Campbell-Smith and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 4417
•23 October 2023
Campbell-Smith and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4417 (23 October 2023)
Division:GENERAL DIVISION
File Number(s): 2023/5586
Re:Justice Jaye Campbell-Smith
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member Lee Benjamin
Date:23 October 2023
Date of written reasons: 23 January 2024
Place:Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the Respondent’s delegate dated 28 July 2023 to not revoke the cancellation of the Applicant’s visa.
................................[SGD]........................................
Member Lee Benjamin
Catchwords
MIGRATION – Mandatory visa cancellation – New Zealand citizen - Class TY Subclass 444 Special Category (Temporary) Visa – section 501CA of the Migration Act 1958 (Cth) – failure to pass good character test – substantial criminal record – where offending includes numerous property, fraud-related and drug-related offences - whether “another reason” exists for Tribunal to revoke mandatory cancellation of visa under section 501CA of the Migration Act 1958 (Cth) – Ministerial Direction No. 99 applied – Respondent’s delegate’s decision affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)Migration Act 1958 (Cth)
Cases
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FYBR v Minister for Home Affairs (2019) 272 FCR 454; [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Minister for Home Affairs v HSKJ (2018) 266 FCR 591
Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666; [2009] AATA 47
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Secondary Materials
Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Member Lee Benjamin
23 January 2024
WHAT IS THIS DECISION ABOUT?
Justice Jaye Campbell-Smith[1] arrived in Australia in December 2012, aged around 15 years.[2] He turned 17 years old in February 2014. He has had an extensive and almost non-stop adult offending career in Australia since that time. His crimes include (a) property and dishonesty offences; (b) drug-related offences; (c) breaching orders or directions; and (d) offences against police officers in the course of their duties, among others.[3] His visa[4] was mandatorily cancelled in October 2022[5] because he has a substantial criminal record.[6] He requested revocation of the decision[7] and it was refused.[8] In August 2023, the Applicant applied to the Administrative Appeals Tribunal for review[9] of the Respondent’s decision not to revoke his visa cancellation.[10] In this case, the Applicant fails the statutory character test for revocation.[11] Accordingly, the only question for the Tribunal to determine is whether there is “another reason” why the decision to cancel the Applicant’s visa should be revoked.[12] On balance, I find that the answer to this question is, no.
[1] The Applicant is a New Zealand citizen.
[2] Exhibit Tr1, G2, p 162.
[3] Exhibit Tr1, G6, p 27 - 37.
[4] Class TY Subclass 444 Special Category (Temporary) Visa granted on 9 December 2012.
[5] Exhibit Tr1, G2, p 163.
[6] Subsection 501(3A) of the Migration Act 1958 (Cth) (Act) requires the Respondent to cancel a visa if the person does not pass the character test because they have a substantial criminal record. The Applicant does not pass the character test (see below).
[7] Exhibit Tr1, G2, p 92.
[8] Exhibit Tr1, G2, p 6.
[9] The Tribunal has jurisdiction to review the decision under subsection 500(1)(BA) of the Act.
[10] Exhibit Tr1, G1, p 1.
[11] Subsection 501CA(4)(b)(i) of the Act.
[12] Subsection 501CA(4)(b)(ii) of the Act.
LEGAL FRAMEWORK
Mandatory visa cancellation revocation is governed by subsection 501CA(4) of the Act:
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.
I am satisfied that the Applicant was invited to, and did, make the representations in support of the revocation of the visa cancellation required by subsection 501CA(4)(a) of the Act.
Does the Applicant Pass the Character Test?
The character test is defined in subsection 501(6) of the Act. Under subsection 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in subsection 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more.” Failure of the character test arises as a matter of law.[13]
[13] Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666; [2009] AATA 47 at [63].
On 26 April 2022, the Applicant was convicted in the Beenleigh Magistrates Court of Burglary and Commit Indictable Offence. He was sentenced to imprisonment for 30 months for these offences.[14]
[14] Exhibit Tr1, G2, p 27-28.
The Respondent contends,[15] and I find, that the Applicant does not pass the character test as defined by subsection 501(6). He therefore cannot rely on subsection 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
[15] Exhibit R1, p 7, para 7.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
The central question in this review is whether the Tribunal, standing in the Respondent’s shoes, is satisfied that there is “another reason” why the cancellation decision should be revoked under subsection 501CA(4). I must “do over again” the task of the primary decision maker, making my own findings of fact, based on the material before me, undertaking my own assessment against the statutory criteria. This requires me to review the Applicant’s representations and the evidence put forward in support of them. Overall, I am required to examine the factors for and against revoking the cancellation.
In considering whether to exercise the discretion in subsection 501CA(4), the Tribunal is bound by section 499 of the Act to comply with any directions made under the same. In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99 or the Direction) applies.[16]
[16] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains principles that must guide a decision-maker’s application of Part 2 of the Direction:
(a) Australia has a sovereign right to determine whether non-citizens who are of character concern have a right to enter or remain in Australia. Being able to come 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 (paragraph 5.2(1)).
(b) 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 (paragraph 5.2(2)).
(c) The Australian community expects that the Australian Government can and should refuse entry to non-citizens or cancel their visas, if they engage in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (paragraph 5.2(3)).
(d) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time (paragraph 5.2(4)).
(e) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years (paragraph 5.2(5)).
(f) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.5(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 measurable risk of causing physical harm to the Australian community (paragraph 5.2(6)).
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.[17]
[17] The Direction, paragraph 6. See also the Direction, paragraph 4(1) which provides that “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account. They are:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia; and
(5) expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account, where relevant. They are:
(a) legal consequences of the decision;
(b) extent of impediments if removed;
(c) impact on victims; and
(d) impact on Australian business interests.
I may also take into account other matters that are relevant to whether there is another reason to revoke the cancellation of the Applicant’s visa, such as the prospect of indefinite detention.
Paragraph 7(2) of the Direction provides that the primary considerations should generally be given greater weight than the other considerations, and paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations. However, it is accepted that other considerations should not necessarily be seen as "secondary" and, in certain circumstances, it may be that other considerations may outweigh primary considerations.[18]
[18] See also: Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, [23] - [32]. Cf. Minister for Home Affairs v HSKJ (2018) 266 FCR 591, 601 - 602.
If the Tribunal is satisfied that another reason exists to revoke the cancellation decision, it must proceed to do so. There is no second step to the test where the Tribunal considers whether it ought to revoke the cancellation, following a decision that another reason to do so exists.[19]
[19] Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, [38].
WHAT HAPPENED?
The Applicant’s offending history in Australia is summarised in the table below:
Court Conviction date Offence Outcome Brisbane Magistrates Court 19 April 2014 3 x Breach of Bail Condition Conviction Recorded
Not Further Punished
Holland Park Magistrates Court 30 April 2014 3 x Breach of Bail Condition No Conviction Recorded
Not Further Punished
Brisbane Magistrates Court 25 June 2014 3 x Enter Premises and Commit Indictable Offence by Break No conviction recorded
Probation: 10 months
2 x Trespass – Entering or Remaining in Dwelling or Yard Possessing Dangerous Drugs Assault or Obstruct Police Officer 25 September 2014 Breach of Bail Condition No Conviction Recorded
Not Further Punished
30 October 2014 2 x Breach of Bail Condition Conviction Recorded
Not Further Punished
Assault or Obstruct Police Officer 2 x Contravene Direction or Requirement Possess Utensils or Pipes etc That Had Been Used Attempted Enter Dwelling with Intent Probation: 2 years
Community Service: 150 hours, to be completed within 1 year
6 x Burglary and Commit Indictable Offence Enter Dwelling with Intent Receiving Tainted Property Act Constituting a Crime Beenleigh Magistrates Court 18 December 2014 Furnishing Property for Purpose of Committing an Offence Under Drugs Misuse Act Conviction Recorded
Not Further Punished
Contravene Direction or Requirement Southport Magistrates Court 2 February 2016 Enter Dwelling with Intent Imprisonment: 2 years, concurrent
Parole release date: 29 February 2016
8 x Burglary and Commit Indictable Offence Imprisonment: 2 years, 6 months concurrent Enter Dwelling with Intent by Break Damages Property Unlawful Use of Motor Vehicle Imprisonment: 12 months, concurrent
Parole release date: 29 February 2016
2 x Fraud – Dishonest Application of Property of Another Attempted Fraud - Dishonest Application of Property of Another Breach of Probation Order Fined: $200.00 Brisbane District Court 11 March 2016 Possess Utensils or pipes etc for use Imprisonment: 2 months, concurrent Accessory after the fact to crimes Imprisonment: 18 months Brisbane Magistrates Court
17 May 2016 Breach of Probation Order and Breach of Community Services Order For breach of orders:
Conviction Recorded, Not Further Punished
Resentenced for original offences:
Conviction Recorded, Not Further Punished
24 November 2016 Failure to Appear in Accordance with Undertaking Fined: $330.00 17 March 2017 2 x Possess Dangerous Drugs Convicted Recorded
Not Further Punished
Possess Property Suspected of Having Been Used in Commission of Drug Offence Trespass – Entering or Remaining in Dwelling or Yard Wilful Damage Breach of Bail Condition 3 x Burglary and Commit Indictable Offence Imprisonment: 18 months, concurrent
Parole Eligibility Date: 17 May 2017
Attempted Enter Dwelling with Intent Imprisonment: 6 months, concurrent
Parole Eligibility Date: 17 May 2017
Beenleigh Magistrates Court 3 November 2020 3 x Burglary and Commit Indictable Offence Imprisonment: 30 months, suspended for 3 years, concurrent
Restitution: $200.00
Enter Premises with Intent to Commit Indictable Offence Imprisonment: 2 years, suspended for 3 years, concurrent
Restitution: $730.00
Enter Dwelling with Intent by Break Richlands Magistrates Court 21 May 2021 2 x Breach of Order Suspended sentence fully invoked
Parole Release Date: 21 May 2021
Trespass – Entering or Remaining in Dwelling or Yard Imprisonment: 4 months, concurrent
Parole Release Date: 21 May 2021
Possessing Dangerous Drugs Unlawful Use of Motor Vehicle Imprisonment: 18 months, concurrent
Parole Release Date: 21 May 2021
Beenleigh Magistrates Court 26 April 2022 Failure to Appear in Accordance with Undertaking Fined: $300.00 Fail to Take Reasonable Care and Precautions in Respect of Syringe or Needle Imprisonment: 3 months, concurrent
Possessing Dangerous Drugs Conviction Recorded
Imprisonment: 6 months, concurrent
Unlawful Use of Motor Vehicle Imprisonment: 18 months, concurrent 2 x Burglary and Commit Indictable Offence Imprisonment: 30 months, concurrent
The Applicant accepts that sadly, yes, the data underlying the above table is an accurate record of his offending in Australia.[20]
[20] Transcript, p 21, lines 33-46; p 22, lines 1-12.
