Bristowe and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2022] AATA 4063
•30 November 2022
Bristowe and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4063 (30 November 2022)
Division:GENERAL DIVISION
File Number: 2020/0983
Re:Lyrick Adrian Bristowe
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member A.A. Nikolic, AM CSC
Date of decision: 30 November 2022
Place:Melbourne
The Tribunal affirms the decision under review.
.........................[sgd]...............................................
Senior Member Andrew Nikolic AM CSC
CATCHWORDS
MIGRATION– citizen of New Zealand – mandatory visa cancellation – Class TY Subclass 444 Special Category (Temporary) visa – non-revocation of mandatory cancellation decision – substantial criminal record – failure to pass the character test – voluntary return to New Zealand after proceedings commenced – failure to attend Tribunal hearings – decision to proceed in absence of party with reasonable notice of a proceeding – Ministerial Direction No. 90 applied – reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)Migration Regulations 1994 (Cth)
CASES
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
Bristowe and Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs [2020] AATA 1217
Bristowe and Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs [2022] AATA 200
Bristowe v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs [2022] FCA 690
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs [2020] HCATrans 56
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548
Navoto v Minister for Home Affairs [2019] FCAFC 135
Romanov v Minister for Home Affairs [2019] FCAFC 13
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
XSLJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1138SECONDARY MATERIALS
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Don Andrews and James Bonta, The Level of Service Inventory–Revised (Multi-Health Systems Inc. 1995)Sentencing Advisory Council, “Imprisonment,” < FOR DECISION
Senior Member A. Nikolic AM CSC
30 November 2022
INTRODUCTION
The Applicant seeks review of a decision made by the Respondent under s 501(CA)(4) of the Migration Act 1958 (Cth) (the Act), not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (the visa).
For the following reasons, the Tribunal affirms the reviewable decision.
FACTS
The Applicant is a 23-year-old citizen of New Zealand.[1] He first arrived in Australia in December 2004 and has travelled internationally multiple times since.[2] He undertook schooling in Australia to Year 9 level[3] and refers to several work roles.[4]
[1] Exhibit R1, 101.
[2] Ibid 13-14 [9]; 326-328; Ibid 13 [2]-[3]; 521 [11]-[14].
[3] Ibid 14 [11].
[4] Ibid 14 [12]; 16 [42]-[45]; 116.
The Applicant has not been law-abiding in Australia. He commenced offending at a young age, which has continued into adulthood. He first answered a charge of larceny in mid-2016. His most recent convictions on 8 August 2019, included supply of a commercial quantity of drugs, for which he received a sentence of two years and nine months’ imprisonment.
On 26 September 2019, soon after he was sentenced, the Applicant’s visa was mandatorily cancelled on character grounds (cancellation decision).[5]
[5] Ibid 136.
On 14 October 2019, the Applicant made representations about why the cancellation decision should be revoked.[6] His representations were made within the permissible period.[7]
[6] Ibid, 102.
[7] Ibid 298.
The Applicant was taken into immigration detention on 18 January 2020, where he has since remained.[8]
[8] Ibid 672.
On 13 February 2020, the Respondent notified the Applicant of the decision not to revoke the cancellation decision (non-revocation decision).[9] The Applicant acknowledged receipt of this on the same day.[10]
[9] Ibid 81.
[10] Ibid 324.
On 21 February 2020, the Applicant sought review of the non-revocation decision.[11]
[11] Ibid 75-80.
In May 2020, the application was affirmed by a differently constituted Tribunal.[12] On 21 June 2021, the Federal Court of Australia (Thawley J) remitted the matter by consent.
[12] Bristowe and Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs [2020] AATA 1217.
On 11 February 2022, a differently constituted Tribunal affirmed the remitted matter.[13] On 14 June 2022, Justice Thawley set this aside,[14] giving rise to the current proceeding.
[13] Bristowe and Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs [2022] AATA 200.
[14] Bristowe vMinister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs [2022] FCA 690.
On 10 August 2022, a Case Management Telephone Directions Hearing (CMTDH) was conducted to issue scheduling orders. Detention staff advised the Tribunal that the Applicant declined to attend without explanation. Scheduling orders were subsequently issued, requiring the Applicant to lodge any materials on which he intended to rely at the hearing by 7 October 2022. The Tribunal also sent the Applicant contact details for two organisations that consider pro bono assistance applications, and an example outline of submissions. These were sent to the email address nominated by the Applicant.
The Applicant did not lodge any materials or contact the Tribunal by 7 October 2022. A further CMTDH was conducted on 12 October 2022 to determine the reason for noncompliance. The Applicant declined to attend the hearing. Detention staff advised he was not unwell and again did not provide a reason.
In the lead up to the substantive hearing, the Tribunal was advised by the Respondent that the Applicant had requested voluntary removal to New Zealand on 12 October 2022. The Respondent was required to facilitate this as soon as reasonably practicable, so the scheduled hearing could not proceed. The Tribunal listed a CMTDH for 7 November 2022, to give the Applicant an opportunity to clarify his intentions. The Applicant again declined to attend this hearing without explanation.
