BPWZ and Minister for Immigration and Border Protection (Migration)

[2016] AATA 557

BPWZ and Minister for Immigration and Border Protection (Migration) [2016] AATA 557 (1 August 2016)

Division	GENERAL DIVISION
File Number(s)	2016/0595
Re	BPWZ
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Senior Member CR Walsh
Date	1 August 2016
Place	Perth

The decision under review is set aside. The Tribunal decides in substitution that the mandatory cancellation of the Applicant’s visa should be revoked pursuant to s 501CA(4) of the Migration Act 1958.

............[Sgd]............................................................

Senior Member CR Walsh

CATCHWORDS

MIGRATION – mandatory visa cancellation – applicant fails character tests as he has a substantial criminal record – applicant serving prison sentence of 12 months or more – whether there is another reason why mandatory visa cancellation should be revoked – Practice Direction No 65 – primary considerations considered – other relevant considerations considered – decision under review set aside and substituted

LEGISLATION

Migration Act 1958 – s 501(3A) – s 501(6)(a) – s 501(7)(c) - s 501CA(4)

SECONDARY MATERIALS

Direction No 65 – Migration Act 1958 - Direction under section 499 - “Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA”

REASONS FOR DECISION

Senior Member CR Walsh

1 August 2016

INTRODUCTION

1. BPWZ (presently 33 years old) was born on 8 October 1982 in Somalia.  While he was growing up he witnessed violence due to the civil war.  When he was eight years old, BPWZ witnessed the assassination of his father in Somalia.  BPWZ and his family then fled to neighbouring Kenya, and after being found to be refugees by the UNHCR, BPWZ and his family were relocated to New Zealand and later became New Zealand citizens.  BPWZ completed Year 12 in New Zealand.

2. BPWZ arrived in Australia on 5 August 2005 (aged 22 years) as the holder of a Class TY Subclass 444 Special Category (Temporary) visa, having moved to Australia with his mother and eight of his nine brothers and his three sisters. One of BPWZ’s brothers remained in New Zealand.  All of BPWZ’s extended family (except for the one brother just mentioned) currently live in either Melbourne or Perth.

3. On 23 February 2015, BPWZ’s visa was cancelled by a delegate of the Minister under the mandatory cancellation power in s 501(3A) of the Migration Act 1958 (Migration Act) because BPWZ did not pass the character test as he had a substantial criminal record having been sentenced to a term of imprisonment of 12 months or more.  That is, on 26 August 2013, BPWZ was convicted of armed robbery and sentenced to 42 months imprisonment.

4. On 6 March 2015, BPWZ lodged a “Request for Revocation of a Mandatory Visa Cancellation Under s 501(3A)” with the Department of Immigration and Border Protection (Department).

5. On 4 July 2015 and on 5 January 2016, Ms Alexandra Jannetto, Senior Lawyer, Migration, Victoria Legal Aid, wrote to the Department providing submissions in support of BPWZ’s revocation request.  In an undated letter to the Department, BPWZ also provided submissions in support of his request for a revocation of the mandatory visa cancellation decision. 

6. On 1 February 2016, a delegate of the Minister notified BPWZ of her decision not to revoke the mandatory cancellation of BPWZ’s visa under s 501CA(4) of the Migration Act. In the enclosed “Statement of Reasons for Decision”, dated 25 January 2016, the delegate of the Minister concludes:

   73.…I was not satisfied that BPWZ passes the character test (as defined in section 501).

   74.In considering whether I was satisfied that there is another reason why the decision to cancel BPWZ’s visa should be revoked, I gave significant weight to the very serious nature of the crimes committed by BPWZ, that of armed robbery, threat to kill and false imprisonment and find that BPWZ should expect to forfeit the privilege of remaining in Australia.

   75.I also find that the Australian community could be exposed to great harm should BPWZ reoffend in a similar fashion.  I could not rule out the possibility of further offending by BPWZ.  The Australian community should not tolerate any further risk of harm.

   76.Given the crimes committed by BPWZ, I am of the view that the Australian community would expect that BPWZ’s visa would remain cancelled and I would not revoke the mandatory cancellation decision.

   77.I find the above outweighed any countervailing considerations in BPWZ’s case including his 10 years residence in Australia, his history as a refugee from Somalia, his employment and family ties to Australia.  I gave weight to the emotional hardship his family members will suffer and the effect of return to New Zealand upon BPWZ.

   78.I have considered the best interests of BPWZ’s children as a primary consideration and have found that their best interests would be best served by the revocation of the mandatory visa cancellation decision.

   79.I am cognisant that where great harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the decision to cancel the visa.

   80.In reaching my decision I conclude that BPWZ represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his children as a primary consideration, and any countervailing considerations as described above.

   81.Having given full consideration to all these matters, I have decided that I am not satisfied that there is another reason why the original decision to cancel BPWZ’s Class TY Subclass 444, Special category (Temporary) visa should be revoked as required by s 501CA(4)(b)(ii).

