Bristowe and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 200
•11 February 2022
Bristowe and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 200 (11 February 2022)
Division:GENERAL DIVISION
File Number(s): 2020/0983
Re:Mr Lyrick Adrian BRISTOWE
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Mr Rob Reitano, Member
Date:11 February 2022
Place:Sydney
I affirm the delegate’s decision refusing to revoke the decision cancelling Mr Bristowe’s Class TY Subclass 444 Special Category visa issued to him on 23 April 2014.
.................................[SGD].......................................
Mr Rob Reitano, Member
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction No. 90 – nature and seriousness of offending conduct – risk of reoffending – protection of the Australian community – expectations of the Australian community – strength, nature and duration of ties to Australia – impediments to removal – whether deteriorating relationship with New Zealand constitutes an other consideration – decision affirmed.
LEGISLATION
Drug Misuse and Trafficking Act 1985 (NSW), s.25(2)
Migration Act 1958 (Cth) ss. 499, 501, 501CA
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38]
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3]Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66 at [32]
SECONDARY MATERIALS
Direction No. 90 – direction under s 499 – visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Made 8 March 2021/commenced 15 April 2021
REASONS FOR DECISION
Mr Rob Reitano, Member
11 February 2022
Lyrick Bristowe (Mr Bristowe) first came to Australia on 10 December 2004 when he was a little over five and one half years of age. He has lived in Australia since then as the holder of a Class TY Subclass 444 Special Category visa with his most recent visa issued to him on 23 April 2014 (visa).
On 8 August 2019 Mr Bristowe was convicted and sentenced to 2 years and 9 months imprisonment for an offence against s.25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) which involved him in having supplied not less than a commercial quantity of methylenedioxy methylamphetamine (more commonly known as ‘MDMA’ or ‘ecstasy’)
On 26 September 2019 Mr Bristowe was serving his sentence full time at the South Coast Correctional Centre in New South Wales. On that day a delegate of the Minister cancelled the visa because the delegate was satisfied that Mr Bristowe failed the character test in the Migration Act 1958 (Cth) (Act) because he had been sentenced to a term of imprisonment of 12 months or more. Together with the fact that Mr Bristowe was in a custodial institution serving that sentence full time meant that the delegate was required by s.501(3A) to cancel the visa. The same day the delegate invited Mr Bristowe to make representations to the Minister about revoking the decision to cancel the visa.
On 14 October 2019 in accordance with that invitation and consistent with the relevant regulatory requirements Mr Bristowe made representations to the Minister about why the decision cancelling the visa should be revoked. In doing so Mr Bristowe satisfied one of the criteria necessary for the Minister, and ultimately the Tribunal, to exercise the power to revoke the decision to cancel the visa, a matter to which I will return.
On 13 February 2020 a delegate of the Minister decided that the decision to cancel the visa should not be revoked.
On 21 February 2020 Mr Bristowe made an application to the Tribunal asking the Tribunal to review the delegates decision refusing to revoke the decision cancelling the visa.
I have decided to affirm the delegate’s decision refusing to revoke the cancellation of the visa and what follows are my reasons for that decision.
THE ISSUES
Two things condition the exercise of the power to revoke the decision to cancel the visa: first, is the requirement that Mr Bristowe made representations in accordance with the Minister’s invitation to do so; and second, is the requirement that the Tribunal be satisfied that either Mr Bristowe passes the character test in s.501 of the Act, or that there is another reason why the decision cancelling the visa should be revoked.
I have found that Mr Bristowe made representations in accordance with the Minister’s invitation.
I am satisfied that Mr Bristowe fails the character test in s.501 of the Act because he has a ‘substantial criminal record’ as a result of his sentence to two years and nine months imprisonment which is a sentence to a term of imprisonment greater than 12 months, and that is one basis upon which a person fails the character test in s.501 of the Act.
It follows that the only basis upon which the decision cancelling the visa can be revoked, and the issue in this review, is whether there is another reason why the decision cancelling the visa should be revoked.
IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION OF THE VISA?
The Tribunal must consider whether it is satisfied that ‘there is another reason why the original decision [the decision to cancel the visa] should be revoked’. The issue requires identification of a rational or reasoned basis or justification for undoing the visa cancellation. It requires an examination of the matters that weigh for and against revoking the decision cancelling the visa. Once those factors are assessed and evaluated a conclusion must be arrived at as to whether the cancellation should be revoked, and if the conclusion is that it should be the Tribunal is obliged to act on that conclusion.[1]
[1] Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66 at 32]; Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38]
Section 499(1) of the Act permits the Minister to give written directions to any person or body having functions or powers under the Act about the performance of those functions or the exercise of those powers. The Tribunal is such a body and is required by s.499(2A) of the Act to comply with any such written directions in performing its functions and exercising its powers.
The Minister has issued Direction 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction). The Tribunal is required to comply with the Direction in performing its functions and exercising its powers in making decisions under s.501CA(4).
The Direction contains principles which provide a framework to decide whether a decision to revoke a cancellation of a visa should be made, and ‘considerations’ that a decision-maker must address and consider, where they are relevant.
The principles inform the matters to be considered by a decision-maker in deciding whether to revoke a mandatory cancellation under s.501CA. The principles provide:
1Australia 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.
2Non-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.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
4Australia 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.
5Decision-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.
The Direction has two categories of matters the Tribunal is required to consider: ‘primary considerations’ and ‘other considerations.’ The ‘primary considerations’ are:
·the protection of the Australian community from criminal or other serious conduct;
·whether the conduct engaged in constituted family violence;
·the best interests of minor children in Australia; and
·the expectations of the Australian community.
The ‘other considerations’ include:
·international non-refoulement obligations;
·the extent of impediments if a non-citizen is removed from Australia;
·the impact on victims;
·links to the Australian community including the strength, nature and duration of ties to Australia and impact on Australian business interests.
The class of ‘other considerations’ is not closed so that other things may be considered as ‘other considerations’ in particular cases. Two additional ‘other considerations’ in this matter have been advanced. The first refers to the possible adverse impact of ‘Australia’s international reputation and standing in the world arising from ‘the growing body of material, in particular, that demonstrates that removing New Zealand citizens from Australia has adversely impacted (and continues to impact) Australia’s relations with its neighbouring ally.’ The second refers to a recent and developing relationship, although as will be seen I have considered that as part of the consideration that concerns links to the Australian community, even though it could be considered separately. I will deal with both of them more fully in due course.
