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

Bourhas and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4436 (30 November 2021)
Division:GENERAL DIVISION
File Number: 2020/0589
Re:Nikolaos Bourhas
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member A Poljak
Date:30 November 2021
Place:Sydney

The decision under review is affirmed.
.................................[sgd].......................................
Senior Member A Poljak
CATCHWORDS
MIGRATION – non-revocation of mandatory cancellation of Special Category (Class TY) (Subclass 444) visa – citizen of New Zealand – where applicant has since returned to New Zealand – where visa mandatorily cancelled under s 501(3A) because applicant did not pass character test – substantial criminal record – aggravated robbery – whether there is another reason why the original decision should be revoked – Direction No. 90 – primary considerations – protection of the Australian community – expectations of the Australian community – other considerations – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 501, 501CA
SECONDARY MATERIALS
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
Senior Member A Poljak
30 November 2021

Mr Bourhas, the applicant, is a citizen of New Zealand. The applicant initially lived in Australia for three years during his early childhood, before returning to New Zealand. He commenced living in Australia when he was 19 years old and resided in Australia until 5 September 2019, when he returned to New Zealand.
The applicant's criminal history commences from 2009, when he was 20 years old. Between 2 August 2011 and 20 July 2017, the applicant was convicted of a significant number of offences. Significantly, on 20 July 2017, the applicant was sentenced in the Supreme Court of the Northern Territory to five years imprisonment (with a non-parole period of two years six months) for the offence of aggravated robbery.
On 11 September 2018, following the conviction recorded on 20 July 2017, the applicant's visa was mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) (visa cancellation). This was on the basis that the delegate found that the applicant did not pass the character test, as he had been sentenced to a period of five years' imprisonment for the offence of aggravated robbery.
On 4 October 2018, the applicant provided evidence and representations to the Minister seeking revocation of the visa cancellation.
On 23 December 2019, a delegate of the Minister decided, pursuant to subsection 501CA(4) of the Act, not to revoke a decision made on 11 September 2018 to cancel the applicant's Special Category (Class TY) (Subclass 444) visa (the visa) under subsection 501(3A) of the Act. This is the decision under review in these proceedings (decision under review).
Issues
For the purposes of paragraph 501(6)(a), the applicant has a substantial criminal record under paragraph 501(7)(c) of the Act, having been sentenced to a term of imprisonment of 12 months or more.
The sole issue is for determination is whether there is another reason why the visa cancellation should be revoked, under subparagraph 501CA(4)(b)(ii) of the Act.
Relevant Legislative Provisions
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 that the person does not pass the character test because of the operation of paragraphs 501(6)(a) and (7)(c).
Subsection 501(6) defines the character test. Relevantly, a person does not pass the character test if the person has a “substantial criminal record” as defined by subsection 501(7). Paragraph 501(7)(c) provides 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.
Subsection 501CA(4) of the Act provides that the Minister may revoke the original decision if the Minister is satisfied that the person passes the character test as defined by section 501; or that there is another reason why the original decision should be revoked. This is a discretionary power.
A decision under subsection 501CA(4) of the Act involves an assessment and evaluation of the factors for and against revoking the mandatory cancellation decision. A determination under subsection 501CA(4) must be carried out in accordance with any written directions given by the Minister under the Act: subsection 499(2A).
In considering whether to exercise the discretion in subsection 501CA(4) of the Act, the Tribunal is required by subsection 499(2A) of the Act to have regard to the Minister’s Direction relevant to section 501CA, Direction No. 90—Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90).
The preamble to Direction 90 provides a framework for the guidance of decision-makers. Paragraph 5.1 comprises a statement of objectives. Paragraph 5.2 sets out 'Principles' that should inform the decision-makers exercise of discretion:
(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 measureable 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.
Paragraph 6 guides decision-makers as to the exercise of the visa cancellation, refusal or revocation discretion. Relevantly in relation to considering revocation of a mandatory cancellation, it provides:
(1) 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.