7. On 4 February 2016, BPWZ applied to the Tribunal for a review of the mandatory cancellation decision.

CONSIDERATION

The character test

1. Section 501(3A) of the Migration Act provides that the Minister must cancel a visa that has been granted to a person if:

   (a)the Minister is satisfied that the person does not pass the character test because of the operation of:

   (i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

   ii)paragraph (6)(e) (sexually based offences involving a child); and

   (b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

2. Section 501(6) of the Migration Act provides that a person does not pass the character test if:

   (a)the person has a substantial criminal record (as defined by subsection (7)).

3. Section 501(7) of the Migration Act relevantly provides:

   (7)For the purposes of the character test, a person has a substantial criminal record if:

   ………..

   (c)       the person has been sentenced to a term of imprisonment of   12 months or more.

4. BPWZ’s Australian criminal history is set out in the table below[1].

   [1] BPWZ does not have any criminal convictions from New Zealand, although he does have a fines warrant for $7,559.00 in relation to accumulated unpaid traffic fines.  However, BPWZ maintains that these fines relate to traffic offences committed in New Zealand by BPWZ’s younger brother, using BPWZ’s drivers licence and that BPWZ is currently challenging these unpaid fines through his legal representative.

Court	Court Date	Charges	Result
Melbourne County Court	28 May 2014	Theft Theft of a motor vehicle Criminal damage (intent damage/destroy) Obtain property by deception (3 charges)	Imprisonment aggregate 12 months
Melbourne Magistrates Court	4 February 2014	Recklessly cause injury Fail to answer Bail Granted	Without conviction. Fined aggregate $750
Melbourne County Court	26 August 2013	Armed Robbery	Imprisonment 42 months
Melbourne County Court	26 August 2013	Make threat to kill	Imprisonment 12 months, 10 months concurrent
Melbourne County Court	26 August 2013	False imprisonment (common law)	Imprisonment 6 months, 5 months concurrent
Melbourne County Court	26 August 2013	Obtain property by deception (2 charges)	Fined aggregate $500
Melbourne County Court	26 August 2013	Fail to answer Bail Granted	Convicted and fined $250.00

1. All of the above convictions relate to one night of offending by BPWZ (being 30 December 2011) but not all of the offences were dealt with in the same court at the same time.

2. As a consequence of receiving a sentence in excess of 12 months, BPWZ is deemed pursuant to s 501(7)(c) of the Migration Act to have a “substantial criminal record” and therefore, pursuant to s 501(6) of the Migration Act, he does not pass the character test. As BPWZ was serving a sentence of imprisonment, on a full-time basis, in a custodial institution the Minister was required to cancel his visa pursuant to s 501(3A) of the Act.

Revocation of mandatory visa cancellation decision

1. Section 501CA(4) of the Migration Act provides that the Minister may revoke the original decision if:

   (a)the person makes representations in accordance with the invitations; 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. [Emphasis added]

2. For the above reasons, BPWZ does not pass the character test in s 501 of the Migration Act for the purposes of s 501CA(4)(i) of the Migration Act. Consequently, the Tribunal must next consider whether there is “any other reason” why the Minister’s mandatory visa cancellation decision should be revoked.

3. On 22 December 2014 the Minister, in accordance with his powers under s 499(1) of the Migration Act, issued Direction No 65, titled “Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction No 65). Direction No 65 commenced on 22 December 2014 and is binding on all decision-makers, including the Tribunal, from that date: s 499(2A) of the Migration Act and paragraph 6.1(4) of Direction No 65.

4. Paragraph 6.1 of Direction No 65 states:

   (4)The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act…. [Emphasis added]

5. Paragraph 7(1) of Direction No 65 provides:

   7.           How to exercise the discretion

   (1)Informed by the principles in paragraph 6.3 above, a decision-maker:

   (a)must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or

   (b)must take into account the considerations in Part C, to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.

6. Paragraph 8(1) of Direction No 65 states:

   8.           Taking the relevant considerations in account

   (1)Decision-makers must take into account the primary and other considerations relevant to the individual case.  There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or to revoke the mandatory cancellation of a visa.  These different considerations are articulated in Parts A, B and C…

7. Paragraph 13(2) of Part C of Direction No 65 sets out the primary considerations that a decision-maker must take into account in relation to revocation requests, as follows:

   13.         Primary considerations – revocation requests

   …

   (2)In deciding whether to revoke the cancellation of a non-citizen’s visa, the following are primary considerations:

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

   (b)       The best interest of minor children in Australia;

   (c)       Expectations of the Australian community.

8. Due consideration is to be given to the “General Guidance” and “Principles” set out in paragraph 6 of Direction No 65, titled “Preamble”.  In particular, paragraphs 6.2(1), 6.3(2) 6.3(3), 6.3(3), 6.3(4), 6.3(5) and 6.3(7) provide that:

   6.2         General Guidance

   (1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

   ....

   6.3         Principles

   (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 Australian confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

   (2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

   (3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

   (4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

   (5)Australia has a low tolerance of any criminal or other serious conduct or people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

   ...

