Brown (Migration)

[2023] AATA 707

Brown (Migration) [2023] AATA 707 (2 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tyson Buck James Brown

CASE NUMBER:  2214691

HOME AFFAIRS REFERENCE(S):          BCC2019/5338565

MEMBER:Denis Dragovic

DATE:2 March 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.

Statement made on 02 March 2023 at 11:13am

CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) – Subclass 444 visa – applicant has a ‘substantial criminal history’ – applicant’s presence in Australia is or may be a risk to the safety of the Australian community –criminal convictions – limited literacy and numeracy – Behaviour concern – applicant has little regard for the law – a limited prospect of rehabilitation – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 116, 359AA, 494
Migration Regulations 1994, r 2.55

CASES
EUF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 436
EVE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 729

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 January 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 444 (Special Category) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(e) on the basis that the applicant has a ‘substantial criminal history’ having been convicted of various offences including assault; contravening court orders; family violence; make threat to kill; theft/robbery; and causing damage. In addition, at the time of the decision there were other pending charges. The delegate found that the convictions show a pattern of escalation with short time frames between offending. The delegate noted that this offending occurred despite numerous dealings with Victoria Police, family violence intervention orders, community correction orders and bail conditions. Based upon this record the delegate found that the applicant has a ‘likelihood’ of reoffending and as such poses a risk to the safety of the Australian community.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 24 February 2023 to give evidence and present arguments.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   JURISDICTION

6. The applicant was notified by the Department of the decision to cancel his visa on the 7 January 2021. There is a limit of 7 working days to appeal from the day on which an applicant is taken to have been notified of the primary decision (r 4.10).

7. The applicant’s application for review was received on the 5 October 2022.

8. The applicant was notified by an officer of the Tribunal of what appeared to be an out of time application for review by way of correspondence through the Melbourne Immigration Transit Authority where he was detained at the time.

9. In response, Ms Mason of Victoria Legal Aid, notified the Tribunal that the notice informing the applicant of his visa being cancelled was defective based upon the decision in EVE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 729 and EUF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 436.

10. In reviewing the circumstances surrounding the Department’s notification I accept that it was defective. The notification was not sent in accordance with a method under s 494B of the Act, because the document was not transmitted to the last email address provided to the Minister for the purposes of receiving documents. Instead, the Delegate appears to have given the cancellation notice to the applicant by a method provided for in r 2.55, which is the last email address known to the Minister (rather than the last email address provided to the Minister). In EVE21 v MICMSMA, the Federal Circuit and Family Court declared that r 2.55 is invalid on the ground that it is inconsistent with ss 494A, 494B and 494C of the Act.

11. Therefore, the deemed receipt provision under s 494C of the Act was not engaged such that the prescribed period in which to seek review had started and as such the application may proceed to merits review.

    PROCEDURAL MATTERS

12. The applicant notified the Tribunal that he is functionally illiterate. As such a case management hearing was held to discuss with the applicant’s then representative who appeared only for the purposes of the case management hearing on how to best proceed with the matter. The case management hearing was held on the 18 November 2022.

13. No evidence was taken at this case management hearing.

14. At the case management hearing I went through with the applicant what the matter was about, why his visa was cancelled and what issues we would be discussing in the substantive hearing including explaining the grounds for the cancellation and the discretionary elements of a decision. This process included going through the Notice of Intention to Consider Cancellation and explaining to the applicant the details surrounding the Department’s decision to cancel the visa. The purpose of this effort was explained to the applicant as being due to his limited ability to read and understand the decision such that he would be able to in turn meaningfully contribute to discussions on the substantive matters without having the benefit of a lawyer as he had raised this as a concern.

15. At this case management hearing I requested the representative to arrange for a current AFP Police Check. On 6 December 2022 correspondence was received from the then representative that they would be unable to assist the applicant in obtaining an AFP Police Check.

16. Correspondence was entered into with the Department who also said that they and the Detention centre under their direction were unable to assist in obtaining an updated AFP Police Check (the one on record was dated 1 June 2020 and as will become apparent through this decision, the circumstances after that date play a pivotal role).