The Tribunal re-scheduled the substantive hearing for 22 November 2022, but the Applicant failed to respond to communication from the Tribunal or Respondent. Emails and letters went unanswered. When his mobile telephone number was contacted by the Tribunal, ‘call failed’ messages and an inability to leave a message suggested it had been disconnected.
Given what is at stake for the Applicant, the Tribunal declined to dismiss the application for non-appearance.[15] The Tribunal also decided not to re-schedule the hearing again because there was no information from the Applicant to justify this. The Tribunal instead decided to hear the application pursuant to s 40(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The Applicant had reasonable notice of the proceeding and was aware of three previously scheduled interlocutory hearings but declined to attend without explanation. In deciding to hear the application in this way, the Tribunal noted a considerable amount of material had already been lodged, given that the application has already been before the Tribunal and Federal Court twice before. The documentary evidence exceeds 1200 pages and includes transcripts of the Applicant’s oral evidence at the two previous hearings, comprehensive statements from the Applicant, a Statement of Facts, Issues, and Contentions from his previous lawyer, a psychologist’s report, Personal Circumstances Forms, statements from supportive friends, records relating to rehabilitation, and medical evidence from IHMS. The Tribunal is satisfied there is sufficient material on which to consider and decide the application.
[15] Pursuant to 42A(5) of the AAT Act.
This hearing was held by video at the Tribunal’s Melbourne Registry on 22 November 2022. The Minister was represented by Ms Kate Ervin, a solicitor from Clayton Utz. Ms Ervin made oral submissions and did not oppose the Tribunal’s intention to hear the matter in the Applicant’s absence.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the AAT Act and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction in this matter.
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in s 501(6) of the Act and a person does not pass it if they have a ‘substantial criminal record’ as defined by s 501(7). This includes if they have been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).
Under s 501CA(3) of the Act, the Minister is obliged to give notice of a cancellation decision as soon as practicable after it is made, and to invite the affected person to make representations about revocation. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act confers a discretionary power upon the Minister to revoke the original decision if the person whose visa has been cancelled makes representations in accordance with the invitation, and the Minister is satisfied that the person passes the character test, or there is another reason why the original decision should be revoked.
Ministerial Direction 90
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. On 8 March 2021, the Minister signed Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”). The Direction must be applied by all decision-makers (except for the Minister acting personally).[16]
[16] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ).
The following principles at cl 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(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 noncitizens 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 noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision-maker must have regard to clauses 8 and 9, where relevant to the decision.
Clause 8 of the Direction identifies the following as primary considerations:
(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;
(d)Expectations of the Australian community.
Clause 9 of the Direction sets out a non-exhaustive list of other considerations:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims;
(d)Links to the Australian community, including: (i) Strength, nature and duration of ties to Australia; and (ii) Impact on Australian business interests.
Clause 7(1) provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources.’
Clause 7(2) states that ‘Primary considerations should generally be given greater weight than the other considerations.’ This does not preclude the Tribunal, however, from giving an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[17]
[17] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations.’ The weighing process, however, is left to individual decision-makers.[18]
[18] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, [57].
ISSUE TO BE RESOLVED
By virtue of his convictions and sentence of imprisonment on 8 August 2019, the Tribunal finds the Applicant fails the character test. As such, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation decision. The issue to be determined, therefore, is whether there is ‘another reason’ for revocation.
The term ‘another reason’ has been examined by the Full Court (“FCAFC”).[19] Principles applying to the review of decisions under s 501CA(4) of the Act were collected by the FCAFC in Bettencourt.[20] Their Honours cited the Court’s reasoning in Viane with approval about how the existence of ‘another reason’ is determined:
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.[21]
EVIDENCE
[19] See for example Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548 [32]; Navoto v Minister for Home Affairs [2019] FCAFC 135 [95]-[100]; Romanov v Minister for Home Affairs [2019] FCAFC 13 [12].
[20] Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172, [27] (Burley, Colvin, and Jackson JJ).
[21] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
Documentary evidence
The following documents were tendered into evidence:
(a)A Remittal Bundle of documents lodged by the Respondent numbering 806 pages;[22]
(b)A Supplementary Remittal Bundle of documents numbering 93 pages;[23]
(c)A bundle of medical records from the International Health and Medical Services (IHMS)[24] and conduct records numbering 345 pages.[25]
[22] Exhibit R1.
[23] Exhibit R2.
[24] IHMS provides primary and mental health care services within Australia’s immigration detention network.
[25] Exhibit R3.
Applicant’s evidence
The Tribunal has considered the Applicant’s previous statements in evidence[26] and transcripts of his oral testimony at the April 2020[27] and October 2021[28] hearings.
PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct
[26] Exhibit R1, 13-23, 148-149; 158-159; 631-638.
[27] Ibid 506-585.
[28] Ibid 732-806.
