased at that point, the Applicant also stated that he had stopped smoking cannabis when he was around 17 years of age (in 2017), ceasing completely before he went to prison in October of 2017. The reason proffered by the Applicant for the cessation of his cannabis use was because, at that stage, he had “kind of got sick of it”.[28]

    [28] Transcript, pages 9 and 10.

30. On 16 and 17 October 2017, the Applicant committed his most serious offences with three co-offenders, involving multiple armed robberies. One of the co-offenders was his brother.  A Statement of Agreed Facts tendered at the sentencing hearing before the District Court of New South Wales at Sydney outline the circumstances of these offences.[29] At around 11:00pm on 16 October 2017, the Applicant and his co-offenders stole a vehicle and drove through the inner-city of Sydney, whilst committing armed robbery offences.

    Armed robbery of Mr R

    [29] Exhibit G1, G10, pages 36 to 58; Exhibit R2, pages 2 to 13.

31. In the early morning on 17 October 2017, a 39 year old man (Mr R) was walking along the street to his car after finishing work late. The stolen car carrying the Applicant and the three co-offenders turned onto the same street as Mr R, and stopped in the middle of the road. Three pacific islander males alighted from the car, each wearing balaclavas. One of the offenders was holding a golf club, and another was holding a baseball bat. The three offenders ran at Mr R and one grabbed his laptop bag while another began yelling “Give us everything! Give us everything! Give us everything!”. Mr R then felt a strike to the back of his head before the offender holding the golf club swung the club at his face, striking him on the top left side of his brow. Mr R fell to the ground, and noticed he was bleeding from where he had been struck.

32. At this point one of the offenders began yelling, “What is in your pocket?! What is in your pocket?!” before one of the others reached into his right-side pocket and pulled out the victim’s iPhone. Mr R then heard the offenders run off, get into their car and drive away, taking his laptop bag and his mobile phone with them.

    Armed robbery in Hyde Park

33. Shortly after the first armed robbery, three victims were walking through Hyde Park (‘the Hyde Park victims’) when the four offenders got out of the stolen car and approached them.

34. One victim (Ms C) recalls that the male who approached her had been holding a knife in his right hand, which she described as a pocketknife. Another offender was carrying a black and yellow baseball bat, and she also observed that another was carrying something long and thin, resembling a baton.

35. One of the offenders then grabbed hold of Ms C’s handbag and held a knife about 45 centimetres away from her, towards the side of her stomach while saying “Give me your bag if you do not want to get stabbed.” Ms C allowed him to take her handbag. He then demanded her phone, and everything she had. The victim replied, “No, please”. The offender then moved the knife closer to Ms C, so that it was only about two to five centimetres away from her. Feeling scared, Ms C gave the offender her phone.

36. As this was taking place, the offender carrying the baseball bat grabbed the other female victim’s (Ms M) handbag. Ms M raised her arms above her head in an attempt to indicate that she would not resist. The offender then grabbed her phone from her hand.

37. The offender that approached the male victim (Mr B) walked up close to Mr B and said, “Give us your stuff and nothing needs to happen”, at which point the offender’s hand was on Mr B’s bag while holding the baton towards the him. Mr B let go of his bag, and the offenders got back into the car and drove off.

38. The items stolen included Ms C’s bag valued at $35, containing her passport, an 18-karat white gold necklace worth $200, new shorts, a leather purse worth $200 and credit cards, and her iPhone valued at $1000. Ms M’s bag valued at $10, contained items including her passport, and her Nokia phone valued at $300 which had various bank cards inside the phone case. Mr B’s bag contained an iPhone 5S worth $300, portable phone charger worth $120, Ray-Ban sunglasses worth $180, and other items.

    Armed robbery of Mr N

1. An overseas tourist (Mr N) went for a walk around Sydney prior to an early flight to Melbourne. He noticed a male standing in front of him and moved to the side so as to allow the man to walk past him, at which point he also noticed there were two other males with the man.

2. Mr N then felt something hit him, hard to the left side of his mouth, causing him to fall down. Mr N felt immediate pain and could instantly tell that the blow had caused him to lose some teeth. The offender who had been standing behind Mr N then knelt down and pushed against him, to keep Mr N on the ground and held a knife to his throat. The other two offenders proceeded to take Mr N’s wallet from his right pocket and attempted, unsuccessfully, to take his phone from his other pocket.

3. At this point, Mr N noticed that the offender who had been standing to his left earlier was holding a golf club. Another offender then took Mr N’s backpack from his shoulders. The offender holding the golf club continued to try and take Mr N’s phone, however, he was urged by the others to leave, because they didn’t have time. Mr N next recalled that all three men got into a car and drove off.

4. A plastic surgeon examined and performed emergency surgery upon Mr N later that morning. Mr N presented with a laceration of the lip, approximately three centimetres in length, he also suffered the loss of a number of teeth as well as several other fractured teeth. Mr N’s jaw had to be wired shut for six weeks following his surgery and he was left in a state in which he was missing his front four top teeth. Mr N’s backpack containing items of clothing, a black iPad pro valued at 1000 euros, a Panasonic Lumix camera valued at 500 euros, prescription glasses valued at 300 euros, his passport and other items were also stolen.