Separately, as a matter of fact, the Applicant has an extensive non-adult criminal offending history.[21] In this regard, the Respondent drew my attention to the majority of the High Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton,[22] which they say held that, on a proper construction of section 85ZR(2) of the Crimes Act 1914 (Cth), and section 184(2) of the Youth Justice Act 1992 (Qld), where an offence is committed by a person when they were a child,[23] and no conviction is recorded despite a finding of guilt, that offence is not to be taken as a conviction for any purpose.[24] The Respondent contends (correctly, in my view) that I should not have regard to, the offences committed by the Applicant when he was a minor and in respect of which no convictions were recorded. I have excluded such non-adult offending from the above table and place no weight whatsoever on the same for the purposes of my decision and reasons therefore.
[21] Exhibit Tr1, G2, p 34-37.
[22] [2023] HCA 17.
[23] The Respondent says it follows that, for offences committed before 12 February 2018, the relevant age of who is a child for the purposes of the Youth Justice Act 1992 (Qld) is 16 years old or younger.
[24] Exhibit R1, p 10, para 16.
Based on the Applicant’s criminal history, I consider that his offending may be divided into four different heads (these have been helpfully summarised in the Respondent’s submissions as follows):
(a)property and dishonesty offences, including, burglary and commit indicatable offence, attempted enter dwelling with intent by break, evade fare, unlawful use of motor vehicles aircraft or vessels, trespass, possess utensils or pipes etc for use, receiving tainted property act constituting a crime, accessories after the fact to crimes, fraud-dishonest application of property of another;
(b)drug-related offences, including possess dangerous drugs, possess property suspected of having been used in connection with the commission of a drug offence, failure to take reasonable care and precautions in respect of syringe or needle;
(c)breaching orders or directions, including breach of probation order imposed, breach of community service order, failure to appear in accordance with undertaking, breach of order imposed, breach of bail condition, contravene direction or requirement;
(d)offences against police officers in the course of their duties, including assault or obstruct police officer.[25]
[25] Exhibit R1, p 12, para 19.
Focusing on the property and dishonesty offences, the Applicant appears to have engaged in a relentless roughly 10 year campaign of burglary and property offences. As the Respondent puts it in their submissions:
The Applicant has been convicted in relation to at least 25 separate burglary offences, many of which took place at residential homes in which the Applicant stole jewellery, money, devices and other personal items. By way of example, between February and March 2015, the Applicant engaged in a spree of offending, in which he entered 11 separate dwellings and stole goods from those dwellings. The facts of the Applicant's most recent offending includes that on 2 November 2021, he forced entry to the front door to the victim's dwelling, rummaged through the property and removed several items of jewellery from the victim's home.[26]
[26] Exhibit R1, p 12-13, para 20.
At the hearing, the Respondent put to the Applicant that his criminal history includes a clear pattern in burglary and stealing offences:
MS HO: … you have attended the private homes of individuals, you've attempted to ascertain whether people are at home. So, you go to the front door, you knock at the front door. You then break into those houses, sometimes causing damage to the entry that you enter through. You rummage through household items, sometimes in a messy fashion, and then you've stolen valuable personal items. Your criminal history indicates that you committed over 25 separate burglaries or attempted burglaries of people's houses. Do you agree with that?
APPLICANT: Yes. I agree.[27]
[27] Transcript, p 29, lines 41-47; p 30, lines 1-2.
The Applicant has also been involved in stealing cars. In relation to the Applicant’s unlawful use of motor vehicle convictions, the Applicant denied that he in fact stole any cars at all, and instead claimed that he pled guilty but could not remember being charged or convicted with stealing the cars. Separately, he conceded that these incidents have caused his victims a significant psychological damage:
MS HO: So, you deny stealing the car with others?
APPLICANT: I don't – yes. I wasn't – yes. I wasn't there stealing the car.
MS HO: Right. Even though you pled guilty to it?
APPLICANT: Yes.
MS HO: So, you pled guilty to it even though you say now that you didn't do it. I see. But you accept that you were found guilty?
APPLICANT: Yes. Yes.
MS HO: And convicted of this offending?
APPLICANT: Yes. I'm the type – I like – I'm not trying to shy away from anything. Like, I'm accepting my thing. I'm just trying to state the facts proper as how it was and.
MS HO: yes.
MS HO: Mr Campbell-Smith, would you agree that for many a car is one of the most valuable assets that is owned by an individual?
MEMBER: Sir, can you just acknowledge ‑ ‑ ‑?
APPLICANT: Yes. Yes. I – yes.
MS HO: And, Mr Campbell-Smith, I'm going to ask you again, why did you steal both cars?
APPLICANT: I wasn't – I didn't steal any cars.
MEMBER: … So, it's recorded here in the court brief that the car was being driven through Brisbane southern suburbs at high speed and was at times on the wrong side of the road heading into oncoming traffic and clipping other vehicles. Do you remember that?
APPLICANT: Yes. I remember that. I was trying to get out.
MS HO: And when the car finally to a stop outside the Inala Civic Centre did you exit the car then?
APPLICANT: Yes.
MS HO: And did you run?
APPLICANT: Yes. I did run.
MS HO: And were you there in the car when it rammed into the police vehicle?
APPLICANT: No. No.
MS HO: You weren't in the car?
APPLICANT: I didn't remember hitting the police – like, I didn't remember hitting the police vehicle at all.
MS HO: Right. And so when you ran away, after it smashed into the other car, what happened then?
APPLICANT: So, I know (indistinct), but like the chick friend who I was with, she was pregnant at the time so I stopped, I pulled her out and made sure she was right and then I ran.
MS HO: So, you pulled the pregnant lady out of the car?
APPLICANT: Yes.
MS HO: And you left her there?
APPLICANT: Yes. She told me to ‑ ‑ ‑
MS HO: Because the police were chasing you?
APPLICANT: Yes.
MS HO: Okay?
APPLICANT: She told me – so, she told me to run.
MS HO: Right?
APPLICANT: I only just got out of gaol so ‑ ‑ ‑
MS HO: So you ran?
APPLICANT: Yes.
MS HO: Okay. And then what happened?
APPLICANT: I stopped in a unit and got arrested.
MS HO: Right. This is after the police dog chased you, is it?
APPLICANT: Yes.
…
MS HO: Mr Campbell-Smith, earlier today you were asked by the tribunal as to whether or not you agreed that the criminal checks result, that's an accurate representation of the convictions you received?
APPLICANT: Yes.
MS HO: You agreed to that?
APPLICANT: I was – didn't look at it. I never thought I was actually charged with stealing the cars. Didn't (indistinct). I thought I was only, like, charged with being in the car.
MEMBER: But just to clarify though, Mr Campbell-Smith, you do accept that ‑ ‑ ‑?
APPLICANT: Yes. I still accept. Yes.
MEMBER: I guess I'll put the question to you this way. You do accept that the national criminal history check ?
APPLICANT: Yes. Yes.
MEMBER: report is accurate?
APPLICANT: Yes.
MEMBER: Just to confirm you do confirm that?
APPLICANT: Yes.
MEMBER: But all of the offending that you committed and were found guilty of all the offending in this criminal history check?
APPLICANT: Yes.
MEMBER: You do accept that?
APPLICANT: I accept.
MS HO: Mr Campbell-Smith, would you agree that for the victims, the people whose cars were stolen, those incidents have caused both victims a significant amount of psychological damage?
APPLICANT: Yes.
MS HO: And would you also agree that in stealing cars on several occasion you've repeatedly broken the trust of individuals in the Australian community?
APPLICANT: Yes.[28]
[28] Transcript, p 27, lines 35-45; p 28, lines 1-46; p 29, lines 1-37.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. I should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires me to give consideration to:
(a)The nature and seriousness of the Applicant’s conduct to date; and
(b)The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.
I will now consider each in turn.
The Nature and Seriousness of the Applicant’s Conduct
When assessing the nature and seriousness of the Applicant’s criminal offending or other conduct to date, I must have regard to the following relevant matters in paragraph 8.1.1 of the Direction:
…
(b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(ii) crimes committed against vulnerable members of the community (such as the elderly...), or ...government representatives or officials due to the position they hold, or in performance of their duties;
(c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d) the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e) the cumulative effect of repeated offending;
...
(g) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status.
...
I have already set out the Applicant’s offending history and do not propose to recite it here.
There is no dispute between the parties that the Applicant’s offending has been of a serious nature.[29] In my view, the following sub-paragraphs are relevant and otherwise engaged in the instant case, reflecting the same.
[29] Transcript, p 87, lines 35-41; Exhibit R1, p 13, para 24.