The nature and seriousness of the conduct
It has previously been conceded by the Applicant that his overall offending is serious if not very serious.[29] This is borne out by multiple court appearances since July 2016 when he was 17 years of age. There are no meaningful gaps between 2016 and 2019 without a finding of guilt or conviction being recorded. The applicant’s principal offending relates to possession and supply of prohibited drugs.[30] He has also been found guilty several times of dishonesty and property damage offences. In September 2016, he was convicted of being in ‘Custody of knife in public place – subsequent offence’. He has stolen a fundraising money box,[31] groceries,[32] damaged external walls with graffiti,[33] and driven a motorcycle and car on the roads without ever holding a licence.[34] Police reports refer to the Applicant as exhausting ‘his allocation of Youth Cautions’.[35] One report dated 2017 states: ‘When dealing with police, the accused clearly had no regard for the seriousness of his actions and appeared to have no remorse’.[36]
[29] Ibid 768 [17].
[30] Ibid 23-24; 415; 430-431; 489-492; 500-504.
[31] Ibid 354.
[32] Ibid 372-373.
[33] Ibid 361-362.
[34] Ibid 390; 405.
[35] Ibid 373; 431-432; 451.
[36] Ibid 405.
Imprisonment is a sentence of last resort and the most severe sanction available to the courts.[37] The sentence of two years and nine months’ imprisonment for the Applicant’s most recent offending reflects the objective seriousness of his conduct.[38] There is a clear trend of increasing seriousness in the Applicant’s crimes since 2016,[39] including because of the repeat nature of some offences and the increasingly severe judicial punishments awarded. His conduct reflects a persistent disrespect for Australian laws.
[37] See for example: Sentencing Advisory Council, “Imprisonment,” <
[38] Clause 8.1.1(1)(c) of the Direction.
[39] Clause 8.1.1(1)(d) of the Direction.
The cumulative effect of the Applicant’s 16 crimes over a three-year period has imposed costs and consequences on his victims and the broader community. This includes through intervention by police, courts, and other agencies.[40]
[40] Clause 8.1.1(1)(e) of the Direction.
The Tribunal notes reports in evidence about the Applicant being ‘polite and courteous’ at times when dealing with custodial officers.[41] Several other records, however, refer to misconduct.[42] For example, illicit substances and contraband have been found in his possession, and he has reportedly been involved in major and minor incidents. The Tribunal does not discern any motive for the authors of police or custodial records to have produced other than an accurate account. The totality of the evidence about the Applicant’s misconduct in custodial settings,[43] including his documentary submissions,[44] and records from different report authors on different days, supports a reliable conclusion that the Applicant has not been consistently compliant in custodial settings.
[41] Exhibit R1, 682.
[42] Ibid 670; 681; 683; Exhibit R2.
[43] Exhibit R3, 124-347.
[44] Exhibit R1, 18 [65]-[72].
The totality of the Applicant’s offending and other conduct is very serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal has considered a report prepared by psychologist Dr Jacqui Yoxall dated 16 April 2020, prepared at the request of the Applicant’s previous legal representative.[45] The Tribunal has also considered Dr Yoxall’s oral evidence at the first hearing in April 2020.[46]
[45] Exhibit R1, 28-45.
[46] Ibid 560-574.
The Applicant stated in his past oral evidence that he did not enjoy school, got bored, was suspended at times, and ‘just wanted to have fun socialising with [his] friends’, including through drug experimentation.[47] He has referred to school as unfulfilling and an environment where he was ‘peer-pressured’ into drug-taking.[48] He claimed that for a time he ‘did not try to look for drugs [but] they just kept finding [him]’.[49] The Applicant contextualises his offending as arising from a ‘really bad drug habit’ and being ‘young, dumb, and full of mistakes’.[50] He claimed to have come under the influence of an adverse peer group from the age of 13, which exposed him to ‘every single drug under the sun’.[51] He referred to using Xanax, cannabis, inhalants, ecstasy, LSD, MDMA, cocaine, and magic mushrooms between the ages of 13 and 16.[52] He ‘soon got the taste’ for illicit drugs and rebelled against his family by running away and using ‘heavy stuff’.[53] He also claimed a ‘bad ex girlfriend…influenced [him]’ because she was heavily drug-addicted and he was ‘blinded by love’ and wanted to impress her.[54] After they broke up, he ‘started using hard’ to ‘get high and try to forget’.[55] He explained that his most serious supply offence was motivated by the need to fund his own addiction.[56]
[47] Ibid 14-15 [19]-[25].
[48] Ibid 15 [25].
[49] Ibid 15 [31].
[50] Ibid 115.
[51] Ibid 521 [39].
[52] Ibid 15 [22]-[25]; 522 [5]-[17].
[53] Ibid 149; 522 [24]-[34].
[54] Ibid 16 [39]-[41]; 115; 516 [5]-[20].
[55] Ibid 149.
[56] Ibid 516 [22].
The Applicant has erroneously referred to imprisonment in 2019 as following his ‘first ever major charge’ and ‘first ever conviction’.[57] He claimed imprisonment enabled him to ‘take a step away’,[58] think more clearly,[59] rehabilitate himself, avoid negative examples,[60] and realise how wrong his past conduct was. The Applicant said he will not re-offend if allowed to remain in Australia because he has matured and learned a salutary lesson.
[57] Ibid148.
[58] Ibid 516 [37].
[59] Ibid 520 [22].
[60] Ibid 517 [4].