17. The applicant was asked to request his own AFP Police Check but due to his inability to read and write and as such request one, he was unable to provide access one.

18. The applicant requested on several occasions assistance in finding a lawyer to represent him or additional time to find one himself. Based upon the applicant’s request at the case management hearing for additional time to find a lawyer the Tribunal postponed the hearing until 24 February 2022.

19. A further postponement request was made prior to the hearing but rejected it for the reason that it appeared unlikely that the applicant would be able to find representation, his ongoing detention was in of itself a reason to progress the matter and the requirement for the Tribunal to adhere to a wide array of procedural fairness obligations.

20. At the hearing I explained the nature of an inquisitorial hearing under the Act noting that there was no need for representation and that it was my obligation to ensure that the hearing was undertaken in a fair manner and that he was made aware of the issues and the law. I emphasized that we would not be pressed by time noting that if we needed more than the three and a half hours that were booked, we would have a second hearing.

21. I emphasized that he should take his time to consider the questions and his answers and that he could request a break at any time in addition to those that I would set. I explained that it was not a court and that he could speak up or interrupt when he needed to. In explaining the circumstances of the applicant’s case, I ensured that he understood through visual cues but also by monitoring the nature and content of his answers.

22. A s376 certificate was placed on the Departmental file. The certificate is valid though it appears to have a typographical error in that it lists the two files that are covered by the certificate but when it explains the reasoning for the files being covered it repeats the same folio number. The reason for the certificate is given as being contrary to the public interest because the file, ‘contains sensitive information and identifiers regarding individuals who are not related or relevant to the visa cancellation consideration matter. The individuals have not consented for their personal information to be released for the purposes of this tribunal matter.’

23. The two documents are a list of people, including the applicant, who were ‘extracted’ from the Prison (remand) list during a week in 2019 and in the second document during a week in 2020. The list of names is not related to the applicant and is not relevant to this case. As such this material was not summarised to the applicant and it does not form a part of the reasoning in this matter.

    CONSIDERATION OF CLAIMS AND EVIDENCE

24. Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(e):

    the Minister may cancel a visa if he or she is satisfied that (e) the presence of its holder in Australia is or may be, or would or might be, a risk to:

    (i) the health, safety or good order of the Australian community or a segment of the Australian community

25. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    Does the ground for cancellation exist?

26. A visa may be cancelled under s 116(1)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. There does not have to be, any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].

    The applicant’s offending

27. In this case the applicant’s offending is at the heart of the consideration of whether he poses a risk to the health, safety or good order of the Australian community and as such I have listed it below:

SOURCE	COURT	DATE	OFFENCE	RESULT
VIC	Sunshine Magistrates Court	12/10/2018	Make threat to kill Intentionally damage property (3 charges) Commit indictable offence whilst on bail (4 charges) Contravene fam violence intervention order (6 charges) Theft Contravene a conduct condition of bail (2 charges) Unlicensed driving (5 charges) Fraud alter reg label auth/req by RSA Handle/receive/retention stolen goods Unlawful assault (2 charges) Resist emergency worker on duty Assault emergency worker on duty Intentionally destroy property Go equipped to steal/cheat Fail to answer bail	Aggregate 169 days imprisonment. Concurrent.
Handle/receive/retention Stolen goods Retention of stolen goods Forge registration label Auth/req by RSA	On each charge: Aggregate 169 days imprisonment. Concurrent. Aggregate 169 days imprisonment.
Possess methyl amphetamine	Concurrent. Aggregate 169 days imprisonment. Concurrent.
VIC	Broadmeadows Magistrates Court	08/09/2015	Contravene Community Correction Order Breach re 10/10/2013 Shop theft - less than $600 Unlawful assault	Proven Convicted and a community correction order for 15 months. Unpaid community work. Perform 150 hours of community work. This condition starts on 8/09/2015 and goes for 15 months.
VIC	Sunshine Magistrates Court	19/09/2014	Contravene Community Correction Order	Proven
VIC	Sunshine Magistrates Court	10/10/2013	Contravene Community Correction Order	Proven
Breach re 21/08/2012 Shop theft - less than $600 Unlawful assault	Convicted and a community correction order. For 15 months. Unpaid community work. Perform 60 hours of community work. This condition starts on 10/10/2013 and goes for 15 months.
VIC	Melbourne Magistrates Court	08/11/2012	Theft Unlawful assault Criminal damage (intent damage/destroy)	With conviction, fined an Aggregate of $1000.00 With conviction, fined an aggregate of $1000.00. Pay compensation $1841.00
VIC	Sunshine Magistrates Court	21/08/2012	Shop theft - less than $600 Unlawful assault	Convicted and a community correction order. For 12 months. Unpaid community work. Perform 75 hours of community work. This condition starts on 21/08/2012 and goes for 12 months.
VIC	Sunshine Magistrates Court	22/11/2011	Resist police Handle/receive/retention stolen goods Theft Drunk in a public place	With conviction, fined an Aggregate of $1000.00 Convicted and discharged.
VIC	Sunshine Magistrates Court	10/07/2009	Theft-from shop (shop steal)	With conviction, fined $400.00
VIC	Melbourne Children’s Court	01/06/2009	Robbery	Without conviction, the defendant is placed on probation for a period of 8 months to 31/1/2010
VIC	Sunshine Children’s Court	16/07/2007	Possess liquor under 18 years	Without conviction, fined $100.00
VIC	Sunshine Children’s Court	29/08/2005	Possess liquor under 18 years	Without conviction, charge found proved and dismissed. Released upon defendant entering accountable undertaking for a period of 3 months to 28/11/2005. To be of good behaviour
VIC	Sunshine Children’s Court	08/08/2005	Theft of a motor vehicle	Without conviction, adjourned to 7/8/2006, the defendant is released upon entering a good behaviour bond in the amount of $50.00
VIC	Sunshine Children’s Court	02/08/2004	Theft-from shop (shop steal) Fail to answer bail Wilfully damage property	Without conviction, Adjourned to 31/1/2005 The defendant is released upon entering a good behaviour bond in the amount of $50.00
VIC	Melbourne Children’s Court	31/10/2003	Criminal damage (intent damage/destroy)	Without conviction, charge found proved and dismissed. Released upon defendant entering accountable undertaking for a period of 3 months to 30/1/2004. The defendant is to be of good behaviour during the period of the accountable undertaking.
VIC	Melbourne Children’s Court	13/05/2003	Theft burglary	Without conviction, charge(s) found proved and dismissed. Released upon defendant entering accountable undertaking for a period of 3 months to 12/8/2003. The defendant is to be of good behaviour during the period of the accountable undertaking.
VIC	Sunshine Children’s Court	17/03/2003	Intentionally destroy property	Without conviction, charge(s) found proved and dismissed. released upon defendant entering accountable undertaking for a period of 6 months to 16/9/2003. The defendant is to be of good behaviour during the period of the accountable undertaking.

1. The NOICC also included what were then pending charges listed as the following:

Source	Court	Date	Offence
VIC	Pending charge	17/01/2020	Resist Police Officer (indictable) (3 charges) Commit indictable offence whilst on bail Fail to answer bail
VIC	Pending charge	10/12/2019	Contravene FV INTERIM IVO Contravene a conduct of bail Fail to answer bail (2 charges)
VIC	Pending charge	22/07/2019	Criminal damage (intent damage/destroy) (3 charges) Contravene FV INTERIM IVO Commit indictable offence whilst on bail Contravene a conduct condition of bail
VIC	Pending charge	14/05/2019	Recklessly cause injury (2 charges) Contravene FV INTERIM IVO Robbery (2 charges) Unlawful assault (2 charges) Intentionally cause injury (2 charges)

1. The applicant did not provide the Notice of Intention to Consider Cancellation (NOICC) to the Tribunal. As the list of convictions was contained in the NOICC and not available elsewhere in the applicant’s submissions I went through the list of his past offences summarising the key events under s 359AA. I explained that the relevance was that the material suggests that he is or may be an ongoing risk to the community as his offending has continued and escalated, and in addition that the nature of the offending may outweigh all other factors that need to be considered under the discretionary elements. I noted that this would be a reason or part of the reason for finding that there are grounds for cancellation and for cancelling the visa. I asked the applicant in the context of these past offences, what led to the offending and what makes him believe that he would stop offending in the future. I offered the applicant an opportunity to adjourn at any stage through my recitation of the offences, which he did not request.