Paragraph 8.1.1(1)(b)(ii) looks at crimes committed against government representatives or officials due to the position they hold, or in performance of their duties. Despite accepting the accuracy of his criminal history which, as set out above, contains several convictions for crimes against police, the Applicant denies that his offending falls within this realm:
MEMBER: …have you committed any crimes against any government representative such as police or corrective services employees due to the position that they hold or in the performance of their duties?
APPLICANT: No.[30]
[30] Transcript, p 84, lines 17-22.
Notwithstanding the Applicant’s contention, the Respondent points out there can be, in fact, no doubt that the Applicant has repeatedly offended against police:
…the applicant has told the tribunal this morning that his conduct did not include offending against government officials such as police officers. However, I draw the tribunal’s attention to the applicant’s criminal record which he agreed in his oral evidence as an accurate summary or record of his offending. In particular, at TR33 the applicant was convicted of offences against police officers on 26 June 2014 as well as 30 October 2014. And further, he was convicted of a further assault against police officers on 2 February 2016. And that is at TR30.[31]
[31] Transcript, p 94, lines 26-34.
Paragraph 8.1.1(1)(c) looks to sentencing of certain non-precluded offending. In particular, when assessing the nature and seriousness of an applicant’s offending, regard must be had to the fact that the Applicant has been sentenced to terms of imprisonment for his offending. In the instant case, the Applicant has received a wide variety of sentences including probation, community service, fines and multiple terms of imprisonment (across 2022, 2021, 2017 and 2016).[32] Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy. Where a Court has sentenced an offender to a term of custodial imprisonment, as in this case, this must be viewed as a reflection of the objective seriousness of the offences involved.
[32] Exhibit Tr1, G2, p 27-37.
Paragraphs 8.1.1(1)(d) and (e) look to the frequency of the Applicant's offending and/or any trend of increasing seriousness, and the cumulative effect of the Applicant’s repeated offending, respectively. In considering these issues, it is important that I note the following points.
The Applicant has been convicted of over 70 offences since he commenced offending in 2014. In particular, the Applicant’s prolific and almost non-stop burglary and property offences (including unlawful use of motor vehicles) are extraordinary in frequency alone - there are over 50 charges in this realm.[33] The Applicant readily concedes that his offending has been frequent.[34] The Respondent contends that the Applicant's offending has been alarmingly frequent.[35] I am of the view (and find) that the Respondent’s submission can easily be accepted.
[33] Transcript, p 94, lines 9-10.
[34] Transcript, p 85, lines 14-17.
[35] Exhibit R1, p 13, para 23.
The Applicant denies that there has been a trend of increasing seriousness in his offending, he contends that it has been pretty stable - I wouldn’t say I’ve gone all out and done more than my past.[36] In my view, the Applicant’s offending has generally been confined to property and dishonesty offences, breaching orders or directions, offences against police officers in the course of their duties, and drug-related offences, and has not escalated.
[36] Transcript, p 85, lines 19-45; p 85, lines 1-7.
In relation to the cumulative effects on the Applicant’s offending, the Applicant concedes that the same has caused a great deal of stress to the community and has caused them a lot of worries ...[37]
[37] Transcript, p 86, lines 19-27.
In my view, the Applicant’s offending career demonstrates several cumulative effects:
·By stealing tens of thousands, or even hundreds of thousands of dollars[38] worth of innocent persons’ property (including motor vehicles), the Applicant shows that he has contempt for the private property rights of others;
[38] Transcript, p 63, lines 33-41.
·By frequently breaking in and burglarising innocent persons’ private homes, the Applicant has no doubt caused substantial physical damage, financial suffering, with corollary emotional anguish, inconvenience and hardship for many individuals and families, with such offending also having caused psychological distress and fear for those many members of the Australian community who have had their personal space invaded and violated by the Applicant. As Magistrate Costanzo put it in April 2022…you have caused a lot of losses and damages to people;[39]
[39] Exhibit Tr1, G2, p 39.
·By repeatedly engaging in unlawful use of motor vehicles (including participating in high speed evasion of police), the Applicant shows a recklessness and indifference to the safety of other road users and the Australian community generally;
·By using and developing an addiction to illicit substances (particularly methamphetamine), the Applicant has contributed to the circulation of harmful drugs in the community and associated criminality;
·By offending against police, the Applicant shows scorn for lawful Australian authority;
·By serially offending over his whole adult life in Australia:
othe Applicant has shown that he does not have any regard for Australian law– as Magistrate Costanzo put it in April 2022:
You have a lack of respect for the law and for other people and your lack of respect for the law is abundantly clear in your criminal history;[40] and
othe Applicant has consumed significant law enforcement and judicial time and resources – including 13 separate court appearances over 2014 to 2022;[41]
·By undertaking multiple breaches of bail, court orders and conditional liberty, and by continuing to offend after being warned, and afforded leniency, by Australian Courts, the Applicant shows disdain for the Australian criminal justice system;
·By continuing to offend (most recently in 2022) after receiving multiple terms of imprisonment (in 2021, 2017 and 2016), the Applicant shows that he has failed to experience any deterrent or dissuading effect of the progressively more severe sentences imposed on him. The Applicant has received a wide ambit of sentences. He appears to have taken nothing from the non-custodial and custodial nature of the sentences imposed. And in as much as the Applicant was not deterred by prison sentences, that enhances the seriousness of his offending;
·Taken all together, the Applicant’s offending has no doubt had an insidious impact on, and substantial financial and psychological cost to, the Australian community; and
·For this Applicant, it is clear that incarceration and detention have been the only mechanisms to prevent the Applicant from further criminal offending, and to otherwise protect the Australian community from the Applicant’s propensity for criminality.
[40] Exhibit Tr1, p G2, 39.
[41] Exhibit Tr1, G2, p 27-34.
Paragraphs 8.1.1(1)(g) looks to whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status. In this case, the Applicant concedes that he has reoffended despite being warned about the consequences of the same in relation to his migration status.[42] He says that he knew the consequences of his actions [but at the time, he] was struggling to get his substance abuse under control.[43]
[42] Transcript, p 86, lines 37-46.
[43] Exhibit Tr1, G2, p 16.
On this point, the Respondent says:
…the Applicant has continued to offend despite being expressly warned about the consequences of his offending on his visa status. After his visa was cancelled and re-instated in 2017, the Applicant continued to re-offend and received two further terms of imprisonment in 2021 and 2022. Such reoffending demonstrates contempt for a system that has striven to provide the Applicant with a second chance and illustrates an indifference to the consequences of his actions on his visa status.[44]
[44] Exhibit R1, p 13, para 23.
Conclusion about the nature and seriousness of the Applicant’s offending
I have applied each of the relevant sub-paragraphs in paragraph 8.1.1(1) of the Direction. With reference to the same, I am of the view that the totality of this Applicant’s unlawful conduct in Australia can be readily characterised as serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that, in considering the risk to the Australian community, I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.
Paragraph 8.1.2(2) provides that, in considering the risk to the Australian community, I must have regard to the following relevant factors on a cumulative basis:
(a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence…
Paragraph 8.1.2(1) & (2)(a) - The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Paragraph 8.1.2(1) creates the concept of an unacceptable risk – a risk that the community should not be expected to bear regardless of other considerations.
Paragraph 8.1.2(2)(a) requires an assessment of the nature of harm to an individual or the Australian community were the Applicant to engage in further criminal or other serious conduct.
I have already addressed in the context of paragraph 8.1.1(1)(e) the nature of the harm that the Applicant has wrought on individuals and the Australian community. Under cross-examination, the Applicant conceded that he has caused a lot of harm in the Australian community:
MS HO: …would you agree ... that you caused the individuals a lot of harm, not just in terms of the financial value of the items that are stolen, but psychological harm?
APPLICANT: …yes. I do think about the victims and what I've caused them, like what harm I've caused them, what trouble I've caused them, how they would be thinking, you know. Like, they have a home. They have – they expect to have to be – like, they're scared in safety, you know, and I come in and break into their house and take valuables, and just wreck the whole like security of their home…It's not a nice feeling, and I know I wouldn't like it if it was my house.[45]
[45] Transcript, p 34, lines 187-27.
In the Respondent's submission, if the Applicant were to reoffend in the same or a similar manner as he has in the past, he is likely to cause substantial[46] psychological, financial and potentially physical harm to members of the Australian community.[47] The Respondent also points to the sentencing remarks of Magistrate Costanzo already referred to earlier.
[46] Exhibit R1, p 14, para 25.
[47] Transcript, p 97, lines 32-37.
In undertaking its assessment, the Respondent says that the Tribunal may look to the damage already caused by the Applicant's offending in evaluating what future harm may occur if the conduct is repeated. However, they also say that there is nothing in the Direction or in any authority that suggests the Tribunal is limited, in its assessment of the potential magnitude of future harm, to assessing the harm that has been caused previously. In this regard, the Respondent contends that the Applicant's offending has placed members of the Australian community at risk of serious harm.[48]
[48] Exhibit R1, p 14, para 26.
Overall, the Respondent contends that the nature of the harm posed by this Applicant’s offending is so serious that any material risk that the Applicant might reoffend in a manner comparable to his previous offending should be considered to be one which is unacceptable.[49]
[49] Exhibit R1, p 14, para 27, 29.
In my view, the Respondent’s submissions must be accepted. Having regard to the Applicant’s offending history:
·If the Applicant were to reoffend in the same or a similar manner as he has in the past, he is likely to cause substantial psychological, financial and potentially physical harm to members of the Australian community; and
·That the Applicant's offending has placed members of the Australian community at risk of serious harm is obvious. That those risks have not, so far, manifested in more serious physical, mental or economic harm to the Applicant's victims is fortunate but it is no guarantee (or even an indicator) that those same acts would not cause serious harm in the future.
In summary, I find that the type of the harm posed, and the type of the harm already visited, is so serious that any material risk that the Applicant may again commit similar offending is one which is completely unacceptable.