Neither Mr Bristowe or the Minister suggested that the considerations dealing with conduct constituting family violence, the best interests of minor children in Australia, international non-refoulement obligations, the impact on victims, or that part of links to the Australian community so far as the impact on Australian business interests is concerned were relevant in this review. I am satisfied, having considered them, that those considerations are not relevant such that they have no impact upon the determination of this issue about whether there is another reason to revoke the decision cancelling the applicant’s visa.
The Direction says that: ‘primary considerations should generally be given greater weight than the other considerations.’ The use of the word ‘generally’ contemplates that there may be circumstances where an ‘other consideration’ may outweigh a ‘primary consideration’. That question is left to the Tribunal in evaluating the circumstances of the particular case.
The Direction requires the decision-maker to ‘take into account’ matters referred to in the Direction as ‘considerations’ where they are relevant to the decision and, in doing so, lays down specific aspects of the matters that must be taken into account.
The obligation to take matters into account carries recognition of the fact that there must be ‘real consideration of the circumstances of the people affected … confronting what is being done to people.’[2] The need to consider matters is important because the nature of the decision is one that has potentially grave consequences for an individual: namely, their potential exclusion from Australia. The far-reaching serious and potentially lifelong ramifications, to both the individual visa holder as well as the Australian community, of such a decision inform the need to consider matters earnestly, carefully, and deliberatively.
[2] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3].
I will consider the matters that are relevant to each of the relevant ‘primary’ and ‘other considerations’ in turn and in doing so, will deal with the facts that are relevant to each of them.
PROTECTION OF THE AUSTRALIAN COMMUNITY
The Direction requires that I ‘keep in mind that the [Australian] Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens’. I am required to have ‘particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community’.
The Direction requires that I must also give consideration to two particular matters: ‘the nature and seriousness of the non-citizen’s conduct to date’, and ‘the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct'. I will consider each of the matters separately although recognising, as the Direction does, that they are both part of the same consideration which focuses attention on the protection of the Australian community and its members.
THE NATURE AND SERIOUSNESS OF THE CONDUCT
I am required to consider ‘the nature and seriousness of the non-citizen’s criminal offending or other conduct to date’. This involves the need to consider ‘criminal offending’ and ‘other conduct’. Again, it is convenient to deal with each of them separately, although it will be necessary to bring them together in due course.
The nature and seriousness of the criminal conduct commences with several offences that Mr Bristowe committed when he was a child, about 17 years of age. Those offences were committed over a period from about the middle of 2016 until late 2017. Those offences were not serious offences, especially having regard to the sentences imposed: bonds, probation periods and relatively small fines. They were generally offences committed against property, not involving violence. There is one offence that involves having a knife in a public place that might be potentially serious but the facts relevant to it do not disclose anything that would suggest the knife was to be used for any particular purpose. It is, however, significant that that offence was the second time as a child Mr Bristowe had been pulled up for having a knife in his possession. The first time he received a caution and there was nothing recorded in his criminal history. These early offences generally suggest a pattern of behaviour inconsistent with a respect for the law. They give the later, more serious, criminal offending and other conduct some context.
On 28 March 2017 Mr Bristowe was dealt with for two offences involving the possession of prohibited drugs and he was placed on a bond for 12 months.
On 31 October 2017 Mr Bristowe was dealt with for another offence of possessing a prohibited drug by way of conviction and a fine of $400.
On 4 December 2017 Mr Bristowe was dealt with for an offence of not ever being licenced whilst driving a vehicle on a road (first offence). He was convicted and fined $800.
On 7 July 2018 two of the earlier offences involving possession of prohibited drugs for which Mr Bristowe had been placed on a bond were called up and he was fined $100 each for them. It is not clear, but this appears to have been the result of Mr Bristowe committing another offence at about that time, which involved the second instance of him driving a vehicle when he did not have a licence. As will be apparent by now the fact that he had been pursued for a particular offence before did not seem to have much deterrent effect so far as committing the same offence again was concerned. Mr Bristowe was, on this occasion, fined $600 and disqualified from driving for three months as a result.
On 8 August 2019 Mr Bristowe was dealt with for the offences that led to the cancellation of his visa. In particular, he was dealt with for the offence of supplying a prohibited drug in a commercial quantity which was an offence because of s.25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The precise offence was that ‘between 7 June 2018 and 19 July 2018, in St Helens and Burwood in the State of New South Wales, did supply an amount of a prohibited drug, namely 258.05gms of 3, 4 – methylenedioxy-methylamphetamine being an amount not less than the commercial quantity applicable to that drug’.
The circumstances of the offending arose from an undercover police operation during which an undercover police officer contacted by phone, met, and purchased, or on the last occasion agreed to purchase, drugs from Mr Bristowe. There were five occasions between 7 June 2018 and 8 July 2018 with the last occasion involving an agreement to supply rather than an actual supply. The amounts were in the order of 55 grams on each occasion except the first occasion involved only 6.45 grams and the last occasion an amount of 84 grams was agreed to be supplied. The total amount involved was 258 grams.
The detailed circumstances of each transaction were in the agreed statement of facts which was tendered to the District Court when the plea was entered. Those facts included admissions that were made by Mr Bristowe concerning his supply to the undercover police officer which involved the actual supply of 164.05 grams of methylenedioxy-methylamphetamine over the period for $12,050 and an agreement to supply a further 84 grams for $5250. Mr Bristowe also said in those facts that he had only kept $1500 to $2000 of the money and that he had attempted to push the price up for the final transaction as it was his intention to rob the undercover police officer.
Mr Bristowe was sentenced to two years and nine months imprisonment with a non-parole period of one year and six months. That offence carried a maximum penalty of a fine of $385,000 or 20 years imprisonment or both. There were other offences for which Mr Bristowe was not convicted but which were taken into account on a Form 1 during his sentencing which involved his being in possession of a prohibited drug and his dealing with less than $100,000 being the proceeds of crime.
There is no question that Mr Bristowe’s most recent criminal offending is objectively serious. The offence itself is a serious one as reflected by the maximum available sentence for offences of its kind. Although the offence did not involve violence, the admitted fact that Mr Bristowe had anticipated robbing the undercover police officer should not be passed over too quickly. Even though it did not come to pass, it was something that was relevant and considered in the sentencing process. The seriousness of the offending was reflected by the lengthy custodial sentence imposed, two years and nine months. The fact that a custodial sentence was imposed at all naturally enough reflects an objectively serious offence.