In terms of drug history, the Applicant referred to daily use of drugs during his most recent offending.[61] He claims not to have used drugs while imprisoned and tried his ‘best to exercise and stay out of trouble’.[62] The Tribunal notes references in evidence, however, to the Applicant’s misconduct in custody. This includes possessing contraband, disobeying directions, and fighting, for which he was sanctioned with loss of privileges and a good behaviour direction. At his last Tribunal hearing in 2020, he admitted taking illicit drugs while imprisoned, namely Buprenorphine, Marijuana, and White Ox.[63]
[61] Ibid 148.
[62] Ibid 115.
[63] Ibid 527 [35]-[47]; Exhibit R3, 2.
There is reference in some records to the Applicant receiving Methadone in prison.[64] At the last hearing in 2021, he claimed not to be addicted to any illicit substances:[65]
Well, I've been - I've been clean for so long. I've been clean for so long and I feel I'm not addicted to drugs anymore because my headspace is a lot more clearer now. There's no - when I first - when I first come into the gaol and detention, like I was - my - my cravings and my head was everywhere. But I've spent so long without - without any type of drug. I spent so long that I realise addiction - that I don't need it anymore. That's why I feel like I'm not addicted because I feel like I don't need it anymore, which before, when I was out and when I'd just come into gaol, I felt like I needed it. But by spending so much time away from the outside and drugs, I now know that in my head, I don't - I don't need it anymore.[66]
[64] Exhibit R1, 673.
[65] Ibid 739 [47].
[66] Ibid 745 [26].
The Tribunal notes relatively recent reports about the Applicant’s involvement in misconduct, including a major incident at his most recent immigration detention centre on 12 March 2022, where a fire was lit, and property damaged.[67] He has also been found in possession of contraband[68] and was reportedly involved in a minor disturbance.[69]
[67] Exhibit R2, 79-80.
[68] Ibid 24-27; 28-30; 31-33; 87-91; Exhibit R3, 130.
[69] Exhibit R2, 85.
The Applicant referred to undertaking literacy and numeracy classes in custody and said he is willing to do more if available.[70] During his last hearing in 2020, he referred to attendance at Narcotics Anonymous, Odyssey House, and possible rehabilitative options if released.[71] There is no corroboration for his Narcotics Anonymous attendance. In terms of rehabilitation, the Tribunal notes the following references in evidence:
(a)On arrival at immigration detention in January 2020, the Applicant asked to speak to medical staff about commencing Opioid Replacement Therapy, but then failed to attend five drug and alcohol clinic sessions scheduled for him without explanation.[72]
(b)The Applicant stated he did some literacy and numeracy courses while imprisoned but did not continue with them because they were of ‘poor quality’.[73]
(c)The Applicant claimed he undertook sessions with Narcotics Anonymous in prison and some telephone counselling with Odyssey House in detention.[74]
(d)Certificate of Completion from Universal Class[75] in Depression Management dated 15 November 2020.[76]
(e)Certificate of Completion from Universal Class in Drug and Alcohol Abuse 101 dated 14 November 2020.[77]
(f)Certificate of Completion from Universal Class in Stress Management dated 30 May 2021;[78] and
(g)Certificate of Completion from Universal Class in Workplace Drug Use – An HR Guide dated 14 September 2021.[79]
[70] Exhibit R1, 115.
[71] Ibid 517 [36]-[47]; 518 [22]-[38]; 528 [17]-[46].
[72] Exhibit R3, 105.
[73] Exhibit R1, 14 [13].
[74] Ibid 19 [75], [88]; 24-25.
[75] Universal Class is a United States based fee for service provider offering hundreds of courses via an online learning platform. The Tribunal has considered the Applicant’s previous oral evidence about undertaking universal class courses (Exhibit R1, 738-740).
[76] Exhibit R1, 640.
[77] Ibid 641.
[78] Ibid 642.
[79] Ibid 643.
In terms of protective factors, the Applicant previously stated he intends living with his mother, her partner, and his grandparents if released.[80] He also intends returning to work with a former employer. The Tribunal notes in this regard:
(a)A brief letter dated 9 July 2019, states that the Applicant was employed by a company for two months in May and June 2017, which intends employing him ‘under the same circumstances when he is available for work’.[81] This letter is now over three years old and there is no information about the circumstances under which the work offer was made, or its current availability. The Tribunal notes the Applicant’s evidence at the 2020 Tribunal hearing about previously leaving this employer and other employers because he did not like to work.[82] It is also noteworthy the Applicant reportedly left work roles in prison because of boredom.[83] He now claims to have matured sufficiently to apply himself more diligently and aspires to jobs in the construction industry.[84]
(b)At the 2021 hearing, reference was made to the Applicant having ‘three jobs in Australia, but…not for a very long period of time’.[85] He expressed confidence about maintaining employment if released because he is now more mature and intent on putting his ‘life on track’.[86]
(c)The Tribunal has considered a job offer discussed at the 2021 Tribunal hearing, where the Applicant’s close friend offered to employ him in an online retail business, where the items sold include implements associated with the smoking of marijuana like pre-rolled cones, bongs, scales, storage/stash, hidden containers, and herbs ‘used for sleep’, which the friend agreed has a culture centred around marijuana.[87]
[80] Ibid 103; 115.