Paragraph 7 of Direction 90 states that decision-makers must take into account the primary and other considerations relevant to the individual case. Generally, primary considerations should be given greater weight than the other considerations: paragraph 7(2).
Paragraph 8 of Direction 90 identifies the four 'Primary considerations', which the Tribunal must consider in determining a revocation request. They are (paragraph 8(1)-(4)):
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the best interests of minor children in Australia; and
(d)expectations of the Australian community.
Paragraph 9 identifies other considerations which must be taken into account. Those other considerations listed are non-exhaustive, and are as follows (paragraph 9(1)):
(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.
(ii)impact on Australian business interests.
Protection of the Australian community from criminal or other serious conduct
The Tribunal must have regard as a primary consideration to the protection of the Australian community from criminal or other serious conduct. In this respect, paragraph 8.1(1) of Direction 90 states as follows:
When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of Direction 90 provides that decision-makers should also give consideration to:
(a) the nature and seriousness of the non-citizen’s conduct to date; and
(b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the applicant's conduct
With respect to the nature and seriousness of the applicant's conduct, factors to be taken into account as relevant are set out in paragraph 8.1.1(1) of Direction 90. Paragraph 8.1.1(1)(a)(i) of Direction 90 states that, without limiting the range of offences that may be considered very serious, violent crimes are viewed very seriously.
The applicant’s criminal record shows that between 2 August 2011 and 20 July 2017, the applicant has been convicted of a significant number of offences, including drink driving (three charges); driving while Disqualified/Suspended (three charges); False Name (Suspect); Reckless Driving – Dangerous to Public or Person (to escape pursuit); Failed to stop when called upon to do so – circumstances of aggravation; and Possess a Prohibited Drug (Cannabis).
The most recent offences committed by the applicant are violent in nature and are within the category of offences that may be considered to be very serious. On 27 April 2017, the applicant was convicted of the offence of aggravated assault, for which he was sentenced to one day's imprisonment. As previously noted, on 20 July 2017, the applicant was sentenced in the Supreme Court of the Northern Territory to five years imprisonment (with a non-parole period of two years six months) for aggravated robbery.
In sentencing remarks for the charge of aggravated robbery, her Honour, Justice Kelly, noted that robbery was a serious offence, and that the applicant's offence was made worse by the fact that he caused harm to the victim. Further, her Honour noted that it was a particularly blatant example of the violent robbery of a complete stranger out in the open on a public street, that the applicant went ahead with the robbery after his co-offender said no, and that he persisted to the point of inflicting considerable violence and injury on the victim when he tried to get his money back. She noted that in the course of the robbery, the victim had sustained numerous abrasions to his arms, legs, back and face, as well as a severely swollen elbow. The elbow, at the time of the plea, had yet to heal and was likely to require surgery.
The seriousness of the applicant’s conduct is reinforced by the sentences imposed on him. Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved.
In addition, the Tribunal considers the frequency of the applicant's offending to be serious, particularly noting there appears to be a trend of increasing seriousness. The applicant has a criminal record from 2009, commencing with mostly minor drug and driving offences before escalating to two serious violent offences in 2017 resulting in a significant term of imprisonment. This demonstrates a trend of increasing seriousness.
The cumulative effect of the applicant's offences also suggests that the applicant is a repeat offender who has consistently demonstrated disregard to Australian laws and court orders: see paragraph 8.1.1(e) of Direction 90.
For these reasons, the applicant's conduct is viewed very seriously, and this consideration weighs heavily against revocation.
Risk of Reoffending
In the Northern Territory Government Institutional Report for Parole Board Report dated 9 May 2019, it states:
“[The applicant] was recommended for the Intensive Alcohol and Other Drug Program (IADP) which he is expected to complete the program in May 2019. An Exit Report will be available for the Parole Board’s perusal for the August 2019 meeting. He also self-requested to participate in the Safe Sober Strong (SSS) Program which he did not complete. Program Facilitators advised that he “Did not attend any session and when called up. He said that he did not want to do the program but refused to sign the withdraw form.”