Next, looking at the history of Mr Bristowe’s criminal offending, there has been a dramatic increase in its seriousness since it started in mid-2016. His offending spans the period of about two or three years and involves the commission of more than a dozen offences. His offending commenced with what appear to be relatively low-level property related offences early on which escalated into very serious drug dealing by the middle of 2018.
Alongside the repeated offending and its increasing seriousness is the fact that over a period of a few years Mr Bristowe was being brought before courts and being sentenced for offences receiving non-custodial sentences involving bonds, fines, and the like. Even having been convicted and penalised he committed like offences again such as possession of prohibited drugs and driving even though he had never held a licence. His persistent offending was undeterred by non-custodial punishment and a fairly abject failure to respect the law. The nature and seriousness of his criminal conduct to date is very serious.
It should not be thought that Mr Bristowe’s offending so far as it involved the supply of drugs only involved the circumstances of his having supplied drugs to the undercover police officer over the four-week period commencing in early June 2018. In his evidence Mr Bristowe referred to the fact that in about 2015, he ran away from home. He said that it was about that time that he became a ‘dealer’ which allowed him to support his drug habit ‘for free’. He did not elaborate any further about that and how much dealing he involved himself in at that time, but it is more probable than not that it was then that he commenced supplying drugs to others.
His evidence also referred to the circumstances after the middle of 2017, when he struggled to fund his, and his then girlfriend’s, drug addiction. He listed cocaine, ice, MDMA, ecstasy and LSD as the drugs he was using that were ‘more common’. He was also using Xanax and marijuana. He referred to the fact that when he ‘could not get enough money from [his] few short periods of work [he] turned to supplying drugs to support [his] and [his girlfriend’s] habit’. He said he ‘generally’ had ‘five grams at home and I was dealing with values between $500 and $2000, which I could use to fund my own habit’.
None of the earlier ‘dealing’ or ‘supplying’ was the subject of criminal charges and so cannot be regarded as criminal conduct, but it is ‘other conduct’ of a serious kind for much the same reason as the supply offence for which he was convicted. It is not so serious as the quantities are likely to have been much smaller and not much is known about what drugs were being supplied and so on. The fact that it happened over a lengthy period and most probably on a number of occasions makes the conduct more serious.
There is also some ‘other conduct’ that is not related to the supply of drugs which concerns Mr Bristowe’s time in custody which saw him involved in three incidents, one of which has some importance. The two incidents which appear less serious involve Mr Bristowe taking the blame for having a USB drive in his cell which belonged to his cellmate which neither of them should have had in their possession, and a failure to obey a guard’s direction. Mr Bristowe explained those things and neither of them, even absent his explanation, seem to be particularly serious. They are slightly relevant to the fact that he continued to break the rules whilst in custody.
The other incident is more serious because it involved violence towards another inmate in the form of Mr Bristowe punching the other inmate to the back of the head. Mr Bristowe said in his written statement that ‘whilst he was eating his lunch, he saw someone hit one of his friends’ and he had ‘pushed the guy who hit my friend out of the way’. He said, in his statement, that this was what had been ‘checked’ on the camera. In his oral evidence he said that he ‘hit him across the head once and that was it’, agreed that he ‘punched him with [his] fist’ and that the blow was struck to the ‘back side’ of the head or the ‘back of the head’. He rejected the accuracy of what was in is statement in dealing with the inconsistency between the two versions of events, explaining, in effect, that he had not read or checked his statement properly before signing it. He also explained in his evidence that ‘it was just my first reaction and that was very, very stupid of me’.
In dealing with criminal conduct the Direction says that violence is viewed by the Australian Government and the Australian community as very serious. There is no sound reason to view conduct involving personal violence that has not been subject to criminal sanction as less serious. Mr Bristowe’s ‘other conduct’ is to be regarded as objectively serious. That conduct does not sit well with Mr Bristowe’s claim that he is not a violent person, nor does it sit well with a claim that his time whilst incarcerated has changed him.
The nature and seriousness of Mr Bristowe’s criminal and other conduct is very serious involving the commission of a very serious criminal offence, the supply of illegal drugs to members of the community, and a resort to physical violence.
RISK TO THE AUSTRALIAN COMMUNITY AND INDIVIDUALS OF REOFFENDING
Next, it is necessary to consider the nature of the harm to the Australian community and individuals should Mr Bristowe reoffend or engage in other serious conduct and the likelihood of Mr Bristowe reoffending or engaging in other serious conduct. I will consider these in turn.
It was accepted by Mr Bristowe that were he to engage in similar drug related criminal conduct it would ‘subject members of the Australian community to very serious harm’. The same kind of harm would follow from the other drug related supply conduct that Mr Bristowe engaged in.
The personal and social ramifications for members of the community of the use and supply of illegal drugs such as MDMA and ecstasy is well known. While those participating in the use of illegal drugs are often physically and mentally injured, institutionalised, and socially isolated as a result, these ramifications are not only felt by the participants themselves. These effects on participants can include serious, even catastrophic, consequences. Their families and friends are often left to deal with the aftermath. It also affects very many others who are, more often than not, innocent victims of crimes associated with drug use which involve personal violence following from drug use; or death or serious injury from things like motor vehicle accidents and the like. The distribution of illegal drugs is fairly described as a scourge on the community. The likely harm to members of the community and the community of repeat offending is likely to involve significant harm of a physical, emotional and psychological kind.
There are also serious consequences that follow from the harm that is likely to follow from Mr Bristowe engaging in conduct involving punching people in the head or similar violent conduct. It involves the potential for serious physical and psychological harm for individual members of the community.
The harm to the community and members of the community associated with repeat or future similar criminal or other conduct is considerable.
Next, I must assess the likelihood of Mr Bristowe reoffending. In doing so I am required to take into account information and evidence about the risk of reoffending, and any evidence of rehabilitation achieved by the time of this decision. This is a complex issue that involves a multiplicity of variables. In this case I have some assistance from the expert evidence of a psychologist who has some experience in assessing the prospects of repeat offending. I will deal with the matters that I consider to be important in providing some help in assessing the prospect of Mr Bristowe involving himself in criminal or other serious conduct again before turning to the expert evidence.