   7-Eleven armed robbery

5. Later that morning, three of the males implicated in the earlier armed robberies entered a Sydney 7-Eleven. One was armed with a golf club, another with a hammer, and the Applicant was armed with a machete. The Applicant was also wearing a face covering.

6. Money and cigarettes were demanded from the 7-Eleven staff member (Mr S), who placed the tray from the till on the counter. The offenders stole around $250 from the tray. One of the offenders demanded cigarettes.  Mr S gave them around 30 packets of cigarettes at an estimated value of $1000. During this time, the Applicant entered a rear storeroom and stole a backpack that contained the personal property of Mr S, including an Apple MacBook, and study material.

7. Shortly after the armed robbery at the 7-Eleven, police identified and attempted to stop the stolen vehicle that was being driven by the offenders, however, it continued away at speed, and the police initiated a pursuit. During the pursuit, the vehicle was observed to disobey red traffic lights and to be driven at dangerous speeds. The pursuit was ultimately terminated by the police due to the risk posed to the community. During the pursuit, a number of items were thrown from the vehicle. Some of these items were later recovered by the police and these included several items that were identified as belonging to the victims from the earlier armed robbery offences that day.

8. On 2 November 2017, NSW Police executed a search warrant at the Applicant’s residence and he and his brother were arrested. The police also located several items that had been implicated in the earlier robbery offences including a black facemask, a pair of black golf clubs, and a machete.

9. The Applicant was taken into custody and held on remand while he awaited the outcome of his criminal matter.[30]

   [30] Exhibit G1, G9, pages 30 and 35; and Transcript, page 38.

10. During cross-examination, the Applicant was asked about the armed robberies just described, and by way of context, the Applicant explained these in the following terms: [31]

    “Can you tell the tribunal member what occurred on the night of 16 October 2017, so the most recent offence?---About how (indistinct) how I committed all those offences?

    Yes?---Well I was at home sleeping.  I'd been woken up by (indistinct).  I went outside with him.  We jumped in the car that I knew was stolen.  We were driving around.  We had a conversation about breaking into houses and doing other stuff.  Done that for a bit, and then we made our way up towards the city where we started pulling up and assaulting and robbing innocent people.  So we done that for about two hours - - -

    MEMBER:  BMGT, why did you do it?---I was just immature, didn't care about anyone's feelings but mine, and I guess just to impress the people that I was surrounding myself with.

    All right?---But yes, so we done that.  We'd assaulted someone on the streets with a baseball bat and a golf stick. We actually broke his jaw.  We left him there.  We made our way up to a 7‑Eleven that we robbed, and then from there we were driving back to where we lived and got into a high pursuit with police, and they were chasing us and - yes.  So we got back to the area and we sold everything, got rid of everything.  And at the time, what happened I didn't really care about was something that I was doing along the years, me getting in trouble didn't thought about it much until I got incarcerated.  But I do accept everything that I done was wrong and I know (indistinct) if I was to see them I would say sorry, and yes, well that's what happened that night.”

    [31] Transcript, pages 13 and 14.

11. The Applicant’s evidence was that he did not directly rob or assault the first victim of the armed robberies. He agreed however that he observed the incident unfold, did not assist the victim, and stayed with his friends to continue their ‘crime spree’: [32]

    [32] Transcript, pages 14 and 15.

    “Before you went into the city, you committed an armed robbery against another man in Parramatta, do you remember that?---Yes.

    What happened there?---Friends of mine jumped out, assaulted him with a golf club, hit him in the back of the head and took his bags, and we drove off, we left him there.

    So you saw the rest of your friends who you were with jump out of the car, hit someone in the back of the head with a golf club?---Yes.

    You saw the victim fall to the ground?---Yes.

    You saw your friends rob him?---Yes.

    And then you all ran away, got in the car and drove away, is that right?---Yes.

    At that point you didn't go home, did you?---No.

    You decided to stay with your friend?---Yes, I did.

    And then after that you all drove into the city, is that right?---Yes.”

12. Based on the Applicant’s evidence regarding the Hyde Park robbery, it seems he not only threatened Ms C with the knife but also threatened Mr B during this incident:[33]

    [33] Transcript, pages 15 and 16.

    “And in the city you went to Hyde Park, you know, that big park in the middle of the city?---Yes.  And we did – well I think three people it was, at knife point, for their bags and phones.

    So you robbed three people?---Yes.

    At knife point?---Yes.

    For their bags and phones, okay?---Yes.

    And what was your role in that robbery?---I was the one that was holding the knife and (indistinct) over.

    Sorry, I didn’t quite hear that end bit?---I was the one that was holding the knife and demanding everything over.

    And where were you holding the knife, what were you doing with the knife?---I was holding it towards them.