[81] Ibid 127.
[82] Ibid 532 [16]-[32].
[83] Ibid 532 [40]; 740 [41].
[84] Ibid 533 [31].
[85] Ibid 773 [9].
[86] Ibid 741 [5].
[87] Ibid 757-765; 770.
It was submitted at the 2021 hearing that the Applicant’s relationship with a girlfriend he met online approximately five months before that hearing, was a protective factor ameliorating his recidivism risk.[88] There is no further evidence about this relationship or how the Applicant’s voluntary return to New Zealand has affected it.
[88] 768 [43].
It was submitted by the Applicant at the 2021 hearing that the deterrent effect of custody is a protective factor.[89] In terms of the risk of relapse, the Applicant said he intends re-engaging with Odyssey House if this becomes an issue.[90]
[89] Ibid 770 [32].
[90] Ibid 743 [39].
The Applicant’s counsel conceded at the 2021 hearing that the primary consideration Protection of the Australian community should be attributed ‘moderate weight’, based on the Applicant having a ‘low or low to moderate risk of reoffending’.[91]
Tribunal findings: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
[91] Ibid 771 [7]-[11].
The Applicant has engaged in polysubstance drug abuse since his early teenage years.[92] The fact he continues to possess illicit substances and contraband in custodial settings cuts across his submissions about insight, remorse, maturity, and rehabilitation.
[92] Ibid 18 [64].
The nature of harm to the Australian community if the Applicant reoffends is potentially grave and encompasses physical, psychological, financial, and societal consequences. This includes direct harm to users of illicit drugs, criminal activity linked to commercial drug supply, and the broader corrosive effects of illicit drugs on Australian society. The Applicant has caused harm and imposed costs on the community, including through the investigative, judicial, and other resources required to address his crimes.
A repeat of the Applicant’s dishonesty offending could cause financial and psychological harm to victims, including through a sense of diminished personal security. It is noteworthy the Applicant has not been diverted from repeat offending and crimes of escalating seriousness despite a range of judicial sanctions.
The Tribunal does not accept the Applicant’s claim that his 2019 convictions were the first major charges he answered. Other offences such as larceny, possession of drugs, and having a weapon in a public place can be considered major charges.
After applying the LSI-R risk assessment methodology, which is an internationally validated actuarial tool used to assess recidivism risk and identify criminogenic needs,[93] Dr Yoxall rated the Applicant as a ‘moderate’ risk. She said this placed him in a risk percentile of ‘48.1 per cent of reoffending within 12 months’.[94] She assessed the Applicant’s unmet rehabilitation needs were best addressed through a residential drug program, without which he would constitute a higher recidivism risk.[95]
[93] The Utility of Level of Service Inventory – Revised (LSI-R).
[94] Exhibit R1, 573 [5]; 576 [14].
[95] Ibid 573 [28]; [35].
Notwithstanding the Applicant’s claims that he is no longer addicted to drugs and has self-reported some rehabilitative progress, there is no independent, expert corroboration of this. The Tribunal found his remarks at a previous hearing about what he learned through online courses with Universal Class to be overly general and unpersuasive. An example is:
Question: What have you learnt about your drug use through that course?
Answer: So one of the main real - also, your mental health plays in that, but one of the main things is what I've picked up from it is - a big factor in it is your environment and who you hang around. But not just that, but it does play a big part, is if you're hanging around people, it's like anything is what it's taught me. If you hang around criminals, you become a criminal. If you hang around rich people, you're eventually going to become rich. So it's taught me that the people you surround yourself with plays a big factor. So the main thing is to eliminate that and it'll become a lot easier not to abuse drugs. If you're around people that do drugs, you're going to end up like that. That's what I picked up from it, is your environment is a main factor in it.
…
I learnt that addiction is a very, very bad thing. It's close to a disease, addiction. Some people react different to it, but overall…addiction is - it is a bad thing for some people. It is. Some people can't get over it; others can get over it easier than some. But yes, I know drugs have caused a lot of - wrecked a lot of people's lives, including mine.[96]
[96] Ibid 739 [31]; 741[43].
The Applicant’s latest expressions of remorse and acceptance of responsibility are conditioned by a tendency to blame others. This includes peer pressure and a girlfriend whose ‘big habit’ purportedly increased his drug use.[97] Aspects of the Applicant’s evidence leave the impression he is highly suggestible and unlikely to resist associating with negative peers if released.
[97] Ibid 525 [7].