   (7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

1. Protection of the Australian Community

1. The first primary consideration is protecting of the Australian Community from criminal or other serious conduct. Paragraph 13.1(1) of Part C of Direction No 65 provides:

   (1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.  Remaining in Australia is a privilege that Australia confers on 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… [Emphasis added]

2. Paragraph 13.1(2) of Direction No 65 states:

   (2)         Decision-makers should also give consideration to:

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

   (b)The risk to the Australian community should the person commit further offences or engage in other serious conduct. [Emphasis added]

(a)       Nature and seriousness of the conduct

1. Paragraph 13.1.1(1) of Direction No 65 states:

   13.1.1     The nature and seriousness of the conduct

   (1)In considering the nature and seriousness of the person’s criminal offending or other conduct to date, decision-makers must have regard to factors including:

   (a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

   (b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

   (c)The sentence imposed by the courts for a crime or crimes;

   (d)The frequency of the person’s offending and whether there is any trend of increasing seriousness;

   (e)       The cumulative effect of repeat offending;

   …

   (h)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.

2. There is no doubt BPWZ’s criminal conduct was “serious” of the type identified in Direction No 65, being offences involving significant violence against another individual.  In summary, on 30 December 2011, BPWZ and a co-offender, FFGG, confronted a taxi driver, Mr Singh, with a knife and made demands to rob him.  They stole the victim’s wallet while searching the taxi and later used his credit card.  While BPWZ was searching the taxi, the victim ran away.  BPWZ chased after him and caught him.  He tied his belt around the victim’s neck and dragged him back to the taxi.  This conduct amounted to the false imprisonment.  Both offenders told the taxi driver that if he tried to run again he would be killed.   This was the basis of the charge of threat to kill.

3. The facts of BPWZ’s offences are set out in the sentencing remarks of Judge Mullaly, as follows:

   3.The jury were satisfied beyond reasonable doubt that on 30 December 2011, in Carlton, you, FFGG, produced a knife to a taxi driver, Mr Singh. You, BPWZ, joined in the making of demands of the driver. What was stolen remains unclear. I will sentence you on the basis that you men stole the taxi driver’s wallet from his car following a search of it. In the end, there can be no doubt about this, because you, BPWZ, used Mr Singh’s credit card some short time later. Your use of the card was the basis of the obtaining property by deception charges.

   4.To return back to the circumstances. When you, BPWZ, were searching the taxi, Mr Singh took the opportunity to run. You, BPWZ, took off after him and caught him, after he had gone only a short distance. You then used your belt, tying it around Mr Singh’s neck, to drag him back to the area of the taxi. This conduct amounted to the false imprisonment. You, FFGG, were complicit in this crime.

   5.When he was brought back, that is Mr Singh was brought back to the taxi, you men told him that if he tried to run again he would be killed. This was the basis of the charge of threat to kill.

4. In considering the seriousness of the offences Judge Mullaly noted the following:

   6.These offences are plainly serious. The whole experience was frightening for Mr Singh. The use of the belt was degrading. The threat in all the circumstances was chilling. Taxi drivers are entitled to get through a shift without confronting a knife, being robbed of their valuables and subjected to violence. The courts must deal with the perpetrators sternly so as to properly punish them and deter others. [Emphasis added]

1. However, BPWZ’s offending should be considered in the context of both BPWZ’s personal background and the particular circumstances of the offending itself.

2. In sentencing, Judge Mullaly described BPWZ’s personal background as follows:

   7….you witnessed violence in your native Somalia.  This included the assassination of your father when you were about eight years old.  Understandably, this has had a significant effect upon you.  You and your family fled to Kenya and from there you were settled in New Zealand.  You attended school there and did well, completing the equivalent of Year 12.  You moved to Australia with other members of your family when you were about 18 or 19.  A number of your siblings have settled in Western Australia.  Your mother and your sister, GGHH, settled in Melbourne, as you did.

3. As previously stated, BPWZ arrived in Australia in August 2005 (aged 22) and he subsequently married and had two daughters.  Prior to BPWZ’s offending on 30 December 2011 (then aged 29), was not involved in any criminal offending.  That is, BPWZ lived in Australia for six years without incident and it has now been four and a half years since BPWZ’s offending.

4. In relation to the particular circumstances of the offending, BPWZ’s co-accused, FFGG, initiated the armed robbery by producing a knife.  The offending was brief, spontaneous, and opportunistic and alcohol was involved.  Judge Mullaly stated (at [15]) that “alcohol was a key factor in this offending” and noted (at [8]) that BPWZ’s response to the breakdown of his relationship in 2010 “was by taking to alcohol by way of binge drinking”.  The evidence of BPWZ was that the offending occurred during an eight day period when BPWZ was using alcohol heavily in response to his marriage breakdown.  In his evidence before the Tribunal, BPWZ said that following his marriage breakdown he felt anxious and depressed as he wanted to be with his children and to “be the father that he never had”.   BPWZ explained that he had moved in with two “aussie blokes” who drank regularly and that he started drinking to “numb his feelings”.  BPWZ also said that he was too afraid and ashamed to speak out and that he was “bottling things up” and that he was “alive, but in a coma”.

5. Judge Mullaly noted (at [9]) that BPWZ’s sister “gave impressive evidence of the desperate straight [BPWZ] was in and the shame that [BPWZ] had of using alcohol, given [BPWZ’s] cultural standards”.