    Towards them, it was a bit closer than - - - ?---(indistinct).

    It was a bit closer than towards them, wasn’t it, BMGT?---Sorry, what was that?

    That it was a bit closer than towards them, wasn’t it?---Yes, it was.

    Can you tell the tribunal what you were doing with the knife?---Well I had it up towards his chest, aiming up.  And he was backing off and I was walking towards him and then yes, we kind of put a lot of pressure on him to hand his stuff – the stuff over but it was never my intentions to actually stab him.

    …/

    MS DONALD:  Thank you, Member.  Now you didn’t just threaten the guy with a knife, you also threatened one of the girls, that’s right, isn’t it?---Yes.

    And what – how did you threaten her with the knife?---The same way I did with the other person.

    The same way?---Yes.

    Now it’s correct isn’t it, that you moved the knife close to her, about two to five centimetres away from her?---Yes.

    Towards the left side of her stomach?---Yes.

    And you said to her, give me your bag if you don’t want to get stabbed?---Yes.

    Thank you.  Now after that, you didn’t stop there, did you?---No.”

13. The Respondent put it to the Applicant that he held a knife to Mr N’s throat in the third robbery. However, the Applicant did not agree with that version of events. He agreed he was present while his friends attacked Mr N, but he did not remember holding a knife towards the victim:[34]

    [34] Transcript, pages 16 to 18.

    “And then after that, you and your friends committed a further armed robbery?---Yes.

    And that was with, you say, a baseball bat and a golf stick?---Yes.

    Now someone held a knife to that victim’s throat, that was you, wasn’t it?---Is this the one of the backpacker?

    Yes, this is the backpacker?---Yes.

    So it’s correct then that one of your friends hit the victim in the mouth with a golf club?---Yes.

    The backpacker fell to the ground and then you held a knife to his throat?---I don’t – no, that’s not true.  So what happened is we drove past him, in the car we were in, we jumped out, chased him or whatever, hit him in the back of the head with a baseball bat, he fell over and the boys continued to kick him but I do not remember me holding a knife towards his neck, no.

    MEMBER:  But you were there at the time, weren’t you?---Yes.

    And you were, at least, encouraging the boys by your presence, weren’t you?---Sorry, what was that?

    You were at least encouraging the boys by your presence with them at the time, you were providing moral support which makes you a party to that offence, doesn’t it?---Yes, it does make me – but I don’t remember holding a knife towards him, I was there and I did play a role in it.

    All right.  And it might be that you’ve just forgotten holding a knife because you’ve held the knife to the throats of a few people over the years, haven’t you?---Yes, I have but - - -

    All right, thank you?---That particular incident was the most serious out of all of them and I won’t forget that one and I know for a fact that I didn’t hold a knife towards him.

    But you don’t disagree that this poor fellow was violently assaulted that day, I mean, he was hit over the back of the head with a baseball bat after all.  And then when he was on the ground and defenceless, he was kicked.  And you were there at the time?---Yes.

    …/

    Now after that armed robbery, you said you and your friends just left the victim there?---Yes, we did.

    He was still on the ground, I take it?---Yes.

    Now you didn’t call an ambulance, did you?---No.

    Didn’t call for help?---We didn’t do nothing in that sort, we left him there and we continued on our crime spree. ”

14. In relation to the 7-Eleven robbery, the Applicant gave the following evidence:[35]

    “And then with the last of your crime sprees, so that’s the 7-Eleven (indistinct), what happened there?---We pulled up at a 7-Eleven where we robbed the worker, we demand him for money and cigarettes, I believe we ran in there with the baseball bat and the machete, I was holding the machete so me and two co-offenders of mine ran in, we done that and I ran out towards the back of the office and grabbed the bag.  And then we left that place and then that’s where we bumped into police.

    Would it be fair to say that you were leading the charge when you were with friends, ran into the stop to commit the armed robbery?---Yes.

    And it’s fair to say that you threatened the shop assistant, holding or bandaging a machete?---Yes.

    And you say that you hadn’t taken any drugs that night?---No.

    And you haven’t been drinking any alcohol?---No.

    So you were fully sober?---Yes.

    And you were a willing participant in all of these crimes, that’s correct, isn’t it?---Yes.”

    [35] Transcript, page 18.

15. On 15 November 2019, the Applicant was convicted of one count of ‘robbery in company cause wounding/grievous bodily harm’, five counts of ‘robbery armed with offensive weapon’ and ‘be carried away in conveyance taken without consent of owner’.[36] For these robbery offences, the Applicant was sentenced to an aggregate term of imprisonment of six years, with a non-parole period of three years. The offence of ‘be carried away in conveyance taken without consent of owner’ was placed on a ‘form 1’ and was taken into account with the robbery offences.

    [36] Exhibit G1, G9, pages 30 to 34.

16. On 23 January 2020, the Applicant’s Special Category (Class TY) (Subclass 444) visa was cancelled.[37] The Applicant made representations to the Minister on 26 February 2020 requesting the revocation of the cancellation of his visa.[38] The Applicant was subsequently transferred to immigration detention.