In terms of protective factors, these do not appear substantially different from those of the past. This includes the interests of the Applicant’s parents and grandparents, who he was living with when committing offences, and who unsuccessfully tried to nudge his life in a positive direction.[98] After moving back into the family home at the age of 14, he continued to use ‘heavier drugs’ and developed connections leading him to supply drugs to others for several years.[99] He has previously claimed his parents and grandparents did not initially know he was using drugs, despite accompanying him as a minor to the police station.[100] He claims that after his drug offending came to their notice, they gave him ‘the talk’, but he ‘didn’t care’ and ‘didn’t want any support’.[101] He agreed that his addiction only worsened despite their efforts.[102] In the absence of any evidence supporting a finding that he has rehabilitated or taken steps to change his ways, it is not difficult to foresee the Applicant again being subjected to the sort of stressors he says partly facilitated his spiral into heavy drug addiction, namely peer pressure, relationship issues, and unexpected setbacks in life. It is also not difficult to foresee that he could again hide his drug-taking and criminal activities from those closest to him. Ultimately, however, the Applicant has conceded it was his ‘choice to use more drugs…[and]…hang out with those people.’[103] In terms of employment as a protective factor, the Tribunal does not consider the Applicant’s proposed work in a business with a culture centred around marijuana[104] assists his abstinence intentions. Moreover, he has a history of leaving work roles because he claimed to be bored, so past employment has not meaningfully impacted his recidivism risk.
[98] Ibid 151.
[99] Ibid 522 [41]-[47]; 523 [11].
[100] Ibid 525 [32]-[37].
[101] Ibid 526 [15].
[102] Ibid 526 [32].
[103] Ibid 534 [29].
[104] Ibid 757-765; 770.
The Tribunal accepts the Applicant has undertaken some limited drug rehabilitation and expresses an intention of continuing this in the future. But decisions should not be delayed for rehabilitation to occur.[105] Despite any rehabilitative progress, the Applicant reportedly took illicit drugs in custody[106] and punched another inmate in the head, purportedly to protect a friend.[107] His misconduct in custodial settings includes periods where his ability to remain in Australia was under review. His failure to attend drug and alcohol clinic sessions scheduled for him also casts doubt on his intention to address his unmet rehabilitation needs if released. His past conduct exacerbates concerns about the extent of his insight, remorse, and rehabilitation. It also diminishes the persuasive force of claims that the risk of future visa cancellation or the salutary impact of detention reduces his risk of relapse and reoffending. The Tribunal is particularly concerned by the Applicant’s evidence that he intends remaining abstinent if allowed to stay in Australia but is likely to relapse and associate with gangs if returned to New Zealand, because his ‘head wouldn’t be in the right space’.[108] The conditional and transactional nature of his abstinence intentions reflects a concerning lack of commitment, which again diminishes the persuasiveness of his intention to change the course of his life.[109]
[105] Clause 8.1.2(2)(b)(ii) of the Direction.
[106] Exhibit R1, 537 [37]-[45]; 538 [1]-[30]
[107] Ibid 538 [21]-[47].
[108] Ibid 22 [123]; 542 [3], [22]-[44].
[109] Ibid 75.
Having regard for the totality of the evidence, particularly the nature and persistence of the Applicant’s offending and other misconduct, and his inability to make meaningful changes despite considerable supports, the Tribunal finds he is not meaningfully rehabilitated. His general recidivism risk is at least moderate.
When the very serious nature of the Applicant’s offending and other conduct is coupled with a moderate recidivism risk, and the potentially significant harm resulting from any repeat, the risk he poses to the community is unacceptable. The Tribunal assigns heavy weight to this primary consideration against revocation.
Family violence committed by the non-citizen
There is no evidence the Applicant has committed any offence or engaged in conduct that might be considered family violence. This primary consideration carries neutral weight.
Best interests of minor children in Australia affected by the decision
The Applicant did not refer to the interests of any children in his documentary materials.[110] This primary consideration is not enlivened and carries neutral weight.
[110] Ibid 38-41.
Expectations of the Australian community
Clause 8.4 (1) of the Direction 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.
Clause 8.4(2) of the Direction states that visa cancellation, refusal or non-revocation may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. Serious character concerns are raised because of conduct in Australia or elsewhere, of the following kind:
(a) acts of family violence;
(b) …;
(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;
….
Clause 8.4(3) provides that the above expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. As per cl 8.4(4), this consideration is ‘about the expectations of the Australian community as a whole’, and decision makers are to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in a particular case.
Clause 8.4(4) of the Direction correlates with the reasoning of the FCAFC in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (FYBR). Notwithstanding the different pathways in judicial reasoning, the plurality in FYBR held that Expectations of the Australian community is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[111]
[111] FYBR (2019) 272 FCR 454, at 471–2 [66] (Charlesworth J), and 476 [91] (Stewart J).
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[112]
[112] Ibid at 473 [75]–[76] (Charlesworth J).
The Tribunal notes the High Court of Australia refused an application for special leave to appeal from the orders in FYBR, holding at [301]–[303] that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’[113]
[113]FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 056.
During the 2021 Tribunal hearing, counsel for the Applicant conceded ‘this primary consideration weighs considerably against the Applicant’ but argued the weight should be at the ‘lower end of the spectrum’ by virtue of his long residence in Australia.[114] The Applicant’s counsel also made submissions about ‘double counting’ of information.[115] The Tribunal rejects the latter consistent with the reasoning of Halley J in XSLJ, which is an aspect of the reasons that was undisturbed on appeal:[116]
Not being required to take into account a matter “repetitiously” is a fundamentally different proposition to prohibiting a matter being taken into account for two or more mandatory considerations. The matters to be taken into account in addressing mandatory and other considerations may well overlap, particularly in circumstances where a consideration is expressed in general terms. It is neither desirable nor, in my view, permissible not to have regard to material that is otherwise relevant to a consideration in Direction 79 on the basis that it is more directly relevant to another consideration in that direction.
