Burton and Minister for Immigration and Border Protection (Migration)

[2016] AATA 870

Burton and Minister for Immigration and Border Protection (Migration) [2016] AATA 870 (3 November 2016)

Division	GENERAL DIVISION
File Number	2016/1313
Re	Ngarangione Burton
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Brigadier AG Warner, Member
Date	3 November 2016
Place	Perth

The decision under review is affirmed.

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Brigadier AG Warner, Member

CATCHWORDS

IMMIGRATION – mandatory visa cancellation – discretion to revoke – substantial criminal record – character test not satisfied – discretion to revoke visa cancellation if another reason – primary and other considerations - considerations weigh against revocation – decision under review affirmed

LEGISLATION

Migration Act 1958 – s 189 – s 499(2A) – s 501 – s 501(1) – s 501(3A) – s 501(6) – s 501(7) – s 501CA(4)(b)

SECONDARY MATERIALS

Direction No. 65 – Visa refusal and cancellation under s501 and revocation of mandatory cancellation of a visa under s501CA – para 6.2 – para 6.3 – para 8 – para 13

REASONS FOR DECISION

Brigadier AG Warner, Member

3 November 2016

INTRODUCTION

1. On 13 April 2015, Mr Burton’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Migration Act) (cancellation decision). He was removed from Australia on 22 March 2016 and currently resides in New Zealand.

2. Mr Burton seeks review in the Tribunal of a decision made by a delegate of the Minister for Immigration and Border Protection (the Minister) on 29 January 2016 under s 501CA(4) of the Migration Act to not revoke the cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (444 visa) (T1/1).

3. Mr Burton participated in the Tribunal hearing by telephone conference from New Zealand where he currently resides. He was not legally represented. The Minister was represented by Mr Gerrard.

   BACKGROUND

4. Mr Burton was born in 1992 and is a citizen of New Zealand (T27/338).

5. Mr Burton received his most recent visa when he re-entered Australia on 25 August 2010 (T23/242).

6. Mr Burton accumulated an extensive criminal record in Australia for offences committed between February 2012 and June 2014 (T23/236-237). That record shows the following court outcomes:

   ·24 April 2012: Probation for 3 years, Community Service Order requiring 200 hours within 12 months.

   ·5 November 2012: 20 months imprisonment.

   ·2 September 2013: 6 months imprisonment suspended to be of good behaviour for 12 months.

   ·18 December 2014: 2 years imprisonment.

7. On 23 January 2015, Mr Burton was released to parole, and was returned to custody on 11 March 2015 having breached parole (ST1/342)

8. On 13 April 2015, Mr Burton’s visa was cancelled under s 501(3A) of the Migration Act (T4/14).

9. On 14 April 2015, Mr Burton was detained under s 189 of the Migration Act, and on the same day requested voluntary removal from Australia to New Zealand (ST4/345). On 21 April 2015, Mr Burton advised the Department of Immigration and Border Protection that he did not wish to be removed (ST4/349-350).

10. On 5 May 2015, Mr Burton was again released from prison to parole and was taken into immigration detention (ST4/349).

11. On 11 May 2015, Mr Burton made representations seeking revocation of the cancellation decision, and on 22 January 2015 and 27 January 2015 he provided submissions and further documentation (T12/125-138, T21/191-210).

12. On 29 January 2016, a delegate of the Minister decided not to revoke the cancellation decision (non-revocation decision) because the delegate was not satisfied that Mr Burton satisfied the character test or that there was another reason why the cancellation decision should be revoked (T23/221, 223-232).

13. On 11 February 2016, Mr Burton requested voluntary removal from Australia (T26/336-337).  He was removed to New Zealand on 22 March 2016 and remains on a parole order until 17 December 2016 (T23/293).

    ISSUE

14. The issue before the Tribunal is whether there is any reason why the cancellation of Mr Burton’s visa should be revoked pursuant to s 501CA(4)(b) of the Migration Act.

    RELEVANT LEGISLATION AND DIRECTION

15. Section 501 of the Migration Act deals with refusals or cancellations of visas on character grounds.

16. In order to consider Mr Burton’s application for review, it is necessary to determine whether the discretion to revoke the decision cancelling his visa is enlivened under s 501CA(4) of the Migration Act and, if so, whether it is appropriate to do so in the circumstances. Section 501CA(4) of the Migration Act provides that:

    The Minister may revoke the original decision if:

    (a) the person makes representations in accordance with the invitation; and

    (b)       the Minister is satisfied;

    (i)that the person passes the character test (as defined by section 501); or

    (ii)that there is another reason why the original decision should be revoked.