    [37] Exhibit G1, G14, page 79.

    [38] Exhibit G1, G20, page 59.

    Incidents in Immigration Detention

17. There is a report before the Tribunal that records an incident in immigration detention in March 2021, where the Applicant threatened an officer.[39] According to an ‘Incident Detail Report’, the Applicant approached an officer and threatened him by saying, “what’s your problem you fucking dog ill smash you’re fucking head in [sic]”. The officer remained calm, but the Applicant continued abusing the officer by stating “you think you’re a tough cunt come on ill  smash you [sic]” and started walking towards the officer with a clenched fist but was restrained.

    [39] Exhibit R2, page 156.

18. When asked about the background to the incident during cross-examination, the Applicant gave the following response:[40]

    “Now, what was that incident in response to?‑‑‑I was getting forcefully removed back to NZ and this whole time for me being here, I’ve been trying to fight it and because I got the wrong paperwork - I’ve actually had my brother’s paperwork, so there wasn’t any time to find it at all and I’ve only had a three - three days’ notice that I was getting forcefully removed.  So, in-between that three days I was getting a lawyer to get me off the plane and then the day finally come for me to get forcefully removed and I was upset, the family wasn’t too happy and I just felt like the way he approached me was unprofessional by him was upsetting me in a way and reacted the way I did.

    And so when you got upset you got angry?‑‑‑Yes.

    And you responded by threatening the officer?‑‑‑Yes.

    And then you got physically aggressive as well, didn’t you?‑‑‑Yes.”

    [40] Transcript, page 21.

19. On 26 October 2020, a decision was made to not revoke the visa cancellation decision.[41] The Respondent explains that the Applicant was not properly notified of the non-revocation decision in accordance with s.501G of the Act on that occasion, and the Applicant was ‘re‑notified’ of that decision on 9 March 2021,[42] whereupon the Applicant commenced this application for review before the Tribunal.

    [41] Exhibit G1, G7, page 19.

    [42] Exhibit G1, G4, page 13.

    ISSUES

20. Revocation of the mandatory cancellation of visas is a matter governed by s.501CA(4) of the Act. Relevantly, s.501CA(4) provides:

    (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.

21. I am satisfied that the Applicant made the representations required by s.501CA(4)(a) of the Act.

22. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[43] 

    “…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”

    [43] [2018] FCAFC 151.

23. There are therefore two issues before the Tribunal:

    ·whether the Applicant passes the character test; and

    ·if not, whether there is ‘another reason’ why the decision to cancel the Applicant’s visa should be revoked.

    Does the Applicant Pass the Character Test?

24. The character test is set out in s.501(6) of the Act. Under s.501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is defined by s.501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.

25. As discussed in the factual analysis in preceding paragraphs in these reasons, the Applicant’s criminal record culminates in his having received an aggregate sentence of imprisonment of six years with a non-parole period of three years as ordered by the District Court of New South Wales at Sydney, on 15 November 2019.

26. The Tribunal therefore finds that, because of s.501(7)(c), the Applicant has a “substantial criminal record”, and cannot pass the character test. In these circumstances, the Applicant cannot rely on s.501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked. Thus, the issue becomes whether there is another reason why the original decision should be revoked.

    Is There Another Reason why the Visa Cancellation Decision Should be Revoked?

27. In considering whether to exercise the discretion in s.501CA(4) of the Act, the Tribunal is bound, because of s.499(2A), to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Ministerial Direction”) has application. 

28. For the purposes of deciding whether to refuse or cancel a non-citizen’s visa, or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Ministerial Direction contains several principles that must inform an application of each of the considerations identified in Part 2, wherever these may be relevant to the decision. The principles that are found in paragraph 5.2 of the Ministerial Direction are as follows:

    (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 measurable risk of causing physical harm to the Australian community.

1. Paragraph 6 of the Ministerial Direction provides that, once suitably informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in paragraphs 8 and 9, wherever these may be relevant. Paragraph 8 of the Ministerial Direction then sets out four (4) ‘Primary Considerations’:

   (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.

2. Next, Paragraph 9 of the Ministerial Direction sets out four (4) ‘Other Considerations’, which must also be taken into account. These are:

   a)international non-refoulement obligations;

   b)extent of impediments if removed;

   c)impact on victims; and

   d)links to the Australian community, including:

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

   (ii)impact on Australian business interests.

3. These are “other” considerations, as opposed to merely secondary considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[44]

   “…Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non-refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”

   [44] [2018] FCA 594 at [23].

   PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY

4. When considering Primary Consideration 1, paragraph 8.1 of the Ministerial Direction requires decision makers to keep in mind that the Government is committed to protecting the Australian community from harm arising as a result of criminal activity, or other serious conduct by non-citizens. Decision makers are required to have particular regard for the principle that entering or remaining in this country is a privilege, that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals, or to the Australian community.

5. In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Ministerial Direction requires decision makers to 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.