First, Mr Bristowe has a reasonably large number of criminal offences and other conduct of a serious kind that suggests that he has little respect for lawful authority. Having been brought before Courts on very many occasions he continued to offend despite having his wrongdoing brought to his attention. Some of his offending involved committing the same offences repeatedly such as those involving his possession of illegal drugs and his driving whilst never having been licenced.
Second, it is relevant that it appears that his criminal offending until he was incarcerated had been leniently dealt with, such that it may not have had as significant a deterrent effect as a stint in prison might have. I should give some weight to deterrence as is one of the objectives of imprisonment, which I will refer to again in a moment. His earlier appearances in Court would have ordinarily been expected to have had at least some deterrent effect, but they did not stop him from re-offending.
Third, it is no matter of technicality that whilst in the controlled environment of prison Mr Bristowe has engaged in conduct contrary to the rules applying in such institutions; especially the one instance involving serious misconduct involving punching someone to the head. That conduct suggests that being incarcerated has not really changed much for Mr Bristowe and his lack of respect for rules. The fact that Mr Bristowe later saw that conduct as ‘very, very stupid’ does not do much to rationally explain why it happened in the first place and, given his history of illegal conduct there can be little confidence that it will not happen again.
Fourthly, the fact that Mr Bristowe made early admissions and pleaded guilty in Court count in favour of a conclusion that he is remorseful for his wrongdoing and accepts responsibility for it. The psychologist who I refer to later expressed that view as well. The difficulty with weighing his early admissions too heavily in his favour is that the writing was most probably on the wall given the undercover police operation and the things that were seized on the execution of the search warrant. Nonetheless it is a factor that counts against the likelihood of repeat offending, but not heavily so.
Fifth, there is the significant deterrent effect of having been incarcerated and then detained for a significant period. Further, Mr Bristowe has had his visa cancelled by the delegate and by the Tribunal, albeit that was set aside on judicial review. Those events together with a further hearing before the Tribunal are likely to bring starkly to his attention the reality of having to leave Australia if he offended again. It should not be assumed that that has not had some deterrent impact. It is a factor that should be given some weight in the evaluation of the likelihood of Mr Bristowe reoffending in future, but it is not so weighty as the fact of his past serious offending which suggests a real risk of offending again in future.
Sixth, there are the things that will be available to Mr Bristowe on his release that will count in his favour so far as social support is concerned such as the presence of his family, especially his mother, step-father and grandparents and some of his friends who are likely to provide him some support. The presence of such support needs to be approached cautiously as it does not seem to have done much to help Mr Bristowe when he was offending before his incarceration despite a history of offending over a period of a few years. It is something though that counts against the likelihood of reoffending
Seventh, the other ‘pro-social’ factor often associated with some capacity to avoid re-offending is the availability and maintenance of stable employment. Despite the fact that Mr Bristowe has available to him employment as a pick packer or assistant manager with his friend Mr Boutros’ company; given his employment history, or rather the lack of it which I deal with in more detail later, I cannot put much reliance on that. To do so requires an ignorance of Mr Bristowe’s lamentable record in holding down employment for more than a few months, even when he was in prison, and a complete acceptance of Mr Bristowe’s self-serving evidence about his intentions in that regard. I do not consider it sound to proceed on a basis that Mr Bristowe is likely to be employed on a full time or even regular basis for any significant period if he were released into the Australian community. I accept Mr Bristowe’s statement that he believes he is more mature than before he went to prison and his life has moved on, but those self-serving statements are difficult to accept in the absence of anything that would confirm them. There are some things such as punching another inmate in the head and changing his mind about his future employment plans from traffic control, to pick packing with a view to eventually having an ecommerce business of his own, that suggest not much has changed.
Lastly, I need to consider the expert evidence of Dr Yoxall who is a psychologist who prepared a report dated 16 April 2020 that was directed to a consideration of Mr Bristowe’s risk of re-offending. Dr Yoxall applied the Level of Service Inventory – Revised (LSI - R) which has as its ‘primary goal’ the identification of ‘dynamic risk/needs variables that can be potentially changed so as to reduce the risk of reoffending’. As its name suggests the inventory is directed to determining ‘the level of service’ required for an offender rather than the risk of reoffending for the purpose of an application like this one. Nonetheless it is often used to assess the risk of reoffending with higher scores being ‘indicative of those offenders with increased risk of re-offending and increased need for intensive intervention’ so that it offers some assistance in determining the likelihood of reoffending for present purposes.
Dr Yoxall said in her written report:
On review of Mr Bristowe (sic) records and what he revealed in interview, it appears that he is motivated to engage in recommended treatment to ensure that his risk of general reoffending is reduced. His score on the LSI – R was aa (10.8th %ile) and is related to static (historical and unchangeable) risk factors, dynamic (changeable risk factors including a history of Alcohol misuse, North American norms are commonly used in Australia for this measure. A score below 13 indicates a low risk of general reoffending and a low level of general rehabilitation needs. In the normative sample, approximately 11.7% who scored in this range reoffended (and were re-incarcerated) within 12 months.
Dr Yoxall in her oral evidence said that she had made some arithmetic errors in her report such that Mr Bristowe’s score should have been ‘at a percentile of 43.9, which means that rather than 89 per cent of individuals scoring above him in the normative sample around 56 per cent scored higher than him’. From this it followed that ‘it moves him into the category just on the cusp of moderate of low risk – of low moderate risk to moderate risk’. Fairly viewed that was Dr Yoxall’s opinion about the risk of Mr Bristowe reoffending.
Dr Yoxall made a number of findings at the conclusion of her report that were relevant to the assessment of Mr Bristow’s risk of reoffending. She said:
3.In my view Mr Bristowe’s offending history is inextricably entwined with his substance misuse. As the severity of his dependence increased, so too did the severity of his offending he engaged in, primarily because the key motivation for the offending was access to money or drugs for personal use.
4.Mr Bristowe has now been in a controlled environment (remand, prison, and detention) for 21 months, and as a result of this, has been abstinent for a sustained period of time.
5.On assessment Mr Bristowe appeared to present with genuine remorse and he appears to accept responsibility for his offending. It would appear that his period of time in a controlled environment has been of benefit to him in that he has developed increased personal insight.
6.However to date Mr Bristowe has not engaged in evidence based drug rehabilitation, nor has he engaged in any substantial learning, either from a vocational perspective or from a personal development perspective. A key reason for this is limited access to same from prison or detention.