Paragraph 8.1.2(2)(b) - The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) Information and evidence on the risk of the Applicant reoffending
In his Personal Circumstances Form (PCF) for the previous visa cancellation (which was revoked in 2017), the Applicant’s explanation as to the likelihood that he may reoffend was put in the following terms:
The likelihood of me re-offending further is nil due to my action while in prison being rehabilitated & having a supportive partner & beautiful children & the risk of losing them to deportation it’s in my best interest to change.[50]
[50] Exhibit Tr1, G2, p 119; Exhibit A1, p 168.
Under cross-examination, the Applicant agreed that clearly none of those factors [mentioned in the 2017 PCF referenced above] have been sufficient to stop [him] from reoffending[51] after his visa was cancelled in 2017.
[51] Transcript, p 54, lines 4-6.
In 2018, in connection with the Applicant’s parole application, the Queensland Parole Board prepared an assessment report about the Applicant. The Applicant participated in an interview for this purpose. The report records that the Applicant told the assessor, among other things:
·He is not able to obtain social assistance, he has therefore never had his own money to be able to afford his daily living expense which has motivated his offending;
·With respect to suspension of his Court Ordered Parole, [he] stated that things were initially going well upon his release [but] he heard rumours about his partner’s behaviour while he was in custody, one of his children didn’t recognise him and he had fallen in with the wrong crowd, which contributed to his relapse into substance abuse and further offending;
·He can see the benefits of ongoing incarceration, claiming that it had assisted him to mature; and
·He previously didn’t care about stealing from people as he had never had his own property which he had worked hard or cared for. He stated that upon his last release, he obtained some personal possessions and now realises how terrifying it would be for someone to come into his house and take these things from him.[52]
[52] Exhibit R2, SM1, p 73.
The Queensland Parole Board assessed the Applicant to have a Risk of Reoffending score of 16, which indicated he fell into the category of offenders who pose a high risk of further general offending:
The nature of [the Applicant’s] offending indicates a propensity for property offending, by breaking into people’s homes, when he is unable to afford basic living needs or to fund his drug use…Further offending is assessed to pose a risk of harm towards members of the general public by break, enter and steal type offending…[53]
[53] Exhibit R2, SM1, p 73-74.
In his PCF for the visa cancellation, which is the subject of the current application before the Tribunal, the Applicant provided the following explanation as to his belief about the recidivist risk he represents in Australia:
What I believe to be a risk to me re-offending in the future is substance abuse & my mental health. I’ve struggled with substance abuse since I was young. Dealing with the loss of my biological father & other trauma I’ve had as a child its also caused me to have mental health issues. But since I’ve been incarcerated I’ve been doing courses to help me deal with emotional stress and I’ve been doing counselling for drug & alcohol. I’ll also be contacting support…to help support me in the community.[54]
[54] Exhibit Tr1, G2, p 109.
In submissions to the Department of Home Affairs (DHA) to, among other things, explain the offending that happened whilst [he] was on parole in the community after [he] had been given a warning in 2017, the Applicant says:
My poor decision whilst in the community was the outcome of me failing to seek support to address my addiction to abuse substances, mental health and steady income. I am not proud of … my … decision…[55]
[55] Exhibit Tr1, G2, p 124.
Overall, the Applicant’s submissions and evidence about his risk of reoffending may be summarised as follows.
He expressed remorse for his past offending and its impact.[56]
[56] Transcript, p 82, lines 10-11.
He has repeatedly identified substance use and abuse, particularly methamphetamine addiction, and his inability to get it under control due to mental health struggles (see below),[57] as a fundamental reason for his offending:
[57] Exhibit Tr1, G2, p 109.
MEMBER: …would it be fair to say…that substance abuse, particularly methamphetamine addiction has been central to your offending?
APPLICANT: Yes.
MEMBER: It would be fair to say that?
APPLICANT: Yes.
MEMBER: …And… you would concede that you are a methamphetamine addict, would you?
APPLICANT: Not anymore, but was.
MEMBER: …And would you say that being a methamphetamine addict had distorted your moral compass, your sense of what was right and what was wrong?
APPLICANT: Yes.
MEMBER: …And for how long would you say that you were a methamphetamine addict, around how many years do you think? Would it be from about the age of 15?
APPLICANT: Yes.[58]
[58] Transcript, p 49, lines 1-20.
In relation to substance abuse, Dr Jillian Spencer (Psychiatrist) of IHMS noted on 16 August 2023 that the Applicant told her that he:
…started smoking cannabis at age 11, says he has smoked daily his whole life (except when in prison)…Started using methylamphetamines at age 15; has used on /off throughout his life. Smoked it until age 21 and then started injecting. Would inject 4x/day. Last used in 2021, was using daily at this time via [Intravenous drug use]. Was using 1g/day, or even up to 2.8g/day…. Started using suboxone in 2018. Denies heroin use. Says he has been using 64mg of suboxone daily in prison…Says he was selling it in jail. [59]
[59] Exhibit A1, p 29.
Under cross-examination, the Applicant’s evidence about his methamphetamine use was different to what Dr Jillian Spencer recovered about the same:
MS HO: Thank you. And how often – in the six- or seven-year period – how often were you using methamphetamine?
APPLICANT: So sometimes during the weeks but like – how do I say it…about three times a week.
MS HO: Okay. So three times per week. And are you able to tell the tribunal roughly how long in terms of hours you would be affected by methamphetamine every time you used?
APPLICANT: Sometimes (indistinct) for those three days. And probably like up until I was asleep. So I'd probably be affected the whole week. And then I'd go home on the weekends and have a whole week off.
MEMBER: So would it be fair to say then, that you would binge on methamphetamine for several days. You would stop. You would partially sober up a bit and then you'd commence again? You'd sober up at home?
APPLICANT: Yes.
MEMBER: And then you'd go out again and start the cycle again?
APPLICANT: Yes.[60]
[60] Transcript, p 50, lines 6-21.
In submissions to the DHA on 8 September 2023, the Applicant has also highlighted childhood trauma and associated mental health issues as a reason for his substance abuse and offending:
…throughout my journey i have made mistakes due to my mental health being unstable and drug abuse in the past i was dealing with physical and emotional trauma.when i was 6 months of age i was taken off my biological parents from child services due to my parents being alcoholics and drug abusers,and was put into the care of my aunt and uncle who i call mum and dad,i have two younger sibling who were later taken as well and put into the care of our aunt and uncle,and have been raised from them since,my biological father would still contact and visit us,however at the age of 8 i suffered the loss of my biological father due to him being hit by a train while walking home intoxicated this event has left me affected…
i grew up with the feeling of abandonment,feeling like why weren't we good enough for our parents to change,later on in life as i got older i started to smoke marijuana to cope with this feeling and started hanging out with other troubled teen that were my age,I started to run away from home,skipping school and hanging in the streets doing crime to support myself,I was 15 yrs of age when I met my partner who would not long after give birth to our first daughter.
I was living with here at her Grandmother’s house she took us in off the street and gave us a bed,her family welcomed me into their family and i am extremely grateful to have met them as they were loving and supportive towards me getting my life on track as i was also on strict bail conditions and had curfew to their address,and had to sign in to youth justice 5 days a week doing community service,picking up rubbish cleaning parks and scrubbing graffiti,however it was this same year i suffered [redacted] as it has caused me a lot of trauma mentally,physically and emotionally,due to this i suffered from Anxiety,Depression and because of this event i abused more heavy substances such as methamphetamine and other drugs to help me cope with the trauma,i was also struggling financially at the time the stresses of provideing for my family also played apart,which led me down a path of crime and led me to my incarceration…[61]
[61] Exhibit A1, p 168. Errors in original.
The Applicant filed other material with the Tribunal, which paint a slightly more nuanced picture to the foregoing explanation and historical background for the Applicant’s offending. In mid-2022, the Applicant was referred to Michael Beech, a Medical Practitioner registered in Australia as a specialist psychiatrist. Dr Beech prepared a psychiatric medico-legal report in August 2022. Dr Beech’s report records that the Applicant told him that:
…[He was] raised by his aunt and uncle…His aunt was a family support worker and his uncle a truck driver. They treated him well within a large, mixed family. There were ten children in total, comprising two full siblings and other family siblings. These days, those siblings reside in Australia or New Zealand. To the best of his knowledge, all are employed. None have been in custody.
It was a good childhood with family support. He was a happy and healthy child.
…
After school, he continued to hang around with the wrong crowd and he became involved in crime, which included break and enter offences. This was done for fun; to fit in; and to get money because he had no income and Alkirra was about to have their first child. By then, he was using cannabis "a lot' and needed to fund that too. The relationship with Alkirra was good. There was no conflict. She did not use drugs.
…
…Mr Campbell-Smith started smoking methamphetamine. There were many issues that contributed to this:
- [Redacted]
- Alkirra's pregnancy
- Court processes in play
- Financial stressors
- Alkirra's stress
When a friend introduced him to methamphetamine, he took up the offer because the drug reduced his sense of stress.
…
He remained on a Department order but, because it was with a different branch, he did not have to see the youth worker again. However, during the order he committed further offences although he was not charged until he completed the first community order. Soon after "they caught up with me" and he was placed on another community order. He re offended and was placed on yet another order for a long period until he was 17 years old. That offending occurred because:
- Methamphetamine and cannabis use to fund
- No other income
- The stress of having a child
- Wanting good stuff
…
Mr Campbell-Smith said his re-offending occurs because of:
- He has a drug habit
- The stress of "living outside" prison
- The stress relates to:
"I don't know how to cope"
"I find it easier to live in gaol"
He explained that he finds it stressful to deal with the responsibilities of being a parent of two children without income support and stability. He struggles to deal with conditions such as curfew, signing in, drug testing, and other appointments. It is difficult to live in the community without income, especially "having to start every time from scratch ... with only the clothes on my back'.[62]
[62] Exhibit A1, p 175-189.