The Northern Territory Government Intensive Alcohol and Drug Program Participation Summary dated 26 June 2019, summarised the applicant’s participation in the Intensive Alcohol and Drug Program (IADP) at the Darwin Correctional Centre. The applicant attended 24 session of 26 sessions until 20 June 2019. It was noted that the applicant’s “connection between his Alcohol and Drug use and offending, was apparent”. By the end of the IADP, it was recorded that the applicant, “lapsed less and increasing his personal responsibility for his offences”. Following the completion of the IADP, no further treatment recommendations were outstanding. The applicant completed IADP on 20 June 2019.
In evidence are a few character references from September and October 2018, provided to the Department prior to his release from prison. They speak of the applicant’s desire to remain in Australia and the impact his time in prison has had on him. The references also comment on the applicant’s plans for the future and desire to better himself.
At the date of hearing, the applicant was living in New Zealand with family. He said he no longer drank alcohol, was wiser and more mature. The applicant further said that he now has different priorities and has a strong desire to be successful and be a better person. The applicant stated that since his arrival back in New Zealand on 5 September 2019, he had not committed any further offences.
While it appears that the applicant has been making positive efforts to reform, aspects of the applicant’s evidence in these proceedings demonstrate an attempt to diminish the seriousness of his offending conduct and demonstrates a lack of insight. This failure to accept the seriousness of his past actions contributes to a likelihood that he may engage in similar conduct in the future.
Specifically, in his personal statement, the applicant stated:
Contrary to the Judges remarks I never laid a finger on my victim…
…a prison guard who used to work as a bouncer in town who remembered me said that guy was well known for taking large sums of cash to town to seduce women, and that he had told him on numerous occasions to put his money away before he gets robbed. Now this is no way an excuse for my actions but I feel it does somewhat go to show a level of provocation… [underlining added]
Regarding the sentence, the applicant said:
The Judge and the prosecutor can throw around opinions but they are not entitled to their own facts. To them I was just another trouble making kiwi in Darwin that they would have loved to have got rid of.
The facts are I had the most notoriously harsh Judge in the Northern Territory and a Barrister that failed to represent me… [underlining added]
Regarding his offending behaviour, the applicant said that he now understands the dangers associated with drink driving and that the offences occurred in his youth. He said there was no pre-thought to the offence of aggravated robbery, that it was a random act without the intention to rob. Despite entering a plea of guilty, he said he did not agree with some of the facts and tried to contest them with his lawyer. At hearing, the applicant again made submissions that his sentence for aggravated robbery was too harsh and that the sentencing Judge used him as a deterrent.
I also note that in sentencing remarks, Justice Kelly said the applicant had initially denied knowing where the money was and that she did not consider that the applicant was remorseful because he had not given the money back or made an effort to repay the victim.
At hearing, the applicant explained that he had been referred to a psychiatrist for assessment and to obtain a report assessing his criminality and risk of reoffending. The assessment however never took place. While I accept that the applicant has undertaken the IADP course, these efforts at rehabilitation have been untested in the Australian community, away from the support network provided by his parents and extended family in New Zealand.
Considering the totality of the applicant's criminal history, I find that there is a risk that the applicant may reoffend. Of concern is that the applicant’s most recent convictions were of a violent nature and as such, any risk is significant and could involve significant physical, financial and psychological harm to members of the Australian community.
The best interests of minor children in Australia affected by the decision
The applicant has not made any claims with respect to minor children in Australia affected by the decision.
The expectations of the Australian community
Paragraph 8.4 provides:
(1) 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.
The Principles in paragraph 5.2 of the Direction are relevant, including the following:
(a) 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 (5.2(2));
(b) the Australian community expects the Australian Government to cancel the visas of non-citizens who commit serious crimes (paragraph 5.2(3));
(c) a higher degree of tolerance of criminal or other serious conduct may be afforded to a non-citizen who has lived in the Australian community for most of their life, or from a very young age (paragraph 5.2(4)); and
(d) in some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any similar conduct in the future is unacceptable, and even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa (paragraph 5.2(5)).