7.At the current time Mr Bristowe’s risk of reoffending, according to established methods of prediction, is low. This is primarily because he had stable upbringing, he is still young and his offending occurred in the context of a methamphetamine dependence, which is now in remission (albeit a controlled environment) and can be treated
8.Even though the risk of re-offending is low it is directly linked, and heavily dependent upon his ability to maintain remission from drug dependence, if and when he returns to the community. To this end, it is my view that Mr Bristowe requires the following rehabilitation and intervention:
a.A residential drug rehabilitation program for treatment of methylamphetamine dependence and poly substance abuse including addressing of life skill deficits identified above;
b.Vocational upskilling to increase likelihood of obtaining and maintaining employment. This may include completion of Grade 10 education and industry based qualifications;
c.Continued support, monitoring and supervision, either informal (e.g. family members or more formal) (The underlining is my own)
As I have already noted Dr Yoxall said in her oral evidence that she now considered the risk to be ‘low to moderate/moderate’ rather than ‘low’ in light of her calculations and the actual outcome score. This means that when she refers to the ‘low risk’ of reoffending in her report it necessarily needs to be modified to ‘of low moderate risk to moderate risk’.
Dr Yoxall emphasised in her oral evidence:
…but I still am of the very firm view that that his risk of re-offending is inextricably linked to his risk of relapse to drug dependence and that rehabilitation – successful rehabilitation, if that is achieved, would result in a low risk of reoffending but, to the contrary, a relapse to drug dependence would result in a significant increase in the risk of reoffending. (The underlining is my own)
Dr Yoxall explained that her preference or recommendation for rehabilitation for Mr Bristowe was a residential drug rehabilitation programme because it was her opinion ‘that the residential drug rehabilitation program is the best chance of success for somebody with his range of rehabilitation needs’ or ‘more likelihood of success’. Notwithstanding her preference she indicated that other forms of formal rehabilitation such as ‘outpatient programs, day programs, one-on-one counselling group programs, all within various frameworks, evidence-based frameworks’ if engaged in and adhered to would reduce the risk of re-offending.
Dr Yoxall’s report and her oral evidence was not such that would allow a conclusion to be drawn that she considered time, even a long time, in a controlled environment such as in prison or in detention would be a substitute for rehabilitation. This is unsurprising given that the things she identified at paragraph eight in her summary and conclusions are fairly to be read as things that would equip Mr Bristowe to deal with his drug dependence in the community. Ideally rehabilitation intervention that would reduce Mr Bristowe’s risk of reoffending would require, in shorthand terms: treatment, training and support.
I accept Dr Yoxall’s opinion that Mr Bristowe’s risk of reoffending is in the ‘low moderate risk to moderate’ range. I also accept her evidence that should he resume his drug dependence that risk will be increased, and that engagement and adherence to rehabilitation will see his risk of reoffending reduced.
There are things that point in favour of Mr Bristowe engaging in rehabilitation: he has said he will do so, he attended a couple of Narcotics Anonymous sessions whilst in prison (although his evidence suggests they were of limited value), he engaged in a couple of counselling sessions whilst in detention in April 2020, and he has been deemed ‘appropriate for treatment’ by a reputable drug rehabilitation service. He has also undertaken some online courses whilst in detention in Depression Management, Drug and Alcohol Abuse, Stress Management and Workplace Drug Use which, apart from what he appears to have learned from those courses, also demonstrate some commitment to rehabilitation, although it is unclear that they would satisfy the kind of rehabilitation programs that Dr Yoxall had in mind.
I am required to have regard to the ‘rehabilitation achieved by the time of decision’. Mr Bristowe has undertaken the courses I have referred to. His statement recounts some of the details about those courses. Mr Bristowe outlined in his evidence what the courses covered. I cannot form any firm conclusion about what those courses achieved for Mr Bristowe, but they demonstrate something of a commitment by Mr Bristowe to rehabilitation, albeit limited because of the closeted environment of detention,.
Nonetheless it is not possible to make any firm or definite assessment about his likely engagement, continued engagement, adherence and responsiveness to rehabilitation such that it might ultimately be successful such that I would assess the risk as having been significantly reduced. A great deal depends on significant unknown factors about which I am not prepared to speculate. Dr Yoxall had possession of very many of the facts that are available to me and still needed to qualify her opinion by the words ‘if that is achieved’. The passage of time and the things that have happened since do not put me in a much better position to assess that contingency albeit that there are indications that are favourable. I will take those indications into account but given that they involve some degree of speculation about the future I am unable to give them significant weight.
The other factors identified by Dr Yoxall in her written report, vocational upskilling and continued support, monitoring and supervision need to be considered as well. Mr Bristowe said at one time he wanted to pursue training and work in traffic control. There is no evidence that Mr Bristowe has undertaken any training or taken any other steps to pursue that which is at least partly explained by his incarceration and detention, but those things would not have prevented him from looking into what might be available. Dr Yoxall considered that would be consistent with her statements about vocational upskilling.
Mr Bristowe in his most recent statement said he had been offered employment with his friend Mr Boutros as a pick packer which he would take up if he was released into the community. That seems a little at odds with Dr Yoxall’s recommendation so far as vocational upskilling is concerned. Mr Bristowe’s employment history suggests that he is unlikely to hold down employment for any significant period upon his release into the community. Mr Bristowe indicated that it was his intention if released to undertake an online course in ecommerce. This appears to be the extent to which he would pursue vocational upskilling. Given his fairly limited success in maintaining employment and any history of him undertaking vocational courses of any kind it is difficult to put much store in any likelihood that he would complete such courses. The generality of the evidence also makes it difficult to consider some that would really eventuate.
On the other hand, the evidence of his family and friends is that they will offer him support. He has accommodation available with his mother and stepfather upon his release. Those things need to be approached cautiously as that network of support did not appear to help Mr Bristowe much when he was offending over the years leading up to his incarceration. The availability of that support is an important factor though because perhaps those people will be more vigilant in the new circumstances that would exist if Mr Bristowe were released into the community.