Dr Beech’s report also discloses that, in addition to having methamphetamine…and cannabis dependence, the Applicant misuses suboxone in prison.[63]
[63] Exhibit A1, p 180.
Dr Beech diagnosed the Applicant with several different conditions:
In my opinion, Mr Campbell-Smith has:
- Polysubstance use disorder in partial remission within a controlled environment
- Borderline intellectual functioning (based on learning difficulties, formal IQ 76, and difficulties living in the community)
- Anti-social personality disorder (based on his history of disturbed childhood behaviour, conduct disorder, juvenile delinquency, and adult criminality)
- Other Specified Trauma-and Stressor-Related Disorder ("OSTSRD"). I prefer this diagnosis to one of post-traumatic stress disorder ("PTSD") because I am not convinced he meets full criteria for PTSD.[64]
[64] Exhibit A1, p 185.
In opining on the rehabilitation recommendations for the Applicant, Dr Beech expressed his views in the following terms:
I believe that he requires psychiatric and psychological treatment. With regard to the incident-related issues, I would recommend psychological counselling. This would be in the order of 20 to 40 sessions of therapy over a two-year period. This would take into account the trauma-related symptoms per se but also address the related substance use issues, stress management issues, and general day to day living issues, and community function…
Into the future, it is likely that he will suffer residual disability related to intrusion phenomena, which he may resort to drugs.
It is difficult to ascertain his prognosis at this point. Worryingly, he continues to use diverted substances in prison. He has few skills for living in the community and he is prone to deterioration with stress. There are few supports. At present, I believe there is a risk that he will return to drug use in the community, in which will perpetuate his cycle.[65]
[65] Exhibit A1, p 187-188.
Finally, the Applicant maintains that his daughters, and his family/community are protective factors, which will reduce the likelihood of him from re-offending.
The Applicant says that he is now a low risk of reoffending in a similar way to his previous offending. He said that there might be a slight risk[66] in this regard:
MEMBER: Just looking [at]…the likelihood of [you] engaging in further criminal or other serious conduct, what do you say is the likelihood that you would re-offend? …thinking on …a scale of 1-10, one being very likely to offend, 10 being absolutely not offending again, where do you think on that risk continuum you sit?
MR CAMPBELL-SMITH: So if I’m being honest on… I’m at a nine or an eight.[67]
[66] Transcript, p 88, lines 1-5.
[67] Transcript, p 81, lines 7-25.
The Respondent contends that there is a real and appreciable risk of the Applicant engaging in further criminal conduct despite his statements.[68]
[68] Exhibit R1, p 16, para 31.
Separately, the Tribunal has before it one support letter from Toni-Lee Bannerman, which indicates that she has always found the Applicant to be an honest, reliable, trustworthy young man. The letter does not address the Applicant’s criminal history in detail and provides no insight into the Applicant’s reoffending risk - I give this letter some limited weight in relation to the Applicant’s character.[69] Additionally, I note that despite the Applicant having a very large family (more than 100 members) in Australia, and despite his efforts in trying to get support letters from them, he found it hard to get them to do it, as it was not a priority for them.[70] Ultimately, none of the Applicant’s family members provided a support letter or appeared as a witness for the Applicant.
[69] Exhibit A1, p 192.
[70] Exhibit A1, p 30.
(ii) Evidence of rehabilitation achieved by the Applicant by the time of this decision
The Applicant’s evidence indicates that substance abuse (in particular, methamphetamine addiction) has been central to his offending. He has also nominated other mental health issues associated with childhood trauma[71] (including the failure to address the same)[72] as important drivers to his offending. Other evidence before the Tribunal, especially Dr Beech’s report, indicates further triggers for offending, as set out above.
[71] Transcript, p 54, lines 11-19.
[72] Transcript, p 39, lines 3-11.
Based on the materials before the Tribunal, the Applicant appears to have sought out a range of community organisations for counselling and education across drug and alcohol abuse and other matters, while incarcerated or in immigration detention. The Applicant has also engaged in a range of courses across many of the same topics and more while in controlled environments:
Date Organisation/ Program Engagement Type Course Details Outcome 18 May 2022 Yourtown, “Kicking habits program” Alcohol and drugs rehabilitative program Individual and group workshops
Sessions held once per week, over 5-week period
Topics included relapse prevention, harm minimisation around drug use, goal setting, and the impacts of crime
6 x certificates of completion awarded between 17 and 18 May 2022 7 April 2023 Universal Class, “Drug and Alcohol Abuse 101” course Alcohol and drugs rehabilitative program Online modules
7 contact hoursCertificate of completion awarded on 7 April 2023 15 June 2023 – 18 September 2023 QuIHN Therapeutic Service Counselling/support Therapeutic service that provides case management, counselling and group work regarding alcohol and illicit drug use Applicant completed intake on 15 June 2023
Applicant completed 2 one-on-one counselling sessions since 11 September 2023
21 August 2023 – 13 September 2023 Lives Lived Well Counselling/support Based in Spring Hill
Individual phone appointments aimed at devising strategies to prevent relapse
Completion of phone appointments - Opioid Substitute Therapy Program Therapeutic program No further information provided to Tribunal on materials - - Drug Arm Counselling/support Based in Annerley
No further information provided to Tribunal on materials
-
The Applicant put the nature of his rehabilitation work in the following terms:
MS HO: Mr Campbell-Smith. You referred to the fact that you – well you said that you've put in a lot of work now and you've sought support. Can you tell the tribunal more about the work that you put into, I assume your drug addiction and the support that you sought?
APPLICANT: Yes, so I (indistinct) seeking support from Quinn, Lives Lived Well, Drug ARM. I (indistinct) but there was a couple. But Drug ARM, they have drug and alcohol counselling that – they have helped me a little over the phone counselling, like teaching me strategies and stuff. And I've learned also from Kicking the Habit. It's another drug and alcohol course that teaches you how to identify when you're at risk and how to assess and cope with the situation by giving you coping strategies such as identifying when I'm at risk, like such as if I see old (indistinct) or if I see an old dealer, or if I – things that might trigger me into relapsing. And kind of (indistinct). So instead of – so one of my things was thinking, consequence – thinking, consequence ‑ ‑ ‑
MS HO: Consequences?
APPLICANT: Yes, consequences. But since being back in this place again, being locked up say if I probably (indistinct) that lead me – might lead me down to where I'm relapsing or breaking in (indistinct) arrest. So what's the consequences of that? Jail, never seeing my kids. How can I prevent that? Well, I can walk away, keep myself occupied, keep doing positive things to do that (indistinct). (Indistinct) my counsellor, talk to my family. There was heaps. I had a prevention plan too. I had a drug (indistinct) that sets out like all the things that I should be doing – like – and where I see myself in seven years.[73]
[73] Transcript, p 54, lines 22-45.
Critically, the Applicant claims that he is not anymore a methamphetamine addict. He says that he commenced the Opioid Substitution Therapy Program (OSTP) and it has helped him to refrain from substance abuse while in a controlled environment:[74]
And it's only recent now that I've gotten my substance abuse – how do I say it – I'm rehabilitated. Or addressing my substance abuse problem by going on the OSTP program which is the opiate substance (indistinct). It's the opioid substitute therapy program, and it's helped me a lot. So it's helped me refrain from any other illicit drugs such as cannabis, meth. And yes, we're in a detention centre but there's still harmful substances (indistinct), they're not fully safe since you can still get hold of all that stuff. And that program can help me (indistinct) refrain from it all.[75]
[74] Transcript, p 46, lines 3-4.
[75] Transcript, p 46, lines 23-31.
On the mental health and stress[76] front, the Applicant points to having participated in some recent sessions with Dr Jillian Spencer (Psychiatrist) and Sujata Kumar (Psychologist)[77] while in Immigration Detention over 2023.[78] The Applicant has also recently had sessions with an external Psychologist.[79]
[76] Transcript, p 46, lines 1-2.
[77] Exhibit A1, p 44.
[78] Exhibit A1, p 44.
[79] Transcript, p 59, lines 4-21; Exhibit A1, p 199.
I should also point out that, other than the foregoing engagement, the Applicant’s evidence is that he has never received ongoing treatment from a psychologist or mental health professional prior to going into immigration detention:
MS HO: So you've never received treatment – ongoing treatment from a psychologist in the past apart from when you arrived at [Immigration Detention]?
APPLICANT: No.[80]
[80] Transcript, p 60, lines 3-4.
In August 2023, Dr Spencer’s notes record the Applicant as telling her that Other than ADHD, denies ever seeing a GP or psychologist regarding his mental health in the community.[81]
[81] Exhibit A1, p 29.
Overall, the Applicant contends that his rehabilitation journey is well progressed:
MEMBER: So where would you say on the rehabilitation journey, one being at the beginning and 10 being at the end, where do you think you sit on that continuum, Mr Campbell-Smith? The rehabilitation journey, where do you think?
APPLICANT: There's always a chance of relapse. So that's ‑ ‑ ‑
MEMBER: But where do you think you are today?
APPLICANT: To be honest I would say I'm a seven or an eight.[82]
…
APPLICANT: The reason why I don’t say ten is because what I’ve learned through the courses is the recover is not fully over. You’re not fully recovered (indistinct). I’ve learned coping strategies, I’ve learned exit strategies, I’ve learned to identify and minimising harm.[83]
[82] Transcript, p 55, lines 1-10.
[83] Transcript, p 81, lines 1-5.
In the Respondent’s submission, the Tribunal can have no confidence that the Applicant will not return to drugs, refrain from engaging in antisocial behaviour and refrain from committing further offences:[84]
[84] Exhibit R1, p 17, para 32.