6. In relation to the sentence, Mullaly J noted (at [19]) that “the prosecution put forward a range from three years up to six years’ imprisonment” and stated:

   20.In order to appropriately punish you, deter … you, and more particularly others, and yet at the same time facilitate your rehabilitation, I must sentence you … to further time in prison. It is a grave step to send young men to gaol but there is no other option. There needs to be some cumulation, but it can, in my view, in all the circumstances, be modest. It will mark the chilling nature of the threat to kill and the degrading aspect of the false imprisonment, but I am mindful that this was one single event. [Emphasis added]

7. The actual sentence given by the sentencing judge, Judge Mullaly, was three years and nine months, with eligibility for parole after two years (which was granted).  Therefore, the sentence imposed by Mullaly J was at the minimum end of the spectrum put forward by the prosecution.

8. Further, although BPWZ’s offences are serious in nature, as acknowledged by Mullaly J (at [20]) they occurred during “one single event” and BPWZ has not been convicted of any crimes before or after this incident.  Although, the Tribunal notes that BPWZ has been charged with common assault since being in detention in relation to an incident involving a detention centre education officer:  refer to paragraphs 51 and 52 below.

(b)      Risk to the Australian community

1. Paragraph 13.1.2(1) of Direction No 65 sets out principles and factors to which decision-makers should and must have regard in assessing whether the non-citizen represents an unacceptable risk of harm to members of the Australian community.  It provides:

   13.1.2The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

   (1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

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

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

   (b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). [Emphasis added]

(a)       Nature of the harm if further criminal conduct

1. A repeat of BPWZ’s offending is clearly unacceptable to the Australian community. 

(b)Likelihood of further criminal or other serious conduct

1. A number of factors point to BPWZ having a low risk of further criminal or other serious conduct.

   Life prior to BPWZ’s offending

2. BPWZ was of good character before his offending on 30 December 2011, which is four and a half years ago when he was aged only 29.  All supporting statements confirm that BPWZ’s offending was out of character, once off and was directly related to the breakdown of his marriage and resulting binge drinking.  Prior to the offence that occurred in late December 2011, BPWZ was an upstanding member of the Australian community.  BPWZ held a full-time job in logistics, paid taxes and was, according to the evidence, considered somewhat of a “legend” in the Somali community in Melbourne.  BPWZ was directly responsible for helping hundreds of Somalian immigrants integrate into Australian life in Melbourne.  Moreover, BPWZ dedicated a lot of his time to anyone he could on a voluntary basis , including in the field of education.  All of this is apparent from the numerous supporting statements provided to the Tribunal and, in particular, those of Mr Liam Monkhouse and Dr Mohamud Sheik.

3. BPWZ’s work history in Australia demonstrates a low risk of him reoffending. BPWZ’s employment history in Australia (prior to his incarceration) is, in summary, as follows:

   ·     From 2005 to 2008 – Despatch operator at Safeway Distribution centre;

   ·     From 2009 to 2011 – Loading hand at Linfox Distribution Centre;

   ·     From 2011 to 2012 – Storeman at Royal Melbourne Hospital; and

   ·     From 2012 to 2012 – Pacific Brand.

4. In this regard, in sentencing, Judge Mullaly noted the following:

   8.You gained work in the warehouse of Logistics Industry.  You formed a relationship and have two children now, six and five years old.  In 2010 the relationship collapsed and there has been a degree of animosity thereafter.  This has resulted in limited contact with your children.  Your response to this was by taking alcohol by way of binge drinking.

   …

   10.You have had a work history that is impressive and overall it seems to me you have good prospects.  Your character up until this matter works in your favour.  As I say, overall, it seems you have reasonable prospects of reform when you are released.  You are now 30 and were 29 at the time of the offence.  As indicated, you have had the benefit of good character up until these offences.

   11.…You have worked for a good deal of the time, though you have been on remand now for 278 days.  I also take into account in your favour, in respect of the obtaining property by deception charges, that you pleaded guilty to them and did so at an early point. [Emphasis added]

   Alcohol abuse and marriage breakdown

5. The evidence before the Tribunal shows that BPWZ’s offending on 30 December 2011 was completely driven by alcohol abuse and the breakdown of his marriage.  Following his marriage breakdown, BPWZ was drinking to excess and, in his own words, he “hit rock bottom”.  Instead of turning to family and friends for support, out of shame he turned to alcohol.  BPWZ described the period of his offending in December 2011 as a “moment of madness”.   Although alcohol and emotional strain is not an excuse for the serious nature of the offending that occurred on 30 December 2011, they go some way to explain it.

   Evidence of reform

6. As stated, BPWZ’s offending took place on 30 December 2011.  It has now been four and a half years since his offending.  BPWZ gave evidence that since that time he has reflected on his offending, he is remorseful of his actions and wants to move forward with his life.  BPWZ gave evidence that if he is able to remain in Australia he has plans to work for his sister and complete his university degree (having already completed two years of a Bachelor of Commerce degree).  BPWZ is taking positive steps “to get on with his life”.