17. When considering such matters, the Tribunal must apply directions issued by the Minister under s 499(2A) of the Migration Act. Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 65) was issued by the Minister on 22 December 2014 and applies to the present application.

18. The character test is set out in s 501(6) of the Migration Act. Subsection 501(6)(a) provides that a person does not pass the character test if the person has a ‘substantial criminal record (as defined by subsection (7))’. Subsection 501(7)(c) of the Migration Act provides that a person has a ‘substantial criminal record if, among other things, the person has been sentenced to a term of imprisonment of 12 months or more’.

19. Pursuant to s 501(1) of the Migration Act, the Minister (or Tribunal upon review) may refuse to grant a visa to the applicant if an applicant does not satisfy the Minister that he or she passes the character test.

20. Subsection 501(7) of the Migration Act provides:

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

    …

    (d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more.

21. Once it has been determined that an applicant does not pass the character test because, for example, they have a substantial criminal record, the Tribunal must then determine whether to exercise its discretion conferred by s 501CA(4) of the Migration Act. The Tribunal must have regard to Direction 65.

22. Relevantly, paragraph 6.2 of Direction 65 provides general guidance for decision makers, as follows:

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

23. Paragraph 6.3 then outlines principles which inform the exercise of the Tribunal’s discretionary powers in relation to visa refusal and cancellation:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

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

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

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

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

    (6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia. 

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

24. For this matter, under paragraph 8(1) of Direction 65, the primary and other considerations set out in Part C must be taken into account. Primary considerations should generally be given greater weight than other considerations: para 8(4). Relevant independent and authoritative evidence must be given appropriate weight: para 8(2).

25. The primary considerations in deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, as set out in paragraph 13(2) are:

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

    b)           The best interests of minor children in Australia;

    c)           Expectations of the Australian Community.

26. Detailed guidance in respect of these primary considerations is provided in paragraphs 13.1 to 13.3.

27. Paragraph 13.1 of Direction 65 requires decision-makers to “have regard to the principle that the Government is committed to protecting the Australian community from harm”, and requires that consideration be given to:

    a)The nature and seriousness of the non-citizen’s conduct to date; and

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

28. Finally, paragraph 14 of Direction 65 outlines the “other considerations” that may be relevant to the Tribunal when determining whether to exercise its section 501 discretion. They are:

    a)    International non-refoulement obligations;

    b)    Strength, nature and duration of ties;

    c)    Impact on Australian business interests;

    d)    Impact on victims;

    e)    Extent of impediments if removed.

29. Detailed guidance in respect of these other considerations is given in paragraphs 14.1 to 14.5.

    EVIDENCE

30. The Tribunal had before it the following evidence:

    ·The “T Documents” (T1-T28, pp 1-341) (Exhibit 1);

    ·Supplementary T Documents (ST1-ST7, pp 342-355) (Exhibit 2);

    ·Applicant’s Original Submissions dated 22 January 2016 (Exhibit 4);

    ·Respondent’s Statement of Facts, Issues and Contentions dated 30 June 2016 (Exhibit 3); and

    ·The oral evidence of the Applicant.

    CONSIDERATION

    General

31. The Tribunal conducted a directions hearing by telephone in relation to this matter on 23 August 2016. Mr Burton was provided with the opportunity to make submissions, and was encouraged to obtain relevant evidence, in support of his application before the Tribunal. Mr Burton did not provide written submissions and gave only limited oral evidence during these proceedings.

32. Mr Burton has an extensive criminal record in Australia involving 55 convictions between 2012 and 2014. He was sentenced to 20 months imprisonment on 5 November 2012 and 2 years imprisonment on 18 December 2014. It is clear, and there is no dispute, that Mr Burton has a ‘substantial criminal record’ and he does not pass the character test.

33. There is no dispute that on 11 May 2015, Mr Burton made representations to the Minister seeking revocation of the mandatory cancellation of his visa (T12/125-138).

34. Having determined that Mr Burton does not pass the character test, the Tribunal must consider whether there is another reason why the decision to cancel his visa should be revoked, such that the discretion under s 501CA(4) of the Act is enlivened pursuant to
    s 501CA(4)(b)(ii).