   The Nature and Seriousness of the Applicant’s Conduct to Date

6. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Ministerial Direction specifies that decision makers must have regard for a number of factors. These are set out as sub-paragraphs (a) – (g) inclusive, of paragraph 8.1.1(1) of the Ministerial Direction.

7. The Applicant’s criminal history commences from the age of 14.  In April 2015 when aged 14 years and 11 months the Applicant was found guilty of an offence of robbery in company and was placed on a good behaviour bond for a period of 12 months.  Less than twelve months later the Applicant was called upon on that good behaviour bond, by reason of further offending.  On 19 September 2017 when aged 17, the Applicant was found guilty on two counts of assaulting a police officer in the execution of duty and one count of resist officer in the execution of duty and was placed on further good behaviour bonds, for a period of nine months.  Yet, less than one month later, on 16 and 17 October 2017, the Applicant committed several offences of armed robbery in company, resulting in his most recent six year term of imprisonment.

8. The Respondent submits[45] that the Applicant’s offending should be viewed by the Tribunal as ‘very serious’, for the following reasons:

   ·The robbery in company offences involved a high degree of violence.

   ·These attacks were random, unprovoked and cowardly.

   ·The crimes reveal and element of pre-planning.  Weapons were used.

   ·The Applicant was already subject to the requirements of a good behaviour bond.  Notwithstanding that, he re-offended.

   ·The attack in Hyde Park entailed violence against women.

   ·The Applicant has committed acts of violence against police officers during the performance of their duties.  Even when given opportunities to de-escalate those attacks, the Applicant was unpersuaded.

   ·An escalation in seriousness is evident in the Applicant’s criminal offending.

   ·That the Applicant was sentenced to a term of imprisonment of six years at such a young age serves as a measure of the seriousness with which his offending has been assessed by the District Court of New South Wales.

   [45] Exhibit R1, paragraphs [23] – [33].

9. The Tribunal concludes that the Applicant’s offending is random, unprovoked, cowardly, and thoroughly infused with violence.  Indeed, in the Tribunal’s assessment the Applicant’s offending is far more than ‘very’ serious: it is ‘extremely’ serious.  These attacks are characterised by their sheer violence, perpetrated in unpredictable and predatory fashion against unsuspecting members of the community, including against international tourists in Australia whom should be entitled to feel safe and protected, whilst visitors in this country.

   The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

10. Paragraph 8.1.2(1) of the Ministerial Direction provides that, when considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

11. Paragraph 8.1.2(2) then provides that when assessing the future risk that may be posed by the non-citizen to the Australian community, decision makers must have regard to, cumulatively:

    a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;

    b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    (i)information and evidence on the risk of the non-citizen re-offending; and

    (ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and

    c)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

    Nature of harm should the Applicant engage in further criminal or other serious conduct

12. The Respondent submits[46] that the Tribunal should consider the nature of the further physical harm that the Applicant might cause to further victims, in the event that he were to re-offend in a similar manner in the future; as well as to keep in mind the post traumatic sequelae for victims of these kinds of crimes.

    [46] Exhibit R1, paragraph [36] – [38].

13. In light of these things, the Respondent submits[47] that the nature of the harm that would arise in the event that the Applicant were to re-offend ranges from serious to catastrophic, such that the risk of the Applicant re-offending is now unacceptable.

    Likelihood of the non-citizen engaging in further criminal or other serious conduct in the future. 

    [47] Exhibit R1, paragraph [39].

14. The Respondent submits[48] that there is an unacceptable risk of recidivism by the Applicant due to the following:

    ·A history of difficulty with anger management and poor impulse control.

    ·Clear signs of intellectual delay, learning difficulties, antisocial peer relationships and impulsive antisocial behaviour.

    ·A concerning lack of insight on the part of the Applicant into the factors that have contributed to his offending and limited empathy for the plight of his victims.

    ·A critical absence of reliable stabilising influences available to the applicant, if released into the Australian community.

    [48] Exhibit R1, paragraph [41] – [48].

15. The Applicant has not made any submissions in response to these matters, other than to submit reference letters[49] that describe in broad and general terms, either efforts that will be made by family and friends to assist the Applicant to obtain further vocational skills and employment in the event that he is not deported; or that seek to describe further maturity and insight said to be acquired by the Applicant, whilst in prison.  Yet the Tribunal does not accept this evidence as now being anywhere near enough to allay the very real concerns that arise in relation to the risk of the Applicant re-offending.

    [49] Exhibits A1 - A7.

16. The Tribunal assesses the Applicant to be an inherently and impulsively violent person.  There is no real evidence before the Tribunal now suggesting any form of effective therapeutic intervention during the Applicant’s time in prison, even notwithstanding the fact of the Applicant having participated in some rehabilitation and vocational training, whilst in prison.  Nor is there any evidence of the Applicant being likely to have any effective pro-social influences, if he were now to be released back into the community that might be enough to constrain the risk of his resorting to further impulsive violent conduct in the future.  The Tribunal concludes therefore that the risk of the Applicant re-offending is unacceptable.