(a) the Applicant's criminal history indicates a strong influence of drug use. This is evident not only in the Applicant's repeated drug offending, but also the remarks of the sentencing Magistrate, who acknowledged that the Applicant experienced difficulty with drugs. The Applicant has reported that he commenced using cannabis at the age of 8 years and methamphetamines from the age of 17 years. He has also conceded that his addictions, including to drugs, have led to his criminal offending. The Respondent notes also that the Applicant has been diagnosed with a "polysubstance use disorder in partial remission within a controlled environment".
(b) despite his acknowledgement of the connection between his drug use and offending, the Applicant's evidence does not indicate that he has made any long- term or concerted efforts to address his drug offending. The Respondent notes that there is no evidence from a drug counsellor or mental health practitioner to indicate that the Applicant has made any concerted efforts to address his drug use such that there is no risk of the Applicant relapsing into further drug use, should he be released into an 'uncontrolled' environment (such as the broader community). The Respondent therefore contends that the Applicant's risk of offending in connection with his drug use is very high;
(c) the Applicant's past efforts toward rehabilitation and previous interactions with the criminal justice system have not dissuaded him from re-offending in the past. His past actions demonstrate a predisposition for offending which has survived any rehabilitative intervention that has been offered by society to help get the Applicant back on track. In the Respondent's submission, this pattern indicates an increased risk that the Applicant will reoffend in the future. The Respondent notes the Applicant's history includes:
(i) On 21 May 2021, the sentencing Magistrate observed that the Applicant re-offended just three weeks after having spent 469 days in pre- sentence custody. At the time of his offending, the Applicant was serving a suspended term of imprisonment;
(ii) In April 2017, the Applicant stated to the Department that the likelihood of him re-offending was nil as he had completed rehabilitation, has a supportive partner and is aware of the risk of being deported if he were to reoffend. On 3 November 2020, the Applicant was convicted for several burglary and property offences;
(iii) On 11 March 2016, the Applicant was warned by the District Court of Queensland of the consequences of re-offending whilst subject to terms of conditional liberty. On 17 May 2016, the Applicant was convicted of breach of probation order and breach of community service order;
(d) the Applicant has continued to use drugs and engage in anti-social conduct whilst in prison. The Applicant was involved in a range of incidents including assaulting a prisoner, possession of prohibited article, and testing positive in urinalysis tests. Further, the Applicant reported that he was selling suboxone whilst in jail for $500 per strip. The Respondent contends that the Applicant's explanation that 'it's hard to avoid conflict in that type of environment when your safety is threatened' indicates that the Applicant has limited insight into his behaviours;
(e) further, there is no evidence to suggest that the Applicant has made any long-term or concerted efforts to address other factors which have contributed to his offending, including his other mental health conditions and childhood trauma; and
(f) the motivating factor of his children and family has not deterred the Applicant from re-offending in the past.[85]
[85] Exhibit R1, p 16-17, para 31.
For the foregoing reasons, the Respondent contends that the Applicant presents a heightened and unacceptable risk to the Australian community if the cancellation decision is revoked.[86]
[86] Exhibit R1, p 17, para 32.
Conclusions about risk
Based on the relevant information before me, I draw the following conclusions:
·The type of the harm posed, and the type of the harm already visited, by the Applicant is so serious that any material risk that the Applicant may again commit similar offending is one which is completely unacceptable;
·While I can accept that the Applicant genuinely believes that he poses a low risk of reoffending based on what he sees as considerable efforts to engage in (and seek to engage in) therapy, counselling and education about, or in relation to, the causes underlying his offending, there is no supportive/favourable independent evidence that speaks to the extent of his rehabilitation. There is equally no supportive/favourable independent evidence that speaks to his recidivist risk;
·I do not accept that the Applicant’s rehabilitation efforts to date constitute sufficient and durable evidence of rehabilitation. I also do not accept the Applicant’s characterisation of his rehabilitation being substantially progressed. I note that he has, in the past, been given to mischaracterise both the extent of his rehabilitation and recidivist risk. To be clear, this is not an adverse finding about the Applicant’s credibility. It seems to me that the Applicant grossly underestimates the very significant challenges he faces to recover and rehabilitate from the complex drivers to his offending: long-term substance abuse (in particular, methamphetamine addiction) has been central, together with long-term mental health issues and stresses;
·The Applicant’s drivers to his offending are clearly deep-seated challenges for the Applicant for which the clinical evidence (from Dr Beech) suggests will require years of professional support to properly address. Taking this into account, and having regard to what the Applicant has done to date in a controlled environment, the Applicant’s rehabilitation efforts to date can be best described as limited and at a preliminary stage;
·Even with years of professional support, Dr Beech is of the view that there appears to be a clear risk that the Applicant will struggle and return to drug use, which will perpetuate a continued cycle of offending;
·The Applicant’s family (including his children) do not appear to have been protective factors in the past, and I have my doubts that they will be strong protective factors in the future; and
·I otherwise accept the Respondent’s submissions.
Conclusion: Primary Consideration 1
With reference to the weight attributable to this Primary Consideration 1:
(a)I have found that the nature and seriousness of the Applicant’s conduct to date has been, serious;
(b)I repeat my finding that were the Applicant to reoffend, the nature of the harm that he would be likely to cause would be substantial psychological, financial and potentially physical harm to members of the Australian community; and
(c)I have assessed the Applicant’s recidivist risk of engaging in further criminal or other serious conduct (upon return to the community) as high by taking into account available information and evidence before me informative of such risk.
The Applicant says that this Primary Consideration 1 weights against him.[87] My analysis of the material before the Tribunal leads me to the finding that this Primary Consideration 1 carries a heavy level of weight against revocation of the mandatory cancellation of the Applicant’s visa.
[87] Transcript, p 88, lines 31-35.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2) This consideration is relevant in circumstances where:
a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3) In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a) the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i) the extent to which the person accepts responsibility for their family violence related conduct;
ii) the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii) efforts to address factors which contributed to their conduct; and
d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non-citizen’s migration status, should the non-citizen engage in further acts of family violence.
The parties contend[88] (and I find) that there is no evidence to indicate that the Applicant has engaged in conduct which is relevant to this Primary Consideration 2.
[88] Exhibit R1, p 17, para 34; Transcript, p 89, lines 1-8.
Conclusion: Primary Consideration 2
I find that this Primary Consideration 2 has neutral weight in the instant case.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
The Direction requires decision-makers to have regard to the strength, nature and duration of an Applicant’s links to the Australian community. The requisite considerations to be addressed are contained in paragraph 8.3:
(1) Decision-makers must consider any impact of the decision on the non-citizen’s
immediate family members in Australia, where those family members are
Australian citizens, Australian permanent residents, or people who have a right
to remain in Australia indefinitely.(2) In considering a non-citizen’s ties to Australia, decision-makers should give
more weight to a non-citizen’s ties to his or her child and/or children who are
Australian citizens, Australian permanent residents and/or people who have a
right to remain in Australia indefinitely.(3) The strength, duration and nature of any family or social links generally with
Australian citizens, Australian permanent residents and/or people who have a
right to remain in Australia indefinitely.(4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a) the length of time the non-citizen has resided in the Australian community, noting that:
i. considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii. more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii. less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
Applicant's family ties in Australia
The Applicant contends that his family in Australia include:
his two biological daughters, L1 (born 2014, aged 9) and L2 (born 2016, aged 7), his daughters' mother (his former partner, Alkirra Duncan-Jackson), Alkirra Duncan-Jackson’s mother (Donna Duncan); and Alkirra Duncan-Jackson’s grandmother (Gayle Jackson);
(b)his adoptive family including his mother, father, brothers and sisters; and
(c)around 172 extended family members who reside in Australia.[89]
[89] Exhibit Tr1, G2, p 104, 106, 108 & 118; Transcript, p 20, lines 19-28.
The Applicant states that, generally, the impact of a negative decision would cause stress to his family.[90] As is explained in more detail under the consideration of Primary Consideration 3 in these reasons, the Applicant says that the impact on his daughters would be devastating.[91] At the hearing, the Applicant provided some evidence about the nature of his good relationship with Donna Duncan and Gayle Jackson,[92] but nothing of substance about the impact of a revocation decision on the same.
[90] Exhibit Tr1, G2, p 108.
[91] Exhibit Tr1, G2, p 105.
[92] Transcript, p 20, lines 1-15.
The Respondent accepts that the Applicant has close ties to his immediate family members.[93] However, the Respondent generally submits that, apart from his daughters and their mother, there is no independent evidence to support the Applicant's claim that other members are Australian citizens or have the right to remain in Australia indefinitely. The Respondent says that the Tribunal should exercise caution in placing any weight on the impacts on the Applicant's other family members in the absence of evidence about (1) the nature of the relationship; and (2) their right to remain in Australia.[94]
[93] Exhibit R1, p 18, para 38.
[94] Exhibit R1, p 18, para 39.
The Respondent elaborated on the foregoing contentions in their closing submissions, focusing on the absence of independent evidence about the Applicant’s relationship with his other family members:
MS HO: In relation to primary consideration 3, the strength, nature and duration of ties to Australia, the respondent notes that the applicant’s family members including his siblings, his daughters, adoptive parents and cousins reside in Australia. The respondent accepts that a decision to affirm the decision under review may have an adverse impact upon the applicant’s immediate family members, in particular his daughters and his siblings. However, in the absence of any statements from those family members the tribunal should have some doubt over the nature of the applicant’s relationships with his family members.
MS HO: Further, the applicant has told the tribunal that he has 60 cousins and 86 nieces and nephews and he is part of a large family. The respondent understands that the applicant claims he has a relationship with each of his nieces and nephews, although he does admit that his relationship with his nieces and nephews of his brothers and sisters is stronger. Again, in the absence of any statements from family members to corroborate the nature of the applicant’s relationship with his extended family members, the tribunal should have some doubt over the strength of the applicant’s relationships with his family.