[114] Exhibit R1, 776 [14].
[115] Ibid 777 [1]-[10].
[116] XSLJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1138.
The Australian community has a low tolerance of criminal offending by non-citizens. The persistent and repeat nature of the Applicant’s crimes and other misconduct weighs heavily against him. The Australian community would expect, as a norm, that the Government would not allow him to remain in Australia, and he should expect to forfeit the privilege of remaining in Australia: cl 5.2(1)-(3) of the Direction.
This primary consideration weighs moderately against revocation.
OTHER CONSIDERATIONS
International non-refoulement obligations
Tribunal consideration: non-refoulement
The Applicant has not made any non-refoulement claims and none arise from the evidence. The Tribunal finds this consideration is not enlivened and carries neutral weight.
Extent of impediments if removed
The Applicant is currently a young man of 23 years of age. No language or cultural barriers are apparent from the evidence. He does not claim to have any diagnosed medical or psychological conditions,[117] although his documentary evidence has passing reference to using a Ventolin inhaler for mild asthma.[118] The Tribunal has considered a bundle of IHMS medical records from the Applicant’s time in detention.[119] This includes reference to him missing or declining to attend multiple appointments,[120] having ankle and dental pain, refusing to be vaccinated against COVID-19, previously being on the Methadone Program, and having a history of smoking Buprenorphine four times daily, including while in custodial settings.[121] Very little medication, except for an asthma inhaler[122] and over-the-counter pain medication has been given to the Applicant.[123] He is reported to have ‘not been diagnosed with any major acute or chronic mental health issues’.[124] On the evidence currently before the Tribunal, the Applicant is in relatively good health.
[117] Exhibit R1, 117.
[118] Ibid 117.
[119] Exhibit R3, 1-121.
[120] Ibid 76-84.
[121] Ibid 2.
[122] Ibid 108.
[123] Ibid 69-71.
[124] Exhibit R3, 105.
The Applicant referred to having a New Zealand passport, which is now expired.[125] He claims to have no family or other support in New Zealand[126] and said that ‘there is less opportunity for working and a better life’ in New Zealand compared to Australia but did not corroborate this. The Tribunal notes its assessment of this consideration is in the context of a non-citizen being able to establish themselves and maintain basic living standards commensurate with ‘what is generally available to other citizens of that country’’;[127] not by comparison with the situation in Australia. There is no evidence the Applicant would be unable to access a comparable inhaler in New Zealand for his mild asthma if required, or other necessary support if he relapsed into drug use. There is also no evidence he would be treated differently to any other New Zealand citizen if he needed housing, income support, or other services. The Tribunal accepts, however, that his ability to re-establish himself will be somewhat more difficult without the sort of practical and emotional support available to him from family and friends in Australia. The Applicant’s voluntary return to New Zealand in early November 2022,[128] however, supports a reliable inference that he felt able to overcome impediments and re-establish a life for himself.
[125] Exhibit R1, 107.
[126] Ibid 103.
[127] Clause 9.2(1) of the Direction.
[128] Exhibit R2, 93.
This consideration weighs slightly in favour of revocation.
Impact on victims
In the absence of any direct evidence from victims or their families about the impact of a decision in this matter, the Tribunal finds this consideration is not enlivened and carries neutral weight.
Links to the Australian community
Clause 9.4 provides that a decision-maker must have regard to cl 9.4.1 to 9.4.2 of the Direction, which includes consideration of the strength, nature, and duration of any ties the non-citizen has to the Australian community and the impact on Australian business interests in the event they are not allowed to remain in Australia. Any work previously undertaken by the Applicant while living in Australia is insufficient to overturn the presumption that Australian business interests are enlivened where a decision under ss 501 or 501CA of the Act significantly compromises the delivery of a major project, or delivery of an important service. This consideration carries neutral weight.
The strength, nature, and duration of ties to Australia
The Applicant states in documentary evidence he is single,[129] but at the 2021 hearing referred to a ‘girlfriend’ he met online five to seven months earlier.[130] His aspirations if released are to start an eCommerce business with the assistance of a friend, ‘buy a house or two’ and start a family with his girlfriend.[131] The Tribunal has considered evidence from the Applicant’s girlfriend at the 2021 hearing, including that she had never met the Applicant personally.[132] There is no recent evidence from either the Applicant or his girlfriend about the status of their relationship since the last hearing.
[129] Exhibit R1, 109.
[130] Ibid 742-743.
[131] Ibid 744 [2]-[46].
[132] Ibid 749-757.
The Applicant’s mother, stepfather, grandparents, and great grandmother are of New Zealand (Maori) origin and live in Australia.[133] The Applicant said his family in Australia ‘would feel hurt’ if he was returned to New Zealand.[134] He also claimed this would impact his great grandmother because he would not be available to help look after her, or reside in a mutually supportive household with his mother and grandparents.[135]
[133] Ibid 114.
[134] Ibid 103.
[135] Ibid 117.