    Conclusion: Primary Consideration 1

17. As to Primary Consideration 1, the Tribunal concludes that protection of the Australian community must weigh against revocation of the visa cancellation decision, and that the weight that should attach to this consideration is so substantial as to now be determinative.

    PRIMARY CONSIDERATION 2: FAMILY VIOLENCE

18. Paragraph 8.2 of the Direction provides:

    (1)     The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).

    (2)     This consideration is relevant in circumstances where:

    a)  a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
    b)  there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.

    (3)     In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:

    a)  the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
    b)  the cumulative effect of repeated acts of family violence;
    c)  rehabilitation achieved at time of decision since the person’s last known act of family violence, including:

    i.    the extent to which the person accepts responsibility for their family violence related conduct;

    ii.   the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
    iii.  efforts to address factors which contributed to their conduct; and

    d)  Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.

19. There is no evidence before the Tribunal referable to any form of family violence considerations. 

    Conclusion: Primary Consideration 2

20. The Tribunal therefore concludes that Primary Consideration 2 is not applicable and only neutral weight attaches to this primary consideration.

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

21. Paragraph 8.3(1) of the Ministerial Direction compels a decision maker to make a determination about whether cancellation or refusal under s.501, or non-revocation under s.501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) then contain further stipulations. Paragraph 8.3(2) provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. Paragraph 8.3(3) provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

22. Paragraph 8.3(4) of the Ministerial Direction then sets out a number of factors that are to be taken into consideration regarding the best interests of minor children in Australia:

    a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

    b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

    c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

    d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

    e)whether there are other persons who already fulfil a parental role in relation to the child;

    f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

    g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

    h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

23. The Applicant is only 21 years of age and has no minor children of his own.  The Applicant has however identified five minor children in his personal circumstances form, although one of these, R, is one of the Applicant’s co-offenders in his most serious crimes and is now an adult.  Two other sisters, MH and SP, are also no longer children, thus leaving only younger brothers R1, aged about 16 years and 3 months; and R2, aged 15 years and approximately two months.  In addition to those minor children in Australia as named by the Applicant in his personal circumstances form there are also two nieces KP, aged about two years and eight months; and DM, aged about eight years and five months, as well as a nephew RM, aged about six years and three months.  Although unmentioned in the Applicant’s materials there is also evidence of two further children, MR and KH.  Evidence available to the Tribunal shows that MR is no longer a minor.  The age of KH (thought to be another niece), is unknown to the Tribunal.  In relation to all these children in Australia whom are still minors, the Respondent submits[50] as follows:

    ·The relationship between the Applicant and these other children is non-parental.

    ·The Applicant has been imprisoned since 2 November 2017.

    ·Given the Applicant’s offending history and absences in prison, it is now unlikely that the Applicant would play a positive role in the lives of these other children in the future.

    ·These other children may maintain contact with the Applicant by means of their travelling to New Zealand, or by other means.

    [50] Exhibit R1, paragraph [52].

24. The Tribunal notes that letters of support[51] have been submitted to the Tribunal by family members of the Applicant.  These indicate, to some extent, that these other children will miss having the Applicant in their day-to-day lives in Australia, in the event that he is to be deported.  That is now accepted by the Tribunal.

    [51] Exhibits A1 – A7.

25. As to the factors now adumbrated in paragraph 8.3(4) of the Ministerial Direction, the Tribunal determines as follows:

    a)the nature and duration of the relationship between the child and the non-citizen.

26. The nature of the relationship between the Applicant and these minor children is non-parental, and has been further truncated, by reason of the extent of the Applicant’s absence in prison.

    b)the extent to which the non-citizen is likely to play a positive parental role in the future

27. Given the Applicant’s propensity for violence and in light of his past offending, the Tribunal assesses the Applicant as being very unlikely to play a positive role in the lives of these other children in the future.

    c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child

28. There is no evidence before the Tribunal of the impact of the Applicant’s past conduct on these other children.  Any future conduct of the Applicant, in the event that he were allowed to remain in Australia        is however unlikely to have a positive impact on these members of the Applicant’s extended family who are minors.  

    d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways.

29. The Tribunal considers that, in light of the Applicant having been required to maintain contact with these other minor children by means of either telephone or other electronic means whilst incarcerated or in immigration detention, the ability for these other minor children in the Applicant’s extended family to continue to maintain their relationship with the Applicant by these means will not then be markedly further degraded, in the event that the Applicant were to be deported to New Zealand.

    e)whether there are other persons who already fulfil a parental role in relation to the child 

1. In the case of each of these minor children in Australia there are other persons already fulfilling a direct parental role.

   f)any known views of the child

2. The Tribunal accepts, on the basis of materials contained in the letters of support[52] provided for the Applicant from family members, that these other minor children would prefer that the Applicant not be deported.

   g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally

   [52]  Exhibits A1 – A6.