7. BPWZ openly admits and readily admits to his wrongdoing and that he is sorry for his past conduct.  In an undated letter, BPWZ makes the following submissions:

   …I know I’ve made a mistake but up till now it’s been my only mistake and I can assure you that this will not happen again as this was totally out of character for me which I am very remorseful for.  I have always worked paid taxes and been an upright citizen.  I have always been a contributer (sic.) to the community.  I have supported various charity groups and on occasions I give blood to the blood bank.  I am involved with …sports and Arts of Victoria in teaching them football and promoting their creative abilities in the arts i.e. Music and poetry which all helps them to become good citizens which is what I was before this unfortunate incident which god willing will never be repeated again. 

   I would like to state now as god is my judge I have made a personal promise to myself.  I have come to realise on the night of the incident that drink paid a big part in my actions so I have sworn to myself as I swear to you that I will never drink alcohol again coming to jail was the best thing that could have happened to me as it has given me a chance to look back at myself and see myself as I was.  I like to state hear that I was working every hour I could get as a way of earning money so as I could give my family the best life I could what I didn’t relise (sic.) was this was putting strain on me, a strain that in the beginning was relieved by having a few drinks but it was the old story a few drinks lead to a few more and before I relised (sic.) I was drinking all the time which lead (sic.) to the change in my character.  When my family and friends talked to me about my drinking I just blocked it out of my mind and thought they were making a mountain out of a molehill but as I now know they wern’t (sic.) they were right since coming to jail I’ve had the opportunity to do a (sic.) Alcohol and Drug course which has addressed my addictive personality it showed me how to control my erges (sic.) and prevent me from relaps (sic.) it has shown me ways of dealing with stresses such as exercise, talking to family member openly.  I feel as sure as one can be that I am totally rehabilitated.  I look forward to rebuilding all the bridges I’ve burnt behind me it will be a labour of love.  In the reflection of myself I was fairly disgusted at what I saw and I am determined to get my good name back, the good name that I know I am the good name that my family and friends know me to be...[Emphasis added]

8. During the two years he spent in prison, BPWZ completed the following courses:

   ·     24 Hour Drug and Alcohol Treatment Program (Level III) on 23 March 2015;

   ·     Certificate II in Hospitality (Kitchen Operations);

   ·     Certificate II in Cleaning Operations;

   ·     Certificate I in Construction;

   ·     Certificate I in Vocational Preparation; and

   ·     Certificate III in General Education for Adults.

9. It is clear from the numerous letters of support and evidence given by friends and family members that BPWZ’s friends and family remain very committed to and supportive of him.  In particular, BPWZ’s sister, who lives in Perth, gave evidence that if BPWZ is able to remain in Australia he can live with her and work in one of her shops.  This kind of support further reduces any risk of BPWZ reoffending.  BPWZ moved to Australia in August 2005 and has therefore, been living in Australia for almost 11 years.  All of his immediate family (except for one of nine brothers) live in Australia in either Melbourne or Perth, including his two minor daughters who live with their mother (BPWZ’s ex-wife) in Melbourne.  The evidence makes it clear that BPWZ has the entire support network of his family behind him upon his release from detention, thus minimising any risk of recidivism.

10. In an undated letter, BPWZ makes the following submissions:

    I would like to add that all my direct family live hear (sic.) in Australia and if you were to deport me back to New Zealand I wouldn’t have anybody back there.  If I am released back into the Australian society I have all the support of my community and family.  My sister has told me that upon my release that I can come and work for her in one of her shops.

    Minimum prescribed sentence

11. A report from Corrections Victoria records that BPWZ was involved in a number of incidents whilst he was in prison and that he attended a Governor’s Disciplinary Hearing on 11 separate occasions and was involved in 5 incidents involving an assault, 1 positive drug test and 19 other minor incidents affecting good order.  The following table summarises those incidents.