Mr Bristowe will, if permitted to remain in the Australian community, also have the support of his new partner who he met online. When he gave evidence late last year, he and his new partner had been in a committed relationship for about six months. I will say more about his partner later, but for now I should deal with the likely support and direction that it is claimed Mt Bristowe will receive from her such that it will assist him and deter him from offending again. On the basis of the relative recency of the relationship, and to some extent its online character, it is not possible to place a great deal of store in the suggestion that the relationship will give him a new direction and commitment away from drugs such that it will deter him from criminal offending. For now, that might be so, but what the future holds is very unknown. Human experience is that relationships, especially newly formed ones, are fragile things that very often come and go, such that I would not be willing to invest greatly in the prospect that things will remain as they are, especially in the unstructured world outside detention. It is not possible to make any firm finding about the likely length or duration for which the relationship might exist in future. The relationship might provide some direction if it continues for any significant period of time, but whether it does continue is, given its infancy and its lack of any ‘in person’ character to date, really nothing more than speculative. It is not possible to put any significant store in the relationship reducing the likelihood of reoffending. I do not think I should speculate about such things.
In the end the most reliable evidence is Dr Yoxall’s evidence that Mr Bristowe’s risk of reoffending is in the ‘low moderate risk to moderate risk’ range. That risk may increase should Mr Bristowe relapse into drug dependence in future and, equally, may reduce should he successfully undertake rehabilitation. It may be, as Mr Bristowe suggests, that the risk has marginally reduced given his continued abstinence from drugs whilst incarcerated and in detention but in my assessment, in the absence of other evidence, the difference would only be likely to be marginal. It may also be slightly reduced by the deterrent effect of him being incarcerated and in detention for so long, having been through two Tribunal hearings and an application to the Federal Court, the presence of his new partner upon his release and his most recent offer of employment, but I do not think those things are such as to substantially alter the opinion of Dr Yoxall.
That is because the factors that Dr Yoxall considered would change the risk of reoffending were rehabilitation, vocational upskilling and support. It was those things that Dr Yoxall expressly referred to as the key things that would regulate or change Mr Bristowe’s likely risk of reoffending which she assessed at that time as in the ‘low moderate risk to moderate risk’ range. Since Dr Yoxall’s report a little has been done by way of rehabilitation online with the prospect of some being undertaken if Mr Bristowe is released into the community, there has been no vocational upskilling and it is unclear if any is even in prospect, and the support available to Mr Bristowe now includes, in addition to those who were around before he went to prison, his new partner. If things have changed in line with Dr Yoxall’s recommendations, they have only marginally done so. Dr Yoxall’s opinion is the best available evidence available as to the likely risk of re-offending.
In all the circumstances in evaluating these matters, I consider that there is presently a real likelihood of Mr Bristowe reoffending. I consider that the risk of reoffending is a low to moderate risk. I am unable to speculate about the prospects of Mr Bristowe’s reducing that risk by successfully undertaking rehabilitation.
Mr Bristowe’s criminal offending that led to the cancellation of his visa was serious. His other criminal offences are less serious. His other conduct involving the supply of illegal drugs to members of the community and so far as it involved him punching another inmate in the head was very serious. The harm to the community and to individuals should he reoffend is significant in terms of physical and psychological wellbeing and carry with it an economic cost as well. Mr Bristowe’s likelihood of reoffending is in the low to moderate range. In the circumstances I consider that the protection of the Australian community weighs heavily against revocation of the decision to cancel the visa.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
I must give weight to the expectations of the Australian community, which are the expectations that people who are allowed to live and be in Australia will obey Australian laws and that where someone who has been permitted to stay in Australia:
…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.
In some cases, this will mean that not revoking the cancellation is:
…appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the non-citizen should not … continue to hold a visa.
I must decide what weight is to be given to the community’s expectation of not revoking a decision to cancel a visa ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.’[3] This involves an evaluation about what weight this factor should be given in the particular circumstances. I am not required to determine the community’s expectation as the normative position is established by the Direction itself. This factor will always weigh against revocation. The issue is what weight it should be given.
[3] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [77] (per Charlesworth J).
A convenient starting point for addressing this consideration is the principles to which I referred earlier. Having engaged in criminal and other serious conduct the principles mean that Mr Bristowe should expect to have forfeited the privilege of staying in Australia. The nature of the criminal offending and the other conduct, as I have observed, is very serious and so the community would expect that the decision cancelling the visa would not be revoked.
Mr Bristowe has been in Australia from a young age having arrived here when he was a little over five years of age. He has been in Australia most of his life, that is about 15 years compared to having spent the first five or so years of his life in New Zealand and having been back to New Zealand since his arrival in Australia for various periods totalling approximately 16 months. His criminal offending and conduct commenced as a youth when he was about 16 or 17 years of age which was many years after his arrival in Australia. All of his criminal offending and other conduct has taken place in Australia. His criminal offending continued over about three years and his other serious conduct included one serious incident whilst he was incarcerated.
Even though he has been in Australia a long time, his contribution to the Australian community through employment is very limited having worked as an assistant in cabinet making for a week in 2015, with a roofing company for two or three months in 2017 and then as a pick packer for three or four weeks in the middle of 2017. He worked for a short time packing rations whilst in prison but stopped as he wanted to do something ‘hands on’. He also worked as a volunteer at Street University, a youth centre, for a period in 2017. It is fair to say that his positive involvement in the Australian community and his contribution over his long time in Australia is fairly limited. He has made some contribution to the life of his grandparents, mother, step-father and great grand-mother who all live in Australia.
Several other matters that would cause the Australian community to be less tolerant of Mr Bristowe’s offending include: the fact that he was given many ‘chances’ by way of bonds, fines and the like rather than more serious punishments before he committed his most serious offences that led to his incarceration; the large number of offences he has committed; the fact that his offences and conduct involved drug supply; the fact that he punched another inmate in the head whilst incarcerated; and the fact that in my assessment there is a low to moderate risk that he is likely to offend again.
I am satisfied that the expectations of the Australian community weigh against revocation because the offending is so serious. Although I consider that Mr Bristowe’s arrival in Australia as a young child and his presence here for most of his life moderate the weight to be given to this consideration, I do not consider that they do so significantly. This is because of the seriousness of the offending and other conduct, the real possibility of repeat offending, and the lack of any significant contribution to the community during Mr Bristowe’s time in Australia. This consideration weighs firmly against revocation.
EXTENT OF IMPEDIMENTS IF REMOVED
I am required to consider the extent of any impediments that confront Mr Bristowe in establishing and maintaining a basic living standard for himself in New Zealand. The basic living standard referred to is that which is available to other citizens of New Zealand. I am required to consider an applicant’s age, health, language and cultural barriers, and any social, medical, and economic support that may be available.