MEMBER: So, just to round that point out, what we have to go on in relation to Mr Campbell-Smith’s relationship with his family, his – well let’s just characterise his family leaving aside his daughters for a moment.
MS HO: Yes.
MEMBER: You say that, if I’m hearing you correctly, you say that all we really have to rely on in that regard is the evidence that Mr Campbell-Smith has given to the tribunal over the course of this proceeding.
MS HO: That’s correct.
MEMBER: And you say that the absence of letters of support and other evidence, including other family members being a witness for Mr Campbell-Smith to speak to the nature and durability of those ties, are you saying that I should make an adverse – that I should view that adversely in respect of this? Or am I putting words in your mouth?
MS HO: No. Thank you, Member. I refer to the ruling in Jones v Dunkel and note that the tribunal – it’s open to the tribunal to make an adverse inference in the absence of written statements from the applicant’s family members.
…
MS HO: In the absence of statements from the applicant’s family members, the respondent submits that the tribunal should have some doubt over the nature and the strength of the applicant’s relationships with each of his individual family members.[95]
[95] Transcript, p 101, lines 23-47; p 102, lines 1-29.
The Applicant says that I should give considerable weight to his ties to Australia for his daughters.[96]
[96] Transcript, p 89, lines 1-16.
On the materials before me, I am minded to draw the following conclusions:
·The Applicant has close ties to his two biological daughters, L1 and L2 (who are Australian citizens), and his daughters' mother (his former partner, Alkirra Duncan-Jackson), and these persons will be adversely impacted by the Applicant’s removal from Australia – strong weight should attach to these persons;
·the Applicant appears to have close ties with Donna Duncan and Gayle Jackson but there is little to substantiate that these persons will be adversely impacted by the Applicant’s removal from Australia;
·while the Applicant’s evidence is that he has a close relationship with his adoptive family including his mother, father, brothers and sisters; there is no independent evidence as to the nature of these relationships, nor the relationships with his 170 plus extended family members, who the Applicant says reside in Australia;
·it is a striking feature of this case that not one of the Applicant’s immediate family or his extended family members provided a support letter/witness statement or was otherwise called by the Applicant to appear as a witness at the Tribunal – it is hard for me to accept that the Applicant has a close or positive relationship with these persons in circumstances where no one was called to attest to (1) the nature and quality of the Applicant’s family relationships or (2) the impact on family members should the Applicant be removed from Australia; and
·on the basis of the foregoing point, and in absence of independent or corroborating evidence as to the citizenship/residency status of the Applicant’s immediate family or his extended family members in Australia, it is both (1) unclear that any of these relevant persons will be adversely impacted by the Applicant’s removal from Australia; (2) even if they will be adversely impacted, I cannot place much weight on the same for the purpose of this Primary Consideration 3.
Applicant’s other ties to Australia
Sub-paragraph (d): while I can accept the Applicant’s evidence as to what he believes will be the likely impact that separation would specifically have on the Applicant’s daughters, there is no independent evidence of the same. There does not appear to be any obvious impediment to the Applicant having contact with his daughters via electronic means from New Zealand.
Sub-paragraph (e): the evidence indicates that L1 and L2 are cared for by their mother and grandmother,[126] who fulfil parental roles.
[126] Transcript, p 65, lines 5-18.
Sub-paragraph (f): although the Tribunal did not receive or hear any evidence from either of L1 and L2, I accept the Applicant’s evidence that his daughters wish their father to remain in Australia.
Findings about L1 & L2
I am of the view that the evidence around the best interests of L1 and L2 in Australia, who would be affected by a non-revocation decision, is a moderately important feature of this case. In my view, on balance, revocation would be in the best interests of L1 and L2.
Other minor children
The Applicant’s PCF nominates three minor nieces, M1, A1 and B1; and two minor nephews, T1 and T2[127] in Australia. The PCF does not state the date of birth for each of these people, nor does the PCF provide their address details. The Applicant says that he sees his nieces and nephews during school holidays, on public holidays and during family events and that his absence would cause stress.[128] At the hearing, the Applicant did not provide cogent evidence about these people and offered little to substantiate his contention that it would be in their best interests that he remain in Australia. He concedes that he does not play a parental role with any of these children and contends that very little weight should be given by the Tribunal in considering the same.[129]
[127] Exhibit Tr1, G2, p 106.
[128] Exhibit Tr1, G2, p 107.
[129] Transcript, p 78, lines 4-9.
The Respondent contends that limited weight should be given to the Applicant's relationship with his nieces and nephews in circumstances where there is no evidence:[130]
(a) to confirm his nieces' and nephews' age; and
(b) which indicates that the Applicant's relationships with his nieces and nephews rise above the ordinary relationship that might exist with an uncle, or that the Applicant makes any significant contribution toward his nieces' and nephews' care.
[130] Exhibit R1, p 21, para 51.
In my view (and I find that) to the extent that M1, A1, B1, T1 and T2 are minors in Australia, revocation would be in their best interests. I accept the Respondent’s submissions as to the weight applicable to these persons.
Conclusion: Primary Consideration 4
I find that this Primary Consideration 4 carries a moderate, but not determinative, weight in favour of revocation.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.[131]
[131] Paragraph 8.5(1) of the Direction.
The Direction makes clear that the Australian community’s expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. The Direction further explains:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.5(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.[132]
[132] Paragraph 8.5(4) of the Direction. Paragraph 8.5(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.
With reference to the propositions in paragraph 8.5(1) of the Direction, the sub-paragraph’s architecture, to my mind, can be expressed thus:
(a) the Australian community expects non-citizens to obey Australian laws while in Australia; and
(b) as a norm, where a non-citizen has either:
· breached the expectation in the immediately preceding sub-paragraph (a); or
· there is an unacceptable risk that the non-citizen will breach the expectation in the immediately preceding sub-paragraph (a);
then, the Australian community expects that the Australian Government will not allow such a non-citizen to enter or remain in Australia.
In addition to the guidance provided by paragraph 8.5(1) of the Direction, paragraph 8.5(2) of the Direction directs that a non-revocation of the mandatory cancellation of a visa, 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 be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following relevant kind:
…
(d) commission of crimes against government representatives or officials due to the position they hold, or in performance of their duties;
…
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[133] This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.[134] Accordingly, I can safely proceed on the basis that the expectations of the Australian community are to be determined by reference to Direction 99 itself, without undertaking an independent assessment of community expectations.[135]
[133] Paragraph 8.5(3) of the Direction.
[134] Paragraph 8.5(4) of the Direction.
[135] See also: FYBR v Minister for Home Affairs [2019] FCAFC 185, [73] - [75] (Charlesworth J), [103] - [104] (Steward J).
The Respondent contends that the Australian community would expect the Applicant's visa to be refused given the nature of his offending in circumstances where he has been convicted of a large number of dishonesty and stealing offences.[136] In my view, this must be accepted. The sheer scale and near relentlessness of the Applicant’s criminal conduct represents a self-evident failure to obey Australian laws, engaging the expectation that the Applicant should not be allowed to remain in Australia.
[136] Exhibit R1, p 22, para 56.
Even if the Applicant’s dishonesty and stealing offences did not engage the above expectation, a question must arise as to whether the Applicant’s other offending and conduct triggers the same.
The Applicant claims that he has never committed any crimes against any government representative such as police or corrective services employees due to the position that they hold or in the performance of their duties.[137] However, this claim must be rejected because the Applicant’s criminal history discloses offending against police:
MS HO: I note also that the applicant has told the tribunal this morning that his conduct did not include offending against government officials such as police officers. However, I draw the tribunal’s attention to the applicant’s criminal record which he agreed in his oral evidence as an accurate summary or record of his offending. In particular, at TR33 the applicant was convicted of offences against police officers on 26 June 2014 as well as 30 October 2014. And further, he was convicted of a further assault against police officers on 2 February 2016. And that is at TR30.[138]
[137] Transcript, p 84, p 17-22.
[138] Transcript, p 94, lines 26-34.
Accordingly, I find that the Applicant has engaged in conduct under the auspice of paragraph 8.5(2) in relation to the commission of crimes against government representatives or officials due to the position they hold, or in performance of their duties. It follows that, observing the norm stipulated in paragraph 8.5(1), and in accordance with the guidance provided by the principles set out at paragraph 5.2 of Direction 99, the Australian community would expect that the Applicant should not continue to hold a visa on account of the serious nature of his past offending.
The Applicant contends that this Primary Consideration 5 weighs moderately against him.[139] The Respondent’s statement of facts, issues and contentions says that the community's expectations ought to weigh moderately to heavily against revocation.[140] However, the Respondent’s closing submissions at the hearing reduced the weight (to moderate) which they say ought to apply against revoking the visa cancellation decision.[141] I cannot agree with the parties’ submissions that this Primary Consideration 5 weighs only moderately against revocation. In my view, this is a case in which the nature and veracity of the Applicant’s offending is so serious (and the risk that it will continue so clear), that the Australian community’s expectations must weigh heavily against revoking the visa cancellation decision.
[139] Transcript, p 89, lines 36-47; p 90, lines 1-14.
[140] Exhibit R1, p 22, para 56.
[141] Transcript, p 104, lines 33-43.
Conclusion: Primary Consideration 5
In weighing the applicable factors, I find that Primary Consideration 5 weighs heavily against revoking the decision to mandatorily cancel the Applicant’s visa.
OTHER CONSIDERATIONS
In making a decision under subsection 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
Other Consideration (a): Legal consequences of decision under section 501 or 501CA
Direction 99 provides that decision-makers must “be mindful” that unlawful non-citizens are liable to removal from Australia as soon as practicable, and in the meantime, detention.[142] Accordingly, the Tribunal is required to have regard to these legal consequences in reviewing an application.
[142] Paragraph 9.1(1) of the Direction.
If the reviewable decision is affirmed, the legal consequence for this Applicant is that he would be removed from Australia and deported to New Zealand.