35. In an email dated 11 March 2016, Ms Jennifer Samuta (then representing Mr Burton) detailed the grounds of Mr Burton’s application before Tribunal.  In its considerations below, the Tribunal has regard to these grounds which are as follows:

    ·he will not pose a risk to the Australian community as he is not violent by nature;

    ·he is remorseful of his past behaviour which led to his criminal convictions;

    ·he has taken positive steps to rehabilitation and is not likely to re-offend;

    ·he has the support of his family, friends and professionals who will help him integrate into society upon release from imprisonment/detention;

    ·he has strong family relationships formed in Australia, including parents, siblings, nieces and nephews, all of which will be fragmented as a result of his removal from Australia .

    PRIMARY CONSIDERATIONS

    Nature and seriousness of conduct

36. Mr Burton’s National Police Certificate details the nature, extent, repetition and seriousness of his offending behaviour. Offences include: receiving tainted property, unlawful use of motor vehicles, assault or obstruct police officer, stealing, possess tainted property, breach of bail granted condition, burglary and commit indictable offence,  unlawful entry of vehicle for committing indictable offence, enter premises and commit indictable offence by break, enter dwelling with intent, failure to appear in accordance with undertaking, wilful damage, possess utensils or pipes for use, dangerous operation of a vehicle, and fail to stop motor vehicle (T10/121-123).

37. In the Beenleigh Magistrate’s Court on 5 November 2012, Magistrate Kilmartin described the seriousness of Mr Burton’s offending as follows:

    Now, in the court’s view, the offences enter premises, receiving tainted property, stealing and unlawful entry of motor vehicle are a class of offending which stands out from the balance of the offences and you will be dealt with severely for those breaches.  And the other matters, whilst they’re still criminality, might be referred to as of the lessor seriousness, namely the unlawful use of a vehicle, failure to appear and wilful damage.  The enter premises and stolen property and burglary and stealing and unlawful entry to vehicles are particularly serious offences …

    I accept that you’ve got a drug problem, but then you were given an opportunity on probation to do something about that drug problem.  The fact that you have been on ecstasy is particularly serious … That you’re involved in ice is also disturbing.

    … So, I’m imposing a lengthy head sentence … with such a sentence, there’s appropriate deterrence to you and there’s appropriate deterrence to others in the community who show such disrespect for other people’s property as you have (T23/281, 283).

38. Mr Burton’s December 2014 convictions demonstrated continued and repeated serious offending.  Again, in the Beenleigh Magistrates Court on 18 December 2014, Magistrate Kilmartin relevantly remarked:

    Defendant, your behaviour can only be described as absolutely outrageous.  You’ve had the most callous disregard for your victims.  That property that you’ve stolen is highly personal to a number of people from whom it was taken.  You’ve taken electronic goods.  Electronic goods in today’s market and today’s way of living often has sensitive and valuable business data on it and you couldn’t have cared less about those people.  Ms Murphy says that you’ve been taking ice.  Well, you take responsibility for that.  You take your victims as you find them.  Repeated unlawful use of motor vehicles.  You’ve had opportunities, numerous opportunities before and you’ve just squandered them.

    The two-year sentence, in the Court’s view, is appropriate … a two-year head sentence sends a signal  into the community as to the Court’s gross displeasure about this kind of calculated and regular offending.  This type of offending that you’ve engaged in can’t just be thought to be opportunistic.  There’s a pronounced measure of calculation about it, and you’ve inflicted considerable humiliation and offence to your victims (T23/234).

39. In concluding contentions related to the nature and seriousness of Mr Burton’s conduct, the Respondent stated:

    Taking into account the nature of the applicant’s offending, the gravity with which the sentencing magistrates viewed the offences, the applicant’s clear pattern of repeat offending, and the general Guidance and Principles set out in Direction No. 65, it is the respondent’s contention that the applicant’s history of criminal offending weighs in favour of cancellation and does so to a significant degree (Exhibit 3 para 36).

40. The Tribunal is satisfied that the evidence supports the Respondent’s contention and agrees. It follows that the nature and seriousness of Mr Burton’s criminal conduct weighs against revoking cancellation of his visa.

    Risk to the Australian community

41. In assessing the risk to the Australian community, the Tribunal has regard, cumulatively, to the nature of the harm to individuals or the Australian community should Mr Burton engage in further criminal conduct, and the likelihood of further criminal or serious conduct.

42. When sentencing Mr Burton on 5 November 2012, the Magistrate noted that he had previously been given a community service and probation order and had “totally squandered those opportunities” (T23/280). On 18 December 2014, in the course of sentencing the same Magistrate stated that Mr Burton “had opportunities, numerous opportunities and you’ve just squandered them” (T23/234). 