2. The applicant entered detention in September 2022. He said that he last entered jail in 2020. The basis of this was not clear to the Tribunal as there was no record of it. He explained that he was in jail for 27 months prior to entering immigration detention. He said that he was convicted at Melton County Court on September 13, 2020. He recalled the charges were assault, false imprisonment and armed robbery.

3. He said that the armed robbery charge was dropped. He explained that the assault and the false imprisonment was with his mate. He explained that his mate refused to drive him around the corner and for that reason he assaulted his friend and forced him to drive him around the corner. I put to him that it was hard for me to understand how he could be sentenced for 20 months for forcing his friend to drive him around the corner. I asked how serious the assault was, he said that he didn’t bash him ‘that bad’. He said that this occurred just after the COVID pandemic started which aligned with his claim of being imprisoned in 2020.

4. In summary, the applicant was in prison for three stints, beginning in 2018 for 169 days, though he claims that he was allowed in and out spending a month at one period and a few days in another period. In 2019 he was sentenced to 137 days’ time served which he confirmed at the hearing and in 2020-2022 he claimed to have spent 27 months though he said that he was convicted for 20 months.

5. While I have supporting evidence in regard to the 2018 and 2019 convictions and sentences and as such accept his explanations, I am satisfied with the applicant’s credibility and find no reason for the applicant to claim to have spent more time in prison than he did. As such I also accept that he has spent the time that he has claimed in prison.

   The applicant’s intention to stop offending

6. In considering whether the applicant is a risk to the safety of the Australian community, I asked the applicant whether he would re-offend if given the opportunity to remain in Australia and if not, why not.

7. The applicant said that he would stop offending because he wants to see his daughter as he did not have a chance to know his father and he didn’t want the same to happen to his daughter.

8. The applicant said that living in Melton drags him into the drugs and criminal activity. He said that he tried to leave after one of his prison stays by moving to Queensland with his sister, but his conditions didn’t allow him to leave Victoria.

9. He described the nature of living in Melton as being hectic, meaning that that there is a lot of crime and drugs. He said that it influences him as he has lived there for years, and he gets dragged into it when he returns as he is surrounded by the friends he grew up with.

10. I asked if he were to return to Melton whether he would be dragged into criminal activities, he said ‘just being around the people, it kinda rubs off on you’. When asked how it starts, he said that sometimes his friends initiate it and sometimes its him who initiates it.

1. The applicant said that he couldn’t leave Melton in the past as he would go to work from there every day. He once moved to Deer Park and claimed not to have been in trouble during that period which aligns approximately with a period of three years when he was not known to the police, but he had to move back to Melton as his employer lived there. He explained that he has never had a driver’s licence and so he had to live close to his employer so that he could be picked up in the mornings. He reiterated that he would avoid getting back into trouble by going back to work and preferably not living in Melton, but if he had to, he would move there.

2. Regarding the contravention of the family violence order, I put to him that several times over the past decade someone has gone to the police or the court to prevent him from coming close to them. He said that it was his ex-partner’s mother who took out the orders. He said that the few times that they were breached was when he was in her vicinity, but they were not deliberate violations as his ex-partner and her mother lived close to him.

3. I asked if he has thought about ways in which he could access a driver’s licence as that seemed to be at the hub of the problems he faced. He said that he can’t as he can’t read or write. He said that when he tried to sit for the L plates test, he couldn’t complete it as he couldn’t read.  

4. I asked whether he could stay with his mother if he was released. He said that the police placed an AVO on the address of the family house. I enquired why the police would do that. He said that he doesn’t understand why they did that.