Date	Location	Incident type
07-Dec-2014	Governor’s Disciplinary Hearing
07-Dec-2014	Governor’s Disciplinary Hearing
26-Oct-2014	Port Phillip Prison	Drug Test Result of Positive
26-Oct-2014	Port Phillip Prison	Assault on Pris by Other Pris Level 1
12-Mar-2014	Fulham Correctional Centre	Attempt/threat Assault on Prisoner or Staff
10-Mar-2014	Fulham Correctional Centre	Attempt/threat Assault on Prisoner or Staff
19-Feb-2014	Fulham Correctional Centre	Minor Incidents Affecting Good Order
16-Jan-2014	Fulham Correctional Centre	Minor Incidents Affecting Good Order
15-Jan-2014	Fulham Correctional Centre	Minor Incidents Affecting Good Order
31-Dec-2013	Governor’s Disciplinary Hearing
21-Dec-2013	Fulham Correctional Centre	Minor Incidents Affecting Good Order
16-Dec-2013	Fulham Correctional Centre	Minor Incidents Affecting Good Order
13-Dec-2013	Fulham Correctional Centre	Minor Incidents Affecting Good Order
05-Dec-2013	Port Phillip Prison	Medical Incident- Person Not Hospitalised
20-Oct-2013	Fulham Correctional Centre	Minor Incidents Affecting Good Order
24-Aug-2013	Governor’s Disciplinary Hearing
24-Aug-2013	Governor’s Disciplinary Hearing
21-Aug-2013	Metropolitan Remand Centre	Minor Incidents Affecting Good Order
18-Aug-2013	Governor’s Disciplinary Hearing
17-Aug-2013	Metropolitan Remand Centre	Attempt/threat Assault On Prisoner Or Staff
09-Aug-2013	Metropolitan Remand Centre	Assault on Pris By Other Pris Level 1
07-Aug-2013	Metropolitan Remand Centre	Minor Incidents Affecting Good Order
05-Aug-2013	Metropolitan Remand Centre	Minor Incidents Affecting Good Order
06-July-2013	Governor’s Disciplinary Hearing
03-July-2013	Governor’s Disciplinary Hearing
26-June-2013	Metropolitan Remand Centre	Minor Incident’s Affecting Good Order
23-June-2013	Governor’s Disciplinary Hearing
20-June-2013	Metropolitan Remand Centre	Minor Incidents Affecting Good Order
08-June-2013	Governor’s Disciplinary Hearing
05-June-2013	Metropolitan Remand Centre	Notifiable Incidents Affecting Good Order
31-May-2013	Metropolitan Remand Centre	Minor Incidents Affecting Good Order
30-May-2013	Metropolitan Remand Centre	Minor Incidents Affecting Good Order
05-May-2013	Metropolitan Remand Centre	Accidental Injury-Person Not Hospitalised
03-May-2013	Metropolitan Remand Centre	Alleged Assault On Prisoner By Staff
30-Mar-2013	Metropolitan Remand Centre	Minor Incidents Affecting Good Order
23-Mar-2013	Governor’s Disciplinary
14-Mar-2013	Metropolitan Remand Centre	Minor Incidents Affecting Good Order
23-Jan-2012	Metropolitan Remand Centre	Smoking In Unauthorised Area
20-Jan-2012	Metropolitan remand Centre	Smoking in Unauthorised Area

1. In relation to the above prison incidents, the incidents are classified in very broad (generic) terms with, in most instances, little or no explanation of what actually occurred.  Without further evidence from someone familiar with the inner workings of the prison system and prison rules it is difficult to conclude with any degree of certainty the nature and seriousness of the above incidents.  BPWZ’s evidence was in effect that an incident which may otherwise go unnoticed in the community, outside prison, may be a punishable offence or “incident” in prison (or in immigration detention).  In his oral evidence, BPWZ described prison punishment as “collective” punishment, meaning that you only had to be present at the scene of an incident to be collectively held responsible for it, even if you were not at fault.

2. Whether or not that is so, what is clear in BPWZ’s case is that BPWZ was released from prison on parole after two years, being the minimum prescribed sentence.  Had BPWZ been involved in any serious offending or continued to demonstrate recidivist behaviour whilst in prison it seems unlikely that the Parole Board of Victoria would have released BPWZ after serving the minimum sentence.

   Incidents whilst in detention

3. BPWZ has also been involved in a number of incidents whilst in the Yongah Hill Immigration Detention Centre (IDC). An incident, on 30 June 2015, where BPWZ allegedly spat in an education officer’s (EEFF) face was reported to the Australian Federal Police. BPWZ was initially charged with “Causing harm to a Commonwealth public official” contrary to s 147.1 of the Criminal Code Act 1995 and those proceedings are pending. However, at the hearing BPWZ’s representative advised the Tribunal that this charge has since been downgraded to “Common assault”. The Tribunal has viewed CCTV footage of this incident which, in summary, shows BPWZ arguing with EEFF, the education officer, and spitting in his face.

4. In circumstances where the matter has not yet been determined by the criminal courts, and is pending, the Tribunal makes no finding in relation to this alleged incident.  However, it should be noted that, according to BPWZ’s representative, BPWZ’s charge for “Causing harm to a Commonwealth public official” was downgraded to common assault.

5. Further, an Immigration Management Plan, dated 1 January 2016, records the following:

   BPWZ is very respectful and courteous towards staff and most other detainees. However, on the 31st of December he was involved in an incident in the Blue 2 compound computer room with another detainee and again at midnight on the 31st of December 2015 where he threatened to assault another detainee with a guitar.

6. In his oral evidence before the Tribunal, BPWZ said it was not him holding the guitar but another detainee.  In the absence of further corroborating evidence, the Tribunal places little weight on this incident.

7. A subsequent Immigration Management Plan, dated 29 January 2016, records the following:

   On the evening of 31st January 2016, BPWZ and another particular detainee [name omitted] were sighted by Officers during Blue One Compound Medication Time trying to incite another detainee from the same compound to not take his medication and to cause problems for the Medical Staff.

1. In his oral evidence before the Tribunal, BPWZ explained that he was trying to assist a fellow detainee who was very sick, not treated properly by detention centre staff and urgently needed to go to the hospital.  In the absence of further corroborating evidence, the Tribunal places little weight on this incident.

1. Best interests of minor children in Australia

1. The second primary consideration listed in Direction No 65 is the best interests of any minor children in Australia affected by the decision, and paragraph 13.2(1) requires decision-makers to make a determination about whether the refusal is, or is not, in the best interests of the child.