The applicant spent time in Australia as a child, however, most of his formative years were spent in New Zealand. It is acknowledged that the applicant has been in employment for much of his life in Australia. There may therefore be a somewhat higher tolerance of his conduct compared to a person who has lived in Australia only briefly. However, it is significant that it was within a short period of time since the applicant started residing in Australia at the age of 19, that he started criminally offending.
The applicant has committed several serious offences including an offence of a violent nature. His criminal history discloses a record of ongoing, and escalating, offending over several years. He plainly has not met the expectations of the Australian community that as a non-citizen he will obey the laws of this country. Having regard to the nature and seriousness of the applicant’s offending, and in accordance with the Principles contained in paragraph 5.2 of Direction No. 90, I am satisfied that the Australian community would expect that the applicant should not hold a visa. This primary consideration weighs heavily against revocation of the mandatory cancellation decision.
Other Considerations
Other considerations are set out in Direction 90, at paragraph 9(1). The applicant has not made any claims in relation to non-refoulement obligations, nor is there any evidence of any relevant impact on the victim or Australian business interests. As such, the considerations that are relevant in this case are: the strength, nature and duration of the applicant's ties to Australia; and the extent of impediments if removed.
Strength, nature and duration of ties
Paragraph 9.4.1(1) of the Direction requires that, in assessing this consideration, decision-makers must have regard to:
(a) how long the non-citizen has resided in Australia, including whether the non-citizen has arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b) 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.
As noted above, the applicant commenced living in Australia as an infant and returned to New Zealand aged four. He commenced living in Australia as an adult at the age of 19, although he has made some trips outside Australia since commencing to live here.
The applicant's brother resides in Australia and the applicant has social connections in Australia. In these proceedings the applicant provided a statement from his close friend, Shannon Waerea, dated 24 August 2020. Mr Waerea expressed how devastating it was for himself and others that the applicant was deported to New Zealand and that “in these unprecedented times the isolation felt is multiplied”.
While I do accept the applicant’s separation from his brother and friends in Australia may be difficult, it would not be permanent in the sense that there are no restrictions, other than perhaps financial and current (temporary) travel restrictions, preventing them from visiting the applicant in New Zealand in the future. They may also maintain contact via telephone, video and other electronic means.
The applicant’s strength, nature and duration of ties to Australia favours revocation of the mandatory cancellation decision. However, the applicant started offending soon after arriving in Australia. He arrived in Australia at the age of 19, and his criminal record commenced at the age of 20. Accordingly, this consideration does not attract significant weight and that it does not outweigh the primary considerations of the protection of the Australian community and the expectations of the Australian community, which weigh heavily in favour of non-revocation of the cancellation decision.
Extent of impediments if removed from Australia
The Direction provides, at paragraph 9.2, that:
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) the non-citizen’s age and health;
(b) whether there are substantial language or cultural barriers; and
(c) any social, medical and/or economic support available to them in that country.
The applicant is an adult and is apparently in good health generally. There is also some suggestion of the applicant having mental health difficulties, although the evidence in relation to this is quite sparse.
There are no evident language or cultural barriers for the applicant in New Zealand, given its broad social, political, and economic similarity to Australia. There is nothing to suggest that the applicant would not have available to him in New Zealand the equivalent social, medical or economic support available to other citizens. Further, the applicant's parents and extended family reside in New Zealand.
In circumstances where the applicant has already returned to New Zealand and has been residing there for some time, this consideration attracts only minimal, if any, weight in the applicant's favour.
Decision
The primary considerations of the protection of the Australian community and the expectations of the Australian community weigh heavily in favour of not revoking the visa cancellation decision. The other relevant considerations, namely the extent of impediments if removed and the strength, nature and duration of ties to Australia, do not outweigh the primary considerations in this case.
The decision under review is affirmed.

I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

...............................[sgd].........................................
Associate
Dated: 30 November 2021

Date of hearing: 26 April 2021

Applicant: Self-represented

Solicitors for the Respondent: Ms J Strugnell, MinterEllison

[2021] AATA 4436

30 November 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Standing

Date of hearing:	26 April 2021
Applicant:	Self-represented
Solicitors for the Respondent:	Ms J Strugnell, MinterEllison