43. Mr Burton’s National Police Certificate shows that offences dealt with on 24 April 2012 included “Breach of Bail Granted Condition”, and on both 30 July 2012 and 5 November 2012 “Failure To Appear In Accordance With Undertaking” (T23/237-238). Taken together with Mr Burton’s statement that he breached parole in 2015 after testing positive for substances after celebrating his release from prison with friends (T21/206), these breaches indicate an unwillingness or inability to comply with directions, and a risk to the community.

44. The sentencing remarks from Mr Burton’s court appearances on 5 November 2012 and 18 December 2014 refer to his drug problem.  There is little written evidence that Mr Burton has taken steps towards rehabilitation in this respect (T21/194, 206; T23/291-292).  Before the Tribunal, Mr Burton said he was using physical activity to support abstinence from illicit substances.  He said that he had seen a psychologist and that she had thought he was not in a category having a need for substance abuse counselling.  It seems to the Tribunal that without structured intervention, the risk of Mr Burton re-offending or engaging in criminal conduct related to, or as a consequence of using prohibited drugs, remains.

45. In relation to this primary consideration of risk, the Respondent submits:

    The applicant has expressed remorse for his conduct (T1, p206), and submitted to the Department that there is no likelihood of his criminal conduct being repeated due to the ‘nature of his rehabilitation and the nature of his support network’ (T23, p287).However, in the respondent’s contention the objective record of the applicant’s convictions  for continued and repeated offences between 2012 and 2014, and the applicant’s failure to curtail his offending and underlying drug issues despite periods of incarceration and significant family support, outweigh the applicant’s unsubstantiated claim to no longer be at risk of re-offending (Exhibit 3 para 43).

1. The Tribunal is satisfied that the evidence supports this submission and agrees. The risk to the Australian community that Mr Burton might repeat his offending behaviour is unacceptable, and it follows that this consideration weighs against revocation.

   Best interests of minor children in Australia

2. The second primary consideration to be addressed is whether revocation is in the best interests of minor children.

3. Mr Burton is single and has no children. Mr Burton’s two sisters each have minor children, and the Tribunal accepts that revocation of the visa cancellation would be in the best interests of these children. However, these children receive their daily care and maintenance from their respective parents and there is no evidence that Mr Burton’s role as an uncle involved any responsibility for their day to day care.

4. There is some suggestion that Mr Burton may have had a fiancée in Australia and may have provided some care to that fiancée’s child (T17/30, T13/145).  However there is no evidence that this remains the case and no evidence that Mr Burton has or had a parental relationship with the child.  Relevantly, the Tribunal notes Mr Burton’s confirmation in his Removal Planning Interview that there was nothing preventing his return home (T25/332).

5. The present evidence relevant to minor children is not sufficient to weigh in favour of revocation.

   Expectations of the Australian community

6. Guidance on the third primary consideration, that of the expectations of the Australian community, is provided in paragraph 13.3(1) of Direction 65:

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

7. The Respondent submits that:

   Taken cumulatively the applicant’s 55 convictions over a period of 2 years can clearly be considered serious, particularly having regard to the court’s decision in 2014 to sentence the applicant to immediate imprisonment, the applicant’s apparent failure to seriously address the risk factors underlying his offending, the applicant’s pattern of repeat offending despite warnings, rehabilitation opportunities and strong family support, and the obvious cumulative impact of the applicant’s offending on the community in terms of direct victim impact and indirect financial burden (Exhibit 3 para 52).

8. Having regard to the evidence before it, the Tribunal agrees.

9. The Tribunal is mindful of Principle 6.3(5) of Direction 65 which provides that a higher level of tolerance of criminal conduct may be afforded to “a non-citizen who has lived in the Australian community for most of their life, or from a very young age.”   The Tribunal considers that this principle does not apply to Mr Burton’s circumstances.

10. Weighing the evidence and having regard to the circumstances of Mr Burton’s offending   behaviour, the Tribunal is reasonably satisfied that the Australian community would find Mr Burton’s criminal conduct unacceptable.  It follows that this expectation weighs against revocation of the cancellation of Mr Burton’s visa.

    OTHER CONSIDERATIONS

    International non-refoulement obligations

11. International non-refoulement obligations do not arise in this matter.

    Strength, nature and duration of ties

12. Mr Burton resided in Australia from January 2010 and to a certain extent contributed to the Australian economy through employment (T12/137, T15/161-162 and 164).  However this contribution must be viewed through a prism of his criminal activity, illicit substance use and the relatively short period between his arrival in Australia and the commencement of his offending.