5. The applicant said that he wanted to be involved in his daughter’s life and that this would help him stop offending. Regarding his daughter, the last time he spent time with her was when she was a baby, he estimated that it was in 2016 when she was one year old. I put to him that subsequent to this for two years he wasn’t in prison and asked why he didn’t play a greater role in her life. He said that the mother of the child was on drugs and the mother-in-law wanted to take custody of child. He believes that she succeeded in this process. He said that before she had custody there were AVOs that prevented him from seeing his daughter. He believes it was the mother-in-law who initiated the AVOs.

6. When I indicated that this would be a hurdle to him resuming a role with his daughter, he said that he intends to go to court to access a right to play a role in his daughter’s life. He said that he tried to do it earlier with his lawyer, but he was advised to focus on his own criminal matters. He believes that this would have been around 2018. 

   The applicant’s past and how it contributed to his offending

7. The applicant was 8 years old when he came to Australia and shortly after because of his stepfather being abusive, he along with two other siblings were taken out of the family home by the government. His two siblings were placed into foster care while he was placed into a state home.

8. Of his two siblings who were taken out of the home, according to the applicant, his brother was deported two days before the hearing for similar character issues while his sister lives in Queensland and has not had any issues with the law.

9. The applicant explained that he subsequently became a ward of the state and was living in residential units. He wasn’t required to go to school, instead he would be taken on fishing trips or biking. As a result, he claims that he never learned to read or write.

10. He said that he saw a psychologist once when he was younger, and they put him on some medicine which he didn’t want so he didn’t go back.

11. I asked if he ever thought about going to school for adults, but he said that he never had the time as it was either that or working. In prison he said that he was never offered the opportunity to learn to read or write even though he did some courses.

12. The applicant claims that he has mental health issues. He described them as anger management, he believes it started from being bashed by his stepdad and then being put into state homes. He said that when he wasn’t in prison, he would manage it by smoking marijuana. He said during his stay in prison he got off the drugs. Subsequently, he dealt with the anger management by training in the gym.

13. The applicant has a third brother who works and has not had problems with the law. He said that the younger brother can stay out of trouble as he is their youngest brother, and they take care of him. He is the son of the applicant’s stepfather. He said that this younger brother was never bashed as he and his older brother were.

14. In considering the applicant’s circumstances I note that he has a long history of offending that began when he was 13 years old. Despite having a wide array of interventions including entering in an accountable undertaking, community corrections orders, fines and bonds, he continued to offend. The type of offending also appears to have escalated over the years. The applicant identified the trigger for his relapses as his friends and social group in Melton. Yet, despite being aware of this and having had some success in staying away from criminal activity when he was in Deer Park, he nevertheless returned. While his reason for returning is a lack of a driver’s licence, I note that he had made only a single attempt to obtain one. Tellingly, when asked how he ended up getting involved in the criminal activity he admitted that he had sometimes instigated it.

15. The applicant’s past family circumstances and his journey through state care including his lack of education has not served him well, but there is no leeway in the law to incorporate past injustices into the question of whether there are grounds for cancellation. This would be different had the applicant identified his past challenges as a source of his problems and was working to mitigate the influence they could bear on his future such as seeing a psychologist, undertaking reading and writing lessons, or seeking help to get a licence. But other than acknowledging that he has anger management issues and his strategy of going to the gym to deal with them, he has not grappled with his past and as such there is little that can weigh in his favour as an indicator that he is less likely to offend in the future and in turn be a risk to the community.

16. The applicant identified his daughter as a reason for him to stay away from crime, but as he noted, he hasn’t seen her since she was a baby, and she is in the custody of a woman who does not want him to see his child. He indicated that he wants to go through the courts to have access to some parenting rights but other than enquiring with his lawyer about it approximately five years ago, he has not taken any other concrete steps.

17. Overall, when I consider the applicant’s past offending, the repeated and escalating nature of it, noting that he has undertaken very limited efforts to break with his past and that there is little that he could concretely identify as being a driver that would change the direction of his life, I find that the ground for cancellation in s 116(1)(e) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

18. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. These are shown as itallic headings below

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

19. The applicant mentioned re-establishing a relationship with his daughter and maintaining a relationship with his mother, younger brother, sisters and other extended family as the purpose of his stay in Australia.