Mr Bristowe is 22 years of age. He suffers from asthma for which he takes Ventolin. The evidence suggests he has an addiction to illicit drugs. Mr Bristowe accepts that New Zealand has a health care system and that there is a basic system of welfare available for its citizens. The level of health care and social welfare support that Mr Bristowe will have available to him in New Zealand is reasonably likely to be much the same as what is available to him in Australia. It will be commensurate to that available to other citizens. Mr Bristowe will more likely than not have available to him health and welfare services to accommodate his needs and deal with his health issues which include his drug addiction.
Mr Bristowe accepts that there would be no substantial language or cultural barriers associated with him returning to New Zealand. The lack of those kinds of barriers removes some significant impediment that might exist for him re-establishing himself.
Mr Bristowe says that the only people who have supported and loved him live in Australia. He says he is not close to any family members in New Zealand and has not spoken to them for many years. He says he knows some people in New Zealand but they will not be able to offer him support anything like what is available to him in Australia. I certainly should not speculate about what support might be available to him. He says he will have difficulty supporting himself in New Zealand, he has no job there and he does not see a future for himself in New Zealand, that Australia is ‘all [he] knows’ and that it will be very hard for him emotionally if he were to return to New Zealand. .
Mr Bristowe is likely to suffer some psychological and emotional difficulties as a result of being returned to New Zealand. There is no evidence that would allow any firm finding to be made about what the reach of those difficulties will be in his particular circumstances but again I think it is reasonable to proceed on the basis that he will have some difficulties in those respects. There are significant factors that run in his favour so far as language, culture, health and social welfare systems, together with his relatively young age. Those things are all factors that lead to a balanced conclusion that whilst things may be difficult, especially emotionally and psychologically, he will be able to establish himself and maintain a basic living standard commensurate with that of other New Zealanders because of the significant factors I have identified above that will assist him in the process of establishing and maintaining his life in New Zealand. There is no denying that things are likely to be difficult, and for that reason this consideration weighs in favour of revocation.
This consideration weighs moderately in favour of revoking the decision cancelling the visa
TIES TO THE AUSTRALIAN COMMUNITY
I am required to consider Mr Bristowe’s links to the Australian community. There are two things that need to be addressed: the strength, nature and duration of ties in Australia, and the impact on Australian business interests. As I have observed earlier there is nothing that suggests that Australian business interests are relevant, so I do not consider it further.
First, I must consider the impact of any decision on Mr Bristowe’s immediate family members in Australia who are Australian citizens, permanent residents or people who have a right to remain in Australia indefinitely. The immediate family members concerned in this case are Mr Bristowe’s grandmother, grandfather, mother, stepfather and great grandmother. They are all residents of Australia. In his evidence Mr Bristowe referred to a further nine uncles, aunts, great uncles and great aunts who he has ties to in Australia. The evidence supports a conclusion that Mr Bristowe has a close network of family in Australia. I accept that those family members will be adversely affected, in particular emotionally so, by any decision that results in Mr Bristowe returning to New Zealand.
Second, I must consider how long Mr Bristowe has lived in Australia including whether he arrived in Australia as a young child. I should give this consideration ‘less weight’ where the offending started ‘soon after’ arrival in Australia and ‘more weight’ where ‘time… has [been] spent contributing positively to the Australian community’. I must also consider the strength, duration, and nature of familial and social links with Australian citizens, permanent residents, and others entitled to remain in Australia indefinitely.
Mr Bristowe has been in Australia since December 2004, a period of a little over 17 years. He arrived as young child when he was five years of age. He did not commence his offending until he had been in Australia for about 11 years so it cannot be said that his offending commenced ‘soon after’ his arrival in Australia so less weight need not be given to this consideration on that account. Mr Bristowe has made a limited positive contribution to the Australian community because, as I earlier noted, his combined periods of employment from 2015 to 2017 amount to something like only three or four months in total. He did make some contribution to Street University which operates a youth centre. There is only slightly more weight that can be given to this consideration because of the very limited positive contribution Mr Bristowe has made whilst in Australia.
Mr Bristowe referred to some friends he had in Australia but there was no evidence about their citizenship or residency status, but it is reasonable to presume that many of his friends are Australian citizens or residents such that I should give more weight to this consideration on that account.
There was some particular evidence about Mr Bristowe’s relationship with Ms Kimiora Tiumalu (Ms Tiumalu). Ms Tiumalu is a permanent resident of Australia. The evidence is that Mr Bristowe and Ms Tiumalu are in a loving, romantic relationship. At the time the matter was heard the relationship had been on foot for about six months. They speak daily by video chat or telephone. The two met through a social media application whilst Mr Bristowe has been in detention. They have not met in person. He has met some of her relatives including her sisters, cousins, nieces and nephew as well as some of her close friends.
Ms Tiumalu lives in Melbourne. She says if Mr Bristowe is permitted to remain in Australia she will move to Sydney. She would not be prepared to move to New Zealand to continue the relationship. The prospect is that should Mr Bristowe not be permitted to remain in Australia the relationship will end. If it does not, which seems would require some reconsideration on Ms Tiumalu’s part, the two will be able to pursue their relationship in the way it started, online. It may be that in time things will become more serious and difficult decisions might then need to be made. Ms Tiumalu’s evidence suggests that is very unlikely, but things concerning relationships very often change over time.
I accept that as a permanent resident of Australia, Ms Tiumalu will suffer some emotional distress if Mr Bristowe returns to New Zealand and the relationship ends. To the extent that this aspect of the direction does not require me to consider the emotional consequences for Ms Tiumalu, because it refers to the impact only on family members, I will treat that aspect of the matter as part of a separate other consideration and accord it weight in much the same way as I accord weight to the emotional hardship presented to Mr Bristowe’s immediate family to which I have already referred. Ms Tiumalu’s suffering is no less relevant and should be given some weight.
In any event, although the nature of the relationship appears to be genuine and caring, its very short duration and the fact that the parties have not met in person means that whilst I am prepared to give the relationship some weight (whether as part of this consideration or in its own right) I do not consider that it is a significantly weighty consideration in the circumstances.
I am satisfied that this consideration considered overall weighs firmly in favour of revocation of the decision cancelling the visa albeit that it is moderated by the factors to which I have referred.