The Tribunal has considered a schedule of almost 150 visits received by the Applicant from family members and friends during his remand and imprisonment.[136] Several letters have also been provided from supportive family and friends, which the Tribunal has considered:
(a)An undated letter from the Applicant’s mother, stating he has matured and learned from his 2019 convictions and imprisonment. Reference is made to the support the Applicant can rely upon from his mother, stepfather, and grandparents if released.
(b)An undated letter from the Applicant’s grandmother, who states she has seen positive changes in him since imprisonment and has secured him a ‘stable job’ alongside her. She also refers to the practical and emotional support available to the Applicant from his family upon release.
(c)An undated letter from the Applicant’s grandfather in comparable terms to the Applicant’s grandmother.
(d)Letters from a person purporting to be the Chief Executive Officer and Co-Owner of a company, who claims to have known the Applicant for seven years.[137] The author describes the Applicant as his ‘younger cousin’s best friend’. In one letter the author erroneously claimed the Applicant’s ‘had no previous convictions’ and had made ‘one mistake’. Limited weight is placed on this letter given its uncertain provenance and the author’s lack of insight about the Applicant’s past conduct.
(e)An undated letter from a person purporting to be a Director of his own company, who claims to have known the Applicant since the age of 12.[138] The letter is not on company letterhead and there are no addresses, telephone numbers or other identifying features to establish the identity of this person or whether they fall within the meaning of the Direction. The author erroneously claims the Applicant ‘has never caused harm nor intended to cause harm to anybody’. Limited weight is placed on this letter given its uncertain provenance and the author’s lack of insight about the Applicant’s past conduct.
[136] Ibid 128-135.
[137] Ibid 56; 622.
[138] Ibid 54.
As detailed earlier, the Applicant attended school until Year 9 in Australia and has undertaken some work. At the 2021 Tribunal hearing, his counsel conceded that the Applicant only had ‘sporadic employment of a short compass in Australia since leaving school’.[139] In terms of contributions to Australia, the Applicant refers to helping ‘with volunteer work at Street University’ when he was 17 years of age.[140] There is no evidence to corroborate this claim from the organisation or any recipients of his purported volunteering.
[139] Ibid 774 [44].
[140] Ibid 14 [14].
After living in Australia since a young age and for a long duration, the Applicant’s ties are predominantly here. He would also be extended a higher level of tolerance given the duration of his residence since a young age.[141] Many of his relationships appear quite close given the frequent visits he received in custodial settings. On balance, this consideration weighs very substantially in favour of revocation.
Additional considerations
[141] Direction, cl 5.2(4).
Damage to Australia’s international reputation
At the 2021 Tribunal hearing, the Applicant’s then counsel submitted that moderate weight should be placed on damage to Australia’s international reputation if the Applicant was repatriated.[142] Several online newspaper articles were relied upon for this.[143]
[142] Ibid 767 [19].
[143] Ibid 645-663; 785-788.
Given the Applicant’s voluntary return to New Zealand, this submission has been overtaken by events. It is noteworthy the Act does not differentiate between applicants from different countries and the way another country may perceive Australia’s migration laws and policies is not a mandatory relevant consideration under the Direction. Trying to discern the effect of controversies under the international system, in the context of ‘another reason’ for revocation, is inherently problematic. This is particularly so given the short statutory timeframe available to decide s 501CA(4) matters. Moreover, primary considerations like Expectations of the Australian community, requires decision makers to proceed based on the Australian Government’s views, not how another country might regard them.[144] The Tribunal places no weight on Damage to Australia’s international reputation.
[144] Direction, cls 5.2(3), 8.1(1)(a)-b, 8.12(1), 8.2(1), 8.4(1)-(2); (4).
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test. In determining whether there is ‘another reason’ for revocation, the Tribunal has applied the Direction to the specific circumstances of this case. The Tribunal sees no reason to depart from the guidance in the Direction that greater weight ‘should generally be given’ to the primary considerations than other considerations.
The totality of the Applicant’s offending and other misconduct is very serious. The nature and persistence of his conduct, coupled with a moderate recidivism risk, is such that he constitutes an unacceptable risk of relapsing into drug use and committing further crimes. Notwithstanding the positive features of his case, community tolerance for the Applicant’s crimes would be very low. The community would expect, as a norm, that the Government would not allow him to remain in Australia, and he should expect to forfeit that privilege.
By virtue of his long residence in Australia since a young age, the Applicant’s ties are predominantly here. That said, he elected to voluntary return to New Zealand and there is no evidence he has been unable to establish himself there.
Having weighed all relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the mandatory cancellation of the Applicant’s visa should be revoked. That is because the two relevant primary considerations ‘Protection of the Australian community,’ ‘and ‘Expectations of the Australian community,’ considerably outweigh the combined weight to be given to the other countervailing considerations.
DECISION
It follows that the Tribunal affirms the decision under review.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for the decision of Senior Member A.A. Nikolic AM CSC
................[sgd]........................................................
Associate
Dated: 30 November 2022
Date of hearing: 22 November 2022 Advocate for the Applicant:
No appearance Advocate for the Respondent:
Solicitors for the Respondent:
Ms Kate Ervin
Clayton Utz
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