13. Mr Burton has an extensive network of family and friends in Australia, and it appears that his parents moved to Australia solely to support him when he started “getting into trouble and then he got locked up” (T21/199).  Before the Tribunal, Mr Burton said that his parents had visited him in New Zealand since his return there, and that they intended to return again at Christmas 2016 for a large family gathering.

14. Supportive letters from Mr Burton’s family are detailed in the non-revocation decision as follows:

    Mr BURTON has provided letters from his sister Ms Renee Ngarimu, and her partner Mr Johnny Huata.  They state Mr BURTON has resided with them and their children since his arrival in Australia.  They also confirm he will continue to live with them if released from detention.

    Mr BURTON has also provided letters from his father Jason Whatuira, his mother Vanessa Ngarangione, and friends supporting his continued presence in Australia.  In particular, in her letter of 25 September 2015 Ms Crystal Stone offers Mr BURTON both financial and emotional support (T23/230).

15. Relevant to this consideration, the Respondent submits:

    The respondent accepts that the applicant’s absence from Australia may cause emotional hardship to the applicant and his family, and interfere with his ability to maintain a direct relationship with his family in Australia.  However, noting that paragraph 8(4) of Direction No. 65 requires primary considerations to generally be given greater weight than other considerations, the respondent contends that the effect of non-revocation on the applicant’s family and friends is outweighed by the primary considerations which militate against revocation of the cancellation decision (Exhibit 3 para 61).

16. The Tribunal accepts that some negative effect may arise for Mr Burton’s family if the mandatory cancellation of his visa is not revoked, and although sympathetic to the family’s situation, the Tribunal agrees with the Respondent’s submission.  Having regard to all the relevant information, the Tribunal concludes that the strength, nature and duration of Mr Burton’s ties to Australia do not weigh in favour of revocation.

    Impact on Australian business

17. Paragraph 12.4(1) of Direction 65 provides guidance that “an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a major project, or delivery of an important service in Australia.”

18. Mr Burton was employed in Australia. His occupation from 2010 to 2012 is listed as “Versacold – pick and pack”, and from 2013 to 2015 he was employed as a furniture removalist.  A family friend has offered future employment in his family bakery.  There is no evidence of business issues of the kind contemplated in paragraph 12.4(1) of Direction 65 that would weigh in favour of revocation of the visa cancellation decision.

    Impact on victims

19. There was no direct evidence before the Tribunal regarding the potential impact on Mr Burton’s victims should the cancellation decision be revoked. The Tribunal can go no further with this consideration.

    Impediments if removed

20. The Respondent accepts that Mr Burton may face some difficulty establishing himself in New Zealand, particularly as his family in great part reside in Australia. However, as detailed above, his family have visited him in New Zealand and another visit is planned.

21. In his Statutory Declaration supporting his application for revocation of his visa cancellation, Mr Burton stated:

    I am scared to go back to New Zealand because I would fall back to my old community where I grew up seeing all the Gang crimes.  I have made my choice to leave that life style behind and I am afraid that I would have no choice but be part of that culture because my family connections (T15/165).

22. Mr Burton provided no subsequent submissions on this issue in writing or before the Tribunal. Mr Burton’s request for voluntary removal from Australia and his statements of remorse and shame concerning his offending behaviour in Australia suggest that he is unlikely to be involved in gang activity in New Zealand either as a participant or a victim.

23. The Tribunal considers that Australia and New Zealand are broadly analogous in terms of language, heritage, culture, and provision of social, health and other public services.  No substantial related impediments were raised by Mr Burton in oral evidence or submissions.

24. There is insufficient evidence to support a conclusion that the extent of impediments  on Mr Burton’s removal from Australia weigh in favour of revocation of the non-revocation decision.

    CONCLUSION

25. Mr Burton has a substantial criminal record and does not pass the character test.

26. Having regard to all the evidence, and having weighed the primary and other considerations, the Tribunal determines that the correct and preferable decision is to exercise the discretion to not revoke cancellation of Mr Burton’s visa.

    DECISION

27. For the reasons outlined above, the decision under review is affirmed.

I certify that the preceding 72 (seventy–two) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, Member

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Administrative Assistant

Dated 3 November 2016

Date of hearing	13 September 2016
Applicant	Self-represented (by telephone)
Representative for the Respondent	Mr A Gerrard
Solicitors for the Respondent	Australian Government Solicitor