2. Paragraph 13.2(4) sets out the following factors which must be considered where relevant:

   (a)The nature and duration of the relationship between the child and the person. 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 person 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 person’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 person would have on the child, taking into account the child’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 person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

   (h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the person’s conduct.

3. BPWZ has two minor children who live with their mother (BPWZ’s ex-wife) in Melbourne, Australia and who are Australian citizens, namely DDEE currently aged nine (born on 7 February 2007) and BBCC currently aged eight (born on 18 April 2008).

4. In an undated letter, BPWZ makes the following submissions:

   I have two daughters hear (sic.)….DDEE is 8 years and BBCC is 6 years.  As you can see they are both at the age where they need both of their parents, they were both born hear (sic.) and are both Australian citizens.  I love my daughters very much and if I was deported back to New Zealand it would shatter them and myself and rift would come between us that may never be heald (sic.) this would not be fair on them they deserve to have both their mother and their father to be part of their lives and Australia is famous around the world for giving someone a fair go… [Emphasis added]

5. In his oral evidence, BPWZ said that when he was in prison in Victoria he contacted his daughters as much as possible (generally twice a week), when he was in detention in Christmas Island IDC he was in contact with his daughters about three times a week and that since he has been in detention at Yongah Hill IDC he has been in contact with his daughters everyday by phone or Face book.  BPWZ said that he also sent his daughters letters and cards.  BPWZ explained that his children are the “number one” reason he has stayed in detention and that if he did not have children he would simply return to New Zealand.  BPWZ stated that if he were required to return to Nez Zealand it would have a “big impact” on him and his daughters and that he “has to be in their lives [for] infinity”. 

6. In  a letter of support, dated 20 June 2015, BPWZ’s ex-wife, AABB states:

   …Despite the breakup we remained good friends and our families are our families are still all close and united by DDEE and BBCC, this credit goes to BPWZ’s pleasant and charming personality.

   BPWZ is a great father to his daughters, since he went to prison the kids have missed the opportunity to be with their dad.  I am distressed at the thought of BPWZ having to leave Australia because this means that our kids will grow up without their father.  As BPWZ won’t be allowed back into Australia and me and the kids can’t afford to travel to New Zealand, this would be the end of their relationship.  DDEE and BBCC will be heartbroken and scared for the rest of their lives.

   This is BPWZ’s first offence.  He is not a criminal with a long record, but rather a man who made one mistake and deserves a second chance to be a father to his kids…

7. AABB also gave oral evidence at the hearing by telephone.  AABB described BPWZ as an “excellent father” and said that his daughters “miss him like crazy”.  AABB said that BPWZ contacts his daughters once, if not twice, a day (by phone or Face book) and that he has a close relationship with both of them.  AABB said that if BPWZ is able to remain in Australia, and he lives in Perth, she would make arrangements for her daughters to visit BPWZ in Perth or BPWZ could visit his daughters in Melbourne every school holiday (being about two weeks every ten weeks during the school year as well as during the longer school year break).   In contrast, AABB said that if BPWZ returned to New Zealand it would make “things very hard for me, for all of us” due to the cost of airfares and accommodation and that the children would probably only visit BPWZ in New Zealand “once a year” at best.

8. If BPWZ returns to New Zealand, he will still be able to undertake limited parenting responsibilities. BPWZ will also be able to have contact with his children if his ex-wife decides to travel from Melbourne to New Zealand with the children and by means of electronic communication.  However, this is must be contrasted with BPWZ were able to remain in Australia in which case he would be able to have regular physical contact with his daughters, which is clearly preferable.  Further, there may be difficulties associated with BPWZ travelling from New Zealand to Australia to visit his daughters as BPWZ would be required under Australia law to declare his criminal convictions on his incoming passenger cards and in the absence of a visa will likely be refused entry into Australia.

9. It is apparent from many of the letters of support and evidence provided by BPWZ’s family and friends that BPWZ is a good father and that his daughters would benefit from his direct involvement in their lives following his release from detention.  The evidence establishes that It is clearly in the best interests of BPWZ’s children if they had access to both of their parents in Australia, and that they would be able to receive greater emotional and financial support from BPWZ if he remained in Australia.  It is clearly in the best interests of both BPWZ’s daughters if BPWZ’s visa is not cancelled and the mandatory visa cancellation decision is revoked and he is able to remain in Australia.

1. Expectations of the Australian Community

1. The third primary consideration listed in Direction No 65 is the expectations of the Australian community.  Paragraph 13.3 of Direction No 65 provides:

   13.3       Expectations of the Australian community

   (1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. Decision-makers should have due regard to the Government’s views in this respect.

2. The Tribunal refers to the stated “Principles” in paragraph 6.3 of Direction No 65 (refer to paragraph 21 above) and in particular the principles that the Australian community expects the Australian Government to cancel the visas of non-citizens who commit serious crimes and non-citizens who commit crimes of a violent nature should generally expect to forfeit the privilege of staying in Australia.  Having regard to those “Principles”, it is fair to say that the Australian community would expect that BPWZ’s visa be cancelled.