3. There is no evidence before the Tribunal referable to this consideration.

   h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

4. There is no evidence before the Tribunal referable to this consideration.

   Conclusion: Primary Consideration 3

5. Ultimately, the Tribunal concludes that the best interests of these minor children now weighs in favour of revocation of the cancellation decision, yet the weight that attaches to this consideration is only very limited.

   PRIMARY CONSIDERATION 4: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

6. Paragraph 8.4(1) of the Ministerial Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia.  Serious conduct in breach of this expectation by a non-citizen, or an unacceptable risk of that by a non-citizen ordinarily gives rise to a community expectation that the Government will not then allow the non-citizen to remain in Australia

7. Paragraph 8.4(2) of the Ministerial Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns, or the offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

   a)acts of family violence; or

   b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

   c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

   d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

   e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

   f)worker exploitation.

8. Paragraph 8.4(3) of the Ministerial Direction provides that the above expectations of the Australian community apply regardless whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

9. Paragraph 8.4(4) of the Ministerial Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph 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.

10. Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR  v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Ministerial Direction.

11. Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.

12. The Respondent submits[53] that this primary consideration weighs very heavily against revocation because “the norm stipulated in paragraph 8.4(1), and in accordance with the guidance provided by Principles 5.2(2) and (3) of Direction 90, the Australian community would expect that the Applicant should not continue to hold a visa on account of his violent offending and infliction of harm.  Any higher level of tolerance the community may have had for the Applicant’s conduct is mitigated by his failure to take advantage of the non-custodial sentences handed to him, as well as the harm caused to the victims of his offending.”

    [53] Exhibit R1, paragraph [58].

13. The Applicant has made no submissions in response to these considerations.

14. In relation to the particular matters specified in paragraph 8.4(2) of the Ministerial Direction, the Tribunal observes the following:

    a)        acts of family violence

15. This consideration does not arise in this instance.

    b)forced marriage

16. There is no evidence, nor any suggestion, of matters as raised in paragraph 8.4(2)(b) being relevant in the case of the Applicant.

    c)commission of serious crimes against women, children or other vulnerable members of the community

17. There is evidence of the Applicant having perpetrated random acts of violence against female victims, during the Hyde Park Robbery.  This is a matter now relevant for consideration because of paragraph 8.4(2)(c) in the Ministerial Direction.

    d)commission of crimes against government representatives or other officials

18. There is evidence, of the Applicant having violently assaulted police officers in the execution of their duty, such that this does now become a further relevant consideration for the Tribunal, because of paragraph 8.4(2)(d) in the Ministerial Direction.

    e)involvement in human trafficking or people smuggling, or in crimes that are of a serious international concern

19. There is no evidence, nor any suggestion, of matters as raised in paragraph 8.4(2)(e) being relevant in the case of the Applicant.

    f)involvement in worker exploitation.

20. There is no evidence, nor any suggestion, of matters as raised in paragraph 8.4(2)(f) being relevant in the case of the Applicant.

    Conclusion: Primary Consideration 4

21. The Tribunal concludes that Primary Consideration 4 weighs very heavily against revocation of the visa cancellation decision.

    OTHER CONSIDERATIONS

22. Of the various other considerations listed in Paragraph 9(1) of the Ministerial Direction, only (b) (extent of impediments if removed), and (d), (links to the Australian community) are here relevant.

    (b)      Extent of Impediments if Removed

23. As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decisionmaker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    a)the non-citizen’s age and health;

    b)whether there are any substantial language or cultural barriers; and

    c)any social, medical and/or economic support available to that non-citizen in that country.

24. The Applicant is aged 21 and is in generally good physical health. There is no suggestion of any substantial language or cultural barriers for the Applicant, if mandatorily deported to the country of his birth.  The social, medical, and economic supports that will be available to the Applicant in New Zealand will be the same as those that are available for other New Zealand citizens, and are of a very good standard.

25. In his personal particulars form, the Applicant complains that in relation to the prospects of his deportation to New Zealand, he will have “no where to live, no friends, family or support.  No employment opportunity – don’t know anyone and haven’t worked in NZ before”.[54]

    [54] G Documents, p. 76.

26. In relation to each of these concerns it may be observed as follows:

    ·The Applicant is young, and is in generally good physical health.

    ·The Applicant appears capable of working in manual labour roles.

    ·The Applicant’s brother is also to be deported, and there are prospects of other family members also joining them in New Zealand;

    ·The Applicant will have the same social welfare entitlements as do all other New Zealand citizens.

27. Overall, the extent of impediments that the Applicant may face in the event that he were to be mandatorily deported to New Zealand, are apt to be of short-term duration only; such that this ‘other consideration’ now weighs only marginally in favour of revocation of the cancellation decision.