20. When prompted he also said that he can easily find work in Australia. He is a qualified roof tiler and has undertaken other work including truck driving, container work and plastering.  We discussed his ability to find work in New Zealand. He said that he hasn’t been there but probably could find work, though he doesn’t know as he has only lived in Australia. I noted that unemployment is low[1] and there are jobs for his skill set[2] which he acknowledged.

    [1] Stats NZ: Tatauranga Aotearoa, Unemployment Rate 3.4% Nick Brundson, ‘Labour market pressures here to stay’, March 2022 >

    The applicant’s need to remain in Australia is based upon his relationship with his family and to a lesser degree his established job network. I have considered below the applicant’s relationship with his daughter. Regarding his other family members, the applicant has a sister in Queensland who he has not seen for a while, aunts and a grandmother in Sydney whom he has similarly not seen. But he has a relationship with his siblings and mother who live in Melbourne. It is difficult to understand the nature of this relationship as the applicant has explained that the police imposed an AVO limiting his ability to attend to the home in which one of his siblings and mother live. It is concerning that there was an AVO imposed on the applicant relating to his family members, and without further information, I can only interpret it on face value which is that at some stage his relationship with one family member had fractured. Despite this, I note that his mother supported the applicant by writing his response to the Department’s NOICC which I consider to be an implicit indication of her support for him to remain in the country. On the other hand, I note that she did not attend the hearing as a witness despite it being specifically conveyed through correspondence and then explained by the Detention centre officers (see document 10757253 in the Tribunal file) to the applicant that she can attend.  When considered overall, I place some weight against cancellation based upon the extent of his relationship with his mother and less so with his other family members.

    The extent of compliance with visa conditions

21. No conditions were imposed on the applicant’s visa. As such this consideration is neutral and I place no weight either for or against cancellation.

    Degree of hardship that may be caused to the applicant or his family (financial, psychological, emotional or other hardship)

22. The applicant has limited knowledge of New Zealand. He lived in the country until he was 8 years old and then travelled back once when he was 14 or 15 years old staying for one month with his grandmother, who has since moved to Sydney.  

23. While the applicant’s biological father lives there, he said that he would not seek him out.

24. The applicant’s brother has recently returned to New Zealand. The applicant spoke to his brother a few days ago but not since his deportation. He said that the family are from a place on the north island, but his brother is headed to a different town where they have no relations or history. He believes it’s because his brother was deported at the same time as another man who has relations there and so they are going together.

25. I put to him that the New Zealand government helps to facilitate the process of return and integration. He said that he wasn’t sure.[3] He said that filling out paperwork will be difficult as he can’t read or write. I put to him that there would be government support for people who can’t read as there are for blind people or people suffering mental health support but I note that there are similar supports in Australia and yet he has not sought them out or pursued opportunities when they may have been presented to him. He believes that he will be homeless and on the streets. The applicant said that when he first got out of jail in Australia, he was given accommodation for four weeks, but he was placed in a shared house with junkies that was ‘filth’ and he refused to stay for more than one night.

    [3] FAQs for Returning Offenders, Department of Corrections, January 2019, >

    When asked to identify the hardship he faces, he said that he doesn’t speak the language, saying that they spoke Maori. I told him that they all speak English as well.

26. He said that New Zealand is all ‘ganged up’. He said that it is more ‘hectic’ than in Australia.

27. He said that he doesn’t know anyone.

28. In considering the overall hardship the applicant will face I note that underlying the challenge is his limited literacy and numeracy. Although there are many similarities between Australia and New Zealand including the language, culture and institutions, it is relevant to note that even in Australia he struggled to navigate the system such as acquiring a driver’s license despite his familiarity with the country. Having said that he nevertheless appears not to have made much of an effort and as such to some degree it is a choice that he has made. Regardless, I accept that challenges arising from navigating the bureaucracy in New Zealand will be more difficult for the applicant to overcome than they would be in Australia where he has support and familiarity.

29. While he will have his brother to accompany him on this journey as well as the support services made available by the New Zealand government, they cannot wholly overcome the challenges he faces due to his limited literacy and numeracy.