3. However, based on a number of mitigating factors, including BPWZ’s relatively young age, his good prospects of reform and rehabilitation and reform, the fact that he has no prior history of offending, he has future goals and ambitions, he has two Australian citizen minor children in whose best interests it is that he remain in Australia and his very strong family ties and support, the Australian community should afford BPWZ a second chance and allow him to remain in Australia and be released back into the Australian community.

1. Other considerations

1. Paragraph 14(1) of Direction No 65 states:

   14          Other considerations – revocation requests

   (1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations person’s visa, other considerations must be taken into account where relevant.  These considerations include (but are not limited to):

   (a)       International non-refoulement obligations;

   (b)       Strength, nature and duration of ties;

   (c)       Impact on Australian business interests;

   (d)       Impact on victims;

   (e)       Extend of impediments if removed.

(a)       International non-refoulement obligations

1. No claims are made by BPWZ in respect of this consideration and none would appear to arise on the evidence before the Tribunal and, as noted by the delegate, BPWZ has effective protection in New Zealand which would be the receiving country.

(b)      Strength, nature and duration of ties

1. As already stated, BPWZ has been ordinarily resident in Australia since arriving at the age of 22 in August 2005. With the exception of one brother (who still lives in New Zealand but with whom e has not contact), all of BPWZ’s immediate family, including his two daughters, his mother, his eight brothers and three sisters reside in Australia (in Melbourne or Perth).  Further, as previously stated, since arriving in Australia BPWZ has worked in Australia as a despatch operator, leading hand and storeman, and according to his and his sister’s evidence, he has a job to go to upon is release from detention. BPWZ has also provided evidence of his involvement with the Somali community as well as assistance to various charity organisations.

2. BPWZ has very strong and enduring ties to Australia.  As submitted by BPWZ’s representative:

   31.BPWZ’s social and family ties are much stronger in Australia than anywhere else.  The Australian relatives (both immediate and other) he has known his whole life having been brought up around them as a child.  Moreover, the strength of these relationships are at a high level – particularly with his immediate family.  All of them supported and stood by him by BPWZ through his relationship breakdown, custodial sentence and regularly visited him in prison.  In other words, no one Australian relative ‘turned their back’ on BPWZ when they easily could have.  The supporting statements from his family members clearly prove this point.  The support network further adds weight to BPWZ’s argument that his prospects of continuing rehabilitation are excellent and the risk of recidivism (and therefore risk to the Australian community) [is] low.

(c)       Impact on Australian business interest

1. Paragraph 14.3(1) of Direction No 65 provides that “an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project or delivery of an important service in Australia”.

2. No known business interests will be impacted should BPWZ’s visa not be reinstated.

(d)      Impact on victims

1. Whilst there is no direct evidence from BPWZ’s victim (Mr Singh, the taxi driver) before the Tribunal, it is clear from the sentencing remarks of Judge Mullaly that BPWZ’s offending is likely to have had profoundly harmful impact upon him.

2. In his oral evidence before the Tribunal, BPWZ said that before the trial he had apologised to the victim and that the victim told him that he forgave him.

(e)       The extent of any impediments that BPWZ may face

1. Paragraph 14.5(1) of Direction No 65 provides guidance on the assessment of the extent of impediments that a 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.

2. As a New Zealand citizen, BPWZ would have access to employment, health services, education and social security in New Zealand, being a first world English speaking country which is broadly comparable to Australia in terms of its economy and culture.  Despite this, BPWZ is likely to face considerable impediments if he is required to return to New Zealand, including:

   ·     lack of a family and friend support network.  As stated above, the only remaining family BPWZ has in New Zealand is one brother from whom he is estranged;

   ·     hardship caused to his immediate family in Australia.  BPWZ’s family in Australia, including his mother, his ex-wife and his two daughters lack the financial capacity to visit him regularly in New Zealand.  The removal of BPWZ would also have a serious emotional impact on his family in Australia, with whom he is very close; and

   ·     hardship to BPWZ personally.  If BPWZ is able to remain in Australia he has family to live with (at no expense) and a job to go to, to “get him back on his feet”.  BPWZ considers his employment prospects in New Zealand, compared to Australia, as low and even though he will be entitled to unemployment benefits in New Zealand, these will take some time to receive and, in the interim, he will have nowhere to live or get support from. Having to return to New Zealand will have serious emotional impact on BPWZ personally.

1. Conclusion – primary and other relevant considerations

1. Having regard to all of the primary considerations and other relevant considerations required to be taken into account by the Tribunal under Direction No 65 and in light of all of the evidence and material before the Tribunal, the Tribunal concludes, on balance, that the correct and preferable decision is that the mandatory cancellation of BPWZ’s visa should be revoked.

DECISION

1. For the above reasons, the Tribunal sets aside the decision under review and, in substitution, decides that the original decision (being the mandatory cancellation of BPWZ’s visa) should be revoked under s 501CA(4) of the Migration Act.

I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh

........[Sgd]................................................................

Administrative Assistant

Dated 1 August 2016

Date(s) of hearing	5 & 6 July 2016
Representative for the Applicant	Mr M Udall
Solicitors for the Applicant	Martin Udall & Associates
Representative for the Respondent	Mr A Gerrard
Solicitors for the Respondent	Australian Government Solicitor