ANOTHER ‘OTHER CONSIDERATION’
The ‘other considerations’ specifically nominated in the Direction are not exhaustive so that other considerations not specifically referred to in the Direction are able to be considered. They must naturally enough bare some relationship to the object of the exercise, namely the evaluation, which is directed to determine whether there is a satisfaction that that there another reason to revoke the decision cancelling the visa.
Mr Bristowe advanced two matters as ‘other considerations’ that I should take into account. The first concerned his recently commenced relationship with Ms Tiumalu in particular having regard to the adverse effect any decision might have upon her. I have considered this as part of the consideration of his links to the Australian community. I would not give it any more weight if I considered it separately than I have attributed to it under that consideration.
The second ‘other consideration’ that Mr Bristowe suggested I should take into account was that his removal ‘from Australia could adversely impact Australia’s international reputation and standing in the world’. The foundation for that suggestion was the ‘growing body of material that demonstrates that removing New Zealand citizens from Australia has adversely impacted (and continues to impact) Australia’s relations with its neighbouring ally’.
A series of propositions which were said to be as ‘examples’, were drawn from news reports and an article which contained ‘complaints’, ‘criticisms’, statements and opinions directed at the general subject matter of the deportation of New Zealand citizens from Australia. The examples contain extracts or summaries from the reports and the article which include references to statements by Ministers in the New Zealand Government, including the New Zealand Prime Minister, to the effect that New Zealand citizens who have been in Australia for a long time and who have committed offences in Australia should not be deported or that New Zealand citizens in Australia should not be deported at all. Those things included comments by the New Zealand Prime Minister referring to the policy of deporting New Zealand citizens as ‘corrosive to our relationship’, and reports which refer to the issue as ‘straining our relationship’ and as a ‘source of tension between successive prime ministers on both sides of the Tasman’. The news reports include references to statements that the New Zealand Prime Minister recognised that ‘The Australian government is within its rights to do what they’re doing’ and that despite the fact that New Zealand held a view that was in strong disagreement with the Australian government’s it did not ‘change the fact we [referring to Australia and New Zealand] have a very strong relationship’.
The matters I have referred to in the previous paragraph highlight much of the difficulty with relying on news reports to demonstrate the possibility of there being some impact on Australia’s relationship with New Zealand arising from this single case. The reports are undoubtedly hearsay. They fairly obviously do not recount everything that was said by the relevant people quoted about the matters reported on. So far as they involve expressions of opinion or conclusions rather than actual quotes it is difficult to rely on them without knowing what was actually said, its context and about any underlying assumptions. I do not consider that it is safe to conclude much from the half a dozen news reports and the article about the prospect of Australia relations with New Zealand being impacted by what is decided in this case, especially because that in itself is a serious matter.
I do not consider based upon the news reports and the article that there is a realistic possibility that Australia’s relations with New Zealand will be adversely affected by this decision because, as the news reports and articles record, Australia has a strong relationship with New Zealand. That kind of relationship does not mean that the two countries must always agree with one another or, that from time to time they cannot express dissatisfaction, even strong dissatisfaction, with what the other is doing. The recognition that Australia is acting within its rights is an appropriate acceptance that Australia has the right to regulate its own internal affairs in determining who may come to and remain in Australia. In the words of the principles in the Direction, that ‘Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and or remain in Australia’. The article includes reference to the fact that New Zealand too lays claim to that sovereign right so far as its regulation of non-citizens is concerned.
I would not, in any event, give this consideration any significant weight if I were to weigh it in the mix. I would give it only slight weight having regard to the nature of the evidence to which I have referred to, and the principles in the Direction. The principles refer to the sovereign right of Australia ‘to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia’ and ‘the expectation that non-citizens ‘will not cause or threaten harm to individuals in the community’. The principles also refer to the ‘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’. Further, the principles refer to the expectations of the Australian community are that ‘the Australian Government can and should refuse entry to non-citizens, or cancel their visa, if they engaged in conduct . . .that raises serious character concerns’. These principles are part of the framework within which I am required to decide the matter.
In my assessment even if it could be said that there was some prospect of damage to Australia’s international reputation and relations with New Zealand, that is not a factor that I should attribute any significant weight given the object of protecting the Australian community and giving weight to the expectations of the Australian community.
I do not consider this is something on the evidence before me that I should give weight to in considering whether or not the decision to cancel the visa should be revoked. If I did ascribe weight to this consideration, it would in any event be very slight.
THE VISA CANCELLATION DECISION SHOULD BE AFFIRMED
I have found that the protection of the Australian community weighs heavily in favour of non-revocation of the visa cancellation because of the seriousness of the criminal conduct: the supply of not less than a commercial quantity of illegal drugs, as well as the other serious conduct to which I have referred, in particular, the violent conduct in punching another inmate to the head. I consider that the consequences for the Australian community and its members of repeat offending to be serious and the likelihood of repeat offending is in the low to moderate range. There is a material risk of future offending. I have also found that the expectations of the Australian community weigh firmly against revocation. The ‘primary considerations’ weigh strongly against revocation.
So far as the ‘other considerations’ are concerned, I have found that the impediments to Mr Bristowe’s return to New Zealand weigh moderately in favour of revoking the decision to cancel the visa and that Mr Bristowe’s links to the Australian community, in particular to his immediate family and to Ms Tiumalu, weigh firmly in favour of revocation of the decision cancelling the visa. I do not consider that the potential for Mr Bristowe’s removal from Australia to adversely affect relations between Australia and New Zealand is a factor that provides another reason to revoke the decision cancelling the visa, but if I did ascribe it weight, I would give it very little weight.
The ‘primary considerations’ outweigh the ‘other considerations’ so that I am not satisfied that there is another reason to revoke the decision cancelling the visa.
DECISION
I affirm the delegate’s decision refusing to revoke the decision cancelling Mr Bristowe’s Class TY Subclass 444 Special Category visa issued to him on 23 April 2014.
I certify that the preceding 116 (one hundred and sixteen) paragraphs are a true copy of the reasons for the decision herein of Mr Rob Reitano, Member
.............................[SGD]...........................................
Associate
Dated: 11 February 2022
Date(s) of hearing: 05 October 2021 Counsel for the Applicant: Dr J Donnelly Solicitors for the Respondent: Mr A Ray, CLAYTON UTZ
1
4
0