30. I also acknowledge that not knowing any local people will make it all the more difficult to navigate the bureaucracy but also to find work or accommodation.

31. While the applicant mentioned New Zealand being more ‘ganged up’ than Australia, I do not accept that it is predestined that he will be involved with gangs. Whether he is will be dependent upon choices that he will have to make and having the opportunity to start afresh as he did by moving out of Melton to Deer Park may give him the break that he needs to not associate with others involved in crime.

32. When considering the degree of hardship the applicant’s family faces as a result of his inability to return, I note that the impact upon his daughter is considered below. Separate to his daughter I place no weight on the impact to the mother of his child as there is no relationship between them. While there would be an impact on the applicant’s mother, the applicant did not indicate or demonstrate a relationship with his other siblings such that any weight could be given to the hardship they may face.

33. Regarding his mother, the hardship will be solely emotional as she works and shares a house with others and is not dependent upon the applicant financially. While the impact can not be dismissed, I am cognizant that the applicant’s mother did not attend as a witness to the hearing despite specifically noting that she could attend. I also note that the applicant has indicated that there was an AVO against him which limited his ability to return to his mother’s house. The applicant was unable to detail the reason for it and so it is unclear what role his mother has in this. On the other hand, the applicant had submitted in response to the NOICC an email with well written responses that he explained at the hearing was typed by his mother indicating some degree of relationship and desire on the part of the mother to support her son.

34. Overall, noting the amplification of the hardship he faces as a result of his limited literacy and numeracy and taking into consideration my findings on the hardship faced by the family, I place moderate weight against cancellation.

    Circumstances in which ground of cancellation arose.

35. The circumstances in which the grounds for cancellation arose are that the applicant committed offences. As noted above, the root causes for the applicant’s ongoing offending may include his upbringing by the state and the abuse he received at the hands of his stepfather. While some weight can be placed on this past, along with the more practical circumstances in which the ground of cancellation arose such as an inability to access a driver’s licence, ultimately, though, some responsibility must be borne by the applicant for the choices he made.

36. The applicant has a long history of offending such that he has had numerous engagements with professionals including during his youth. Opportunities to reflect on his life and his choices were available after each encounter with the law. Yet, for twenty years he continued to turn to a life that put others in the community at risk or in harm.

37. Even when asked how he ends up returning to crime he acknowledged that he sometimes instigates it, a statement that reflects poorly on the applicant’s acknowledgement of new path that he has to forge.

38. For the reasons of his extensive offending and choices he made along this pathway, I find that any weight that can be placed on his past circumstances as being out of his control, is outweighed by his ongoing and repeated disregard for others through his behaviour and a lack of an effort to remedy the situation. I place considerable weight in favour of cancellation because the circumstances in which the grounds were cancelled indicate a wilful disregard for others in the community.

    Past and present behaviour of the visa holder towards the department

39. There is no available evidence before me to suggest that the applicant has had any adverse engagement with the Department, as this is a basic expectation of all visa holders, I place limited weight against cancellation.

    Whether there would be consequential cancellations under s 140

40. There are no consequential cancellations under s 140. As such this consideration is neutral and I place no weight either for or against cancellation.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

41. The cancellation of the applicant’s Subclass 444 visa will lead to the applicant being liable for removal under s198 unless he is able to obtain an alternative visa. But in such an endeavour the applicant is barred from applying for certain prescribed visas arising from s 48 of the Act. Of those that are not prescribed, there is no apparent pathway for the applicant to apply for them, for example, a partner visa requires a sponsor, or a protection visa a well-founded fear of persecution.

42. As a result of the cancellation the applicant will not be able to apply for a new visa for three years due to public interest criteria 4013, though this has a compelling and compassionate waiver. I discussed this with the applicant, specifically noting that it prevents him from making a valid application for a three-year period from the date of the cancellation which would mean no earlier than January 2024. The applicant would also be impacted by PIC 4014 which also has a three-year bar, but it begins from the date of departure from Australia and as such it would limit the applicant from applying prior to approximately April 2026. Nevertheless, these restrictions become moot considering the restrictions arising from his prior offending.