    (d)      Links to the Australian Community

28. In consideration of this Other Consideration (d), paragraph 9.4 of the Ministerial Direction requires that decision makers must have regard to the following two factors, as set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:

    9.4.1    The strength, nature, and duration of ties to Australia

29. In the event of non-revocation of the visa cancellation decision, such that the Applicant were to be deported, the decision would have an impact on those minor children already discussed in preceding parts of these reasons for decision as well as three adult siblings and the Applicant’s parents, the Applicant’s girlfriend, and other more extended family members who are resident in Australia.  In this regard, the Tribunal notes the letters of support written by members of the Applicant’s family, including his mother and father, who separately raise the concern of their family being torn apart because of the need felt by the Applicant’s mother for her needing to return to New Zealand to look after the Applicant, and also his brother who is also to be deported.

30. The Applicant is now aged 21 years and has been in Australia continuously since his first arrival in 2008, when just eight years of age. The Applicant has undertaken virtually all of his education in Australia.  Although time spent in Australia is a consideration that the Tribunal must have in regard (Ministerial Direction paragraph 9.4.1(2)(a)), the Respondent submits[55] that less weight should be attributed to this factor because:

    a.The Applicant’s offending commenced when he was just 14 years of age and has continued with regularity thereafter;

    b.There is no evidence before the Tribunal to demonstrate that the Applicant has made any positive contributions to the Australian community that may be said to mitigate the substantial detriment caused by his serious offending.

    [55] Exhibit R1, paragraph [73].

31. The Tribunal does attach weight to the fact of the Applicant having been in Australia since he was eight years of age.  Overall, the strength, nature and duration of the Applicant’s ties to the Australian community are factors in favour of revocation yet the weight that now attaches to this other consideration is only moderate.

    9.4.2    The impact on Australian business interests.

32. Generally, this consideration will only be given weight where the decision would significantly compromise the delivery of a major project or the delivery of an important service in Australia.

33. Accordingly, only neutral weight attaches to the Tribunal’s deliberations because of this factor.

    Findings: Other Considerations

34. The application of the Other Considerations in the present matter can be summarised as follows:

    ·international non-refoulement obligations: Not applicable, thus neutral weight.

    ·extent of impediments if removed: This other consideration weighs only marginally in favour of revocation of the cancellation decision.

    ·impact on victims: Not applicable, thus neutral weight.

    ·links to the Australian community:

    ostrength, nature, and duration of ties to Australia: This other consideration lends only moderate weight in favour of revocation of the cancellation decision

    othe impact on Australian business interests: Neutral weight in favour of revocation of the visa cancellation decision arises because of this other consideration.

    CONCLUSION

35. The Tribunal is required to weigh all of the Considerations, in accordance with the Ministerial Direction:

    ·Primary Consideration 1: such a substantial measure of weight against revocation so as to be determinative;

    ·Primary Consideration 2: neutral measure of weight;

    ·Primary Consideration 3: a limited measure of weight in favour of revocation;

    ·Primary Consideration 4: a heavy measure of weight against revocation;

    ·Extent of Impediments: a marginal measure of weight in favour of revocation;

    ·Links to the Australian community: a moderate measure of weight in favour of revocation.

36. The Tribunal concludes that a holistic application of the considerations in the Direction to the evidence therefore favours non-revocation of the mandatory cancellation of the Applicant’s visa.

    DECISION

37. The decision under review is affirmed.

I certify that the preceding 132 (one hundred and thirty-two) paragraphs are a true copy of the reasons for the decision herein of Member McLean Williams

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

Associate

Dated:   5 July 2021

Date of hearing:

18 May 2021

Applicant:

Self-represented (via video link)

Solicitor for the Respondent:

Cormac Burke (via video link)

Sparke Helmore

Annexure A – Decision dated 1 JUNE 2021

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL No: 2021/1486 General Division
Re:	BMGT Applicant
And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs	Respondent

DECISION

TRIBUNAL:	Member Andrew McLean Williams
DATE:	1 June 2021
PLACE:	Brisbane

DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 26 October 2020 to not revoke the cancellation of the Applicant’s visa.

The Tribunal will give written reasons for this decision within a reasonable time of the decision.

....................................[sgd]..........................
Member Andrew McLean Williams

ANNEXURE B - EXHIBIT REGISTER

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
G1	G Documents (pages 1 to 109)	-	23 March 2021
R1	Respondent’s Statement of Facts, Issues and Contentions (pages 1 to 19)	7 May 2021	7 May 2021
R2	Respondent’s Tender Bundle (pages 1 to 257)	-	7 May 2021
R3	CCTV footage produced under summons by the NSW police	-	11 May 2021
A1	Letter of support from Applicant's younger brother (one page)	Undated	11 May 2021
A2	Letter of support from Applicant's mother (one page)	Undated	11 May 2021
A3	Letter of support from Applicant's brother-in-law (one page)	Undated	11 May 2021
A4	Letter of support from Applicant's older sister (three pages)	Undated	11 May 2021
A5	Letter of support from Applicant's eldest sister (two pages)	Undated	11 May 2021
A6	Letter of support from Applicant's father (two pages)	Undated	11 May 2021
A7	Character reference from Applicant’s friend via email	12 May 2021	12 May 2021