Australia owes certain non-refoulement obligations under international treaties and covenants. Paragraph 9.1(3) of Direction 99 provides that international non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim, as is the case in the instant application.
The Applicant has made no non-refoulement claims in this application.[143] In any case, as the Respondent contends, no non-refoulement obligations appear to apply to the Applicant, nor does the information before the Tribunal indicate that non-refoulement obligations arise in relation to the Applicant.[144] It follows that this consideration is not relevant to the instant case.
[143] Transcript, p 90, lines 16-38; p 91, lines 12-19.
[144] Exhibit R1, p 22, para 58.
In my view (and I find), it follows that Other Consideration (a) carries neutral weight in the instant case.
Other Consideration (b): Extent of impediments if removed
Paragraph 9.2 of the Direction guides a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant says that this Other Consideration (b) weighs strongly in favour of revoking the cancellation decision.[145]
[145] Transcript, p 93, lines 1-14.
In the Applicant’s PCF dated 17 October 2022,[146] in response to the questions asking (i) whether he has any concerns about what would happen to him if he were returned to New Zealand; and (ii) are there any other problems he would face, he said:
…my concerns are…my daughters will grow fatherless and have to deal with the same stress & trauma I did when my father died.
I wouldn’t be able to see my daughter(s) as their mother doesn’t want them to leave the country.[147]
[146] Exhibit Tr1, G2, p 92-111.
[147] Exhibit Tr1, G2, p 110.
In the Applicant’s PCF dated 26 April 2017,[148] in response to the same questions as above, he said:
Separation disorder & depression. Fear of not being able to see or hold my partner & kids.
Without my partner & kids to guide me Straight I fear I’ll get into more trouble. Fear of loseing contact with my beautiful partner & kids.[149]
[148] Exhibit Tr1, G2, p 112-130.
[149] Exhibit Tr1, G2, p 121-122. Errors in original.
The foregoing sentiments were peppered throughout the Applicant’s materials. Reflecting the same, at the hearing, the Applicant submitted that he would face considerable emotional hardship if the decision under review is affirmed (and accordingly he has to return to New Zealand). In this regard, he focused on the impact of not physically seeing his family, especially his daughters:[150]
[150] Transcript, p 91, lines 21-47; p 92, lines 1-8.
MEMBER: Okay. All right. So let’s now move to the other consideration, the extent of impediments if removed. …Can you describe to me the difficulties, the challenges, the hardships that you would face if you were returned to New Zealand?
MR CAMPBELL-SMITH: My family not having support, not being able to see my daughters, having no contact with my daughters at all.
MEMBER: So you’re saying that you would not contact your daughters if you were returned to New Zealand?
MR CAMPBELL-SMITH: Probably I might not be able to see them.
MEMBER: So you would contact them by phone, by Facetime or WhatsApp if you were returned to New Zealand?
MR CAMPBELL-SMITH: Yes, but (indistinct) to see the kids (indistinct). I’m still in jail.
MEMBER: So whilst you’ve been incarcerated and whilst you’ve been in immigration detention you have maintained your relationship with your kids via WhatsApp or Facetime. Is that correct?
MR CAMPBELL-SMITH: Yes.
MEMBER: Okay. So can you describe for me some of the other impediments you might face?
MR CAMPBELL-SMITH: That’s pretty much it, just no family support, no family – not being able to see my kids.
On the balance of matters under paragraph 9.2 of the Direction around the extent of impediments faced by the Applicant if removed, the Applicant concedes that:
·he would not face any substantial language or cultural barriers if he was returned to New Zealand;[151] and
·the social, medical and economic support available to him in New Zealand would not present a challenge or difficulty to him to establishing himself and maintaining basic living standards in New Zealand.[152]
[151] Transcript, p 92, lines 10-14.
[152] Transcript, p 92, lines 16-20.
The Respondent acknowledges that the Applicant will face emotional hardship if he is returned to New Zealand.[153] The Respondent says that they do not seek to minimise this hardship[154] but contend that, overall, the Applicant would face only limited initial impediments if he is returned to New Zealand:[155]
MS HO: [The Applicant].. has agreed that he would not face any challenges in terms of obtaining social or medical supports…there’s no evidence to suggest that the applicant is not able to access health, mental health care and social support the same as other New Zealand citizens.
The respondent also notes that the applicant has recently completed some work qualifications and those might assist him in finding a job. The applicant has also told the tribunal that he’s been able to arrange support for his substance addiction through Quinn and also counselling through Lives Lived Well whilst he is in immigration detention. The respondent submits that the applicant will – this demonstrates that the applicant will be able to make arrangements for himself in New Zealand as he has done in the past.[156]
[153] Transcript, p 105, lines 4-7.
[154] Exhibit R1, p 23, para 62.
[155] Transcript, p 105, lines 7-9.
[156] Transcript, p 105, lines 12-22.
The Respondent furthermore submits that:
·the Applicant was born in and spent his childhood years in New Zealand, indicating that he would not suffer any language or cultural barriers;
·the Applicant has obtained qualifications in prison which will assist him to find employment;
·the same level of support is available to the Applicant as is available to other citizens of New Zealand, including support for the Applicant's mental health and conditions, and drug addiction.[157]
[157] Exhibit R1, p 23, para 62.
Based on the parties’ submissions and the materials before the Tribunal, I am of the view that:
·Sub-paragraph 9.2(1)(a): The Applicant is around 26 years old. I do not consider his age to be an impediment to him re-establishing his life in New Zealand. The Applicant suffers from mental health issues (including arising from substance abuse, and childhood trauma) and other health conditions including a Hepatitis C infection, a diagnosis for ADHD and foetal alcohol syndrome (FASD).[158] These are obviously obstacles for the Applicant in re-establishing and maintaining basic living standards in New Zealand in the short term. That being said, as the Applicant concedes, he will be able to access medical and related health services in New Zealand. Accordingly, I consider that the Applicant’s mental and other health conditions can be adequately managed over time in New Zealand, and do not represent medium to long-term impediments.
·Sub-paragraph 9.2(1)(b): The Applicant was born in New Zealand and lived there for most of his childhood. There are no claims that he will face language or cultural barriers.
·Sub-paragraph 9.2(1)(c): I have earlier found that the Applicant’s state of health will not represent medium to long-term impediments to his return and resettlement to New Zealand. There are no claims that social, medical and/or economic support will be unavailable to the Applicant in New Zealand. Accordingly, these elements do not appear to be impediments to the Applicant establishing himself and maintaining basic living standards in New Zealand.
·It is clear that the Applicant’s physical distance from his family (especially his daughters) in Australia will be an emotional hardship on the Applicant if he is returned to New Zealand. However, the Applicant appears to have been managing this hardship for some years already, while incarcerated or in immigration detention, by maintaining electronic contact with his family. He has pledged to continue to do so if returned to New Zealand.
·Overall, I am of the view (and find) that this Other Consideration (b) confers a moderate, but not determinative, amount of weight in favour of revocation of the delegate’s decision under review.
[158] Exhibit A1, p 180, para 365-367.
Other Consideration (c): Impact on victims
There is no evidence from any victims of the Applicant’s offending as to the impact the decision would have on them. Overall, I find that this Other Consideration (c) is of neutral weight.
Other Consideration (d): Impact on Australian business interests
The Applicant does not claim, and there is otherwise nothing on the materials before me to suggest, that a non-revocation decision would significantly compromise the delivery of a major project or important service in Australia. Overall, I find that this Other Consideration (d) is of neutral weight.
Findings: Other Considerations
I now summarise the respective weights I have allocated to each of the Other Considerations relevant to the present matter:
(a)legal consequences of the decision: neutral weight;
(b)extent of impediments if removed: moderate, but not determinative, weight in favour of revocation;
(c)impact on victims: neutral weight; and
(d)impact on Australian business interests: neutral weight.
CONCLUSION
Is there another reason to revoke the cancellation of the Applicant’s visa?
Under subsection 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. I have already indicated that the Applicant does not pass the character test.
In considering whether there is “another reason” to exercise the discretion afforded by subsection 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: carries a heavy weight against revocation;
·Primary Consideration 2: carries neutral weight;
·Primary Consideration 3: carries a moderate, but not determinative, weight in favour of revocation;
·Primary Consideration 4 carries a moderate, but not determinative, weight in favour of revocation;
·Primary Consideration 5: carries a heavy weight against revocation;
·I have outlined the weight attributable to the Other Considerations above. I am of the view (and I find) that the combined weights I have allocated to each of Primary Considerations 1 and 5 are sufficient to determinatively outweigh the combined weight I have allocated to Primary Considerations 3 and 4, and Other Consideration (b), respectively; and
·A holistic view of the considerations in the Direction for and against the Applicant therefore favours the non-revocation of the decision to cancel the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 28 July 2023 to not revoke the cancellation of the Applicant’s visa.
I certify that the preceding 160 (one hundred and sixty) paragraphs are a true copy of the reasons for the decision herein of Member Lee Benjamin
……………[SGD]….……………
Associate
Dated: 23 January 2024
Date of Decision: 23 October 2023
Applicant: Mr Justice Jaye Campbell-Smith (self-represented)
RespondentRepresentative: Ms Gabrielle Ho (Clayton Utz)
“Annexure 1”
EXHIBIT DESCRIPTION OF EVIDENCE PARTY DATE OF DOCUMENT DATE RECEIVED TR1. Section 37 G-Documents (G1-G5, pp 1-232) - - 10.08.2023 A1. Applicant Bundle of Materials (Tab 1 – Tab 4, pp 1-199) A - R1. Respondent Statement of Facts, Issues and Contentions (pp 1-23) R 28.09.2023
R2. Respondent Bundle of Materials (SM1-SM2; pp 1-159) R
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Immigration
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Administrative Law
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Statutory Interpretation
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Judicial Review
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Procedural Fairness
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