43. As the applicant has an extensive criminal record, it is likely that he would be deemed a behaviour concern non-citizen and as such be unable to be granted a special category subclass 444 visa. Section 32(2)(a)(ii) of the Act reads:

    (2)  A criterion for a special category visa is that the Minister is satisfied the applicant is:

    (a)  a non-citizen:

    (ii)  is neither a behaviour concern non-citizen nor a health concern non-citizen; or

1. ‘Behaviour concern’ is defined in s.5(1) as a person who has been ‘convicted of a crime and sentenced to death or imprisonment, for at least one year; or has been convicted of 2 or more crimes and sentenced to imprisonment, for periods that add up to at least one year…’. The applicant meets the criteria of behavioural concern both for being convicted and sentenced for a crime of at least one year and for being sentenced based on two or more crimes for a period of at least one year.

2. Were the applicant to seek and be eligible for a different visa, there is a similar character provision under s 501 of the Act which would be enlivened as a result of the degree of his past offending.

3. I explained to the applicant the above law and the effective impact being that it is likely that he would be unable to return to Australia into the foreseeable future. Other than what was discussed already, the applicant only added in response to a question about his mum being able to visit that there are no impediments to her travelling to New Zealand.

4. The mandatory legal consequences of the cancellation of the applicant’s visa are that it would be highly unlikely that he would be able to obtain a visa to return to Australia. Although to some degree weight has been given to the ramifications that arise from this outcome, particularly when considering the hardship the applicant faces, I place additional weight against cancellation for the permanence that this aspect of the law imposes on the situation. Without ministerial intervention, a change in the law or an as yet unidentified pathway to a visa that does not have a behavioural or character test, the applicant will be unable to return to Australia.

5. This weighs heavily in this decision considering that the applicant has nearly all of his family living in Australia, though as noted by the applicant, at least for his mother there is no obstacle to her visiting New Zealand.

6. Taking into consideration the permanence of the impact that this cancellation will have on the applicant, I place considerable weight against cancellation.

   Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation

7. In considering Australia’s non-refoulment obligations I find that if the applicant was to be returned to New Zealand, Australia would not be in breach of its international obligations as the applicant has not lodged a protection application, he has not expressed a reason to fear return to New Zealand and there is no information on the material available to the Tribunal to suggest that there would be a reason why he would face a well-founded fear of persecution or a real risk of significant harm.

8. I have also considered the Convention on the Rights of the Child. In considering the obligations under this international treaty the correct approach is to reflect on what is in the best interests of the child. The applicant has a seven-year-old daughter. The courts have given custody to the child’s grandmother according to the applicant. Some form of protection order has been put in place that prevents the applicant from coming near to the home in which the child, her mother and the grandmother live.

9. The applicant has not been involved in the child’s life for several years, suggesting it was since she was a ‘baby’. He has made very limited efforts to remedy that, only once enquiring to his lawyer about being able to work through the courts to obtain some parenting rights.

10. In considering the applicant’s ability to contribute positively to the child’s upbringing I note that the applicant himself has a long history of offending and a general disregard for the law. He has been in extended imprisonment and detention for over four years. Through this period, the applicant has not found a path that could extricate himself from this cycle of offending. With such a history and with a limited prospect of rehabilitation I place limited weight on the value of the parenting the applicant would be able to afford to the child.

11. When considered overall, noting the circumstances of the child and her past relationship with her father including the limited engagement she has had and the involvement of the authorities to further limit his ability to engage with her in addition to the low level of confidence I have that his contributions as a father would be of a positive impact, I place little weight against cancellation.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

12. The applicant’s subclass 444 visa is a temporary visa and as such this consideration is neutral and I place no weight either for or against cancellation.

    Any other relevant matters

13. I place very heavy weight in favour of cancellation of the applicant’s visa for the reason of the risk that his inability to divert from the pathway of repeated offending and continue to be a risk to the Australia community as described in the first section of this decision when considering the grounds for cancellation.

14. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled

    DECISION

15. The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.

    Denis Dragovic
    Deputy President