CFVG and Minister for Immigration and Border Protection (Migration)
[2017] AATA 1395
•29 August 2017
CFVG and Minister for Immigration and Border Protection (Migration) [2017] AATA 1395 (29 August 2017)
Division:GENERAL DIVISION
File Number: 2017/1083
Re:CFVG
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Deputy President Dr Christopher Kendall
Date:29 August 2017
Place:Perth
The decision under review is affirmed
.....................[sgd]..............................................
Deputy President Dr Christopher Kendall
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record and does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – protection of the Australian community from criminal or other serious conduct – best interests of minor children – expectations of the Australian community – other considerations – strength, nature and duration of ties – extent of impediments if removed – decision under review affirmed
LEGISLATION
Migration Act 1958 – s 499(2A), s 501(3A), s 501(6), s 501(7)(c), s 501CA(4)
Direction No 65: Migration Act 1958 – Direction under Section 499 – Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA – paras 6.2, 6.3, 7(1), 13(2), 8(1), 13.1(1), 13.1(2), 13.1.1(1), 13.1.2(1), 13.3(1), 14(1)(b) and (e), 14.2(1), 14.5(1)
SECONDARY SOURCES
“Freedom through Growth”, People at Risk Solutions, New Zealand, FOR DECISION
Deputy President Dr Christopher Kendall
29 August 2017
Pursuant to s 35(3) of the Administrative Appeals Tribunal Act 1975, the Administrative Appeals Tribunal (the “Tribunal”) can restrict the publication of the names of parties to proceedings and allocate a pseudonym to the parties if the Tribunal deems it appropriate to do so.
The Tribunal determined that, in this case, it was appropriate to restrict the identification of the Applicant. Accordingly, the Applicant in these proceedings will be referred to by the pseudonym “CFVG”.
This matter requires the Tribunal to determine whether it should exercise the discretion in s 501CA (4) of the Migration Act 1958 (Cth) (the “Migration Act”) to revoke an earlier decision to cancel CFVG’s visa.
At the time of the hearing before this Tribunal, CFVG was aged 34. He is citizen of New Zealand. He arrived in Australia in 1984 at the age of 2 years (T3 at 81). Other than for a short period in 1986 CFVG has remained in Australia since his arrival here. CFVG has lived in Australia under a Class TY Subclass 444 Special Category (Temporary) visa (the “visa”). That visa was cancelled on 2 September 2016, which is why he now appears before this Tribunal.
CFVG has an extensive criminal history. His record of offending began at the age of 12 years and includes numerous property, dishonesty, drug and traffic offences for which he has received a number of prison sentences (T3 at 22-28; T10 at 191-212). In sum, CFVG has 109 convictions as an adult and 81 convictions as a minor. His most recent, and most serious, offence was committed in 2015. CFVG was found guilty of attempted aggravated burglary with intent in dwelling (sentenced to 4 years imprisonment) and burglary and commit offence in dwelling (four years imprisonment concurrent). The sentencing judge described CFVG’s actions as a 'very serious' attempted burglary as there was a young girl in the house. The Judge stated that, according to a victim impact statement, the impact on this young girl has been significant.
On 25 March 2009, CFVG was given a formal warning from the Department of Immigration and Citizenship (the “Department”) that continued offending might well result in the cancellation of his visa (T7 at 186-187).
This does not appear to have acted as any sort of deterrence for, as noted above, on 16 June 2015, CFVG was sentenced to 4 years imprisonment for attempted aggravated burglary with intent in dwelling and burglary and commit offence in dwelling. He is currently serving that sentence in a West Australian prison.
On 2 September 2016, CFVG’s visa was cancelled by a delegate for the Minister for Immigration and Boarder Protection (the “Minister”) pursuant to s 501(3A) of the Migration Act (the “Cancellation Decision”) (T12 at 219-221). This was a mandatory cancellation of CFVG’s visa because it was found that CFVG did not pass the character test by reason of his “substantial criminal record”, as defined in s 501(7)(c) of the Migration Act (G20). Specifically, it was found that he had been sentenced to a term of imprisonment of 12 months or more and was also (at the time his visa was cancelled) serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or Territory.
On 5 October 2016, CFVG made representations to the Minister seeking revocation of the mandatory visa cancellation decision (T3 at 66-79).
On 6 February 2017, a delegate of the Minister decided, acting under s 501CA (4) of the Migration Act, not to revoke the Cancellation Decision. The delegate was not satisfied that CFVG passed the character test or that there was another reason why the Cancellation Decision should be revoked. Accordingly, the delegate decided not to revoke the decision to cancel CFVG’s visa (T2 at 3-5).
On 27 February 2017, CFVG applied to this Tribunal for review of the delegate’s decision (T2 at 3.).
ISSUES
The broad issue for consideration by this Tribunal is whether the discretion in s 501CA(4) of the Migration Act should be exercised in CFVG’s favour having regard to the mandatory considerations identified in Ministerial Direction No. 65 (discussed below).
To determine this broad issue, the Tribunal must decide:
(i)whether CFVG passes the “character test” as that term is used in s 501(6) of the Migration Act; and
(ii)if not, whether the discretion in s 501CA(4) of the Migration Act should be exercised in CFVG’s favour such that the mandatory decision to cancel his visa is revoked/set aside.
EVIDENCE
The matter was heard in Perth on 31 July 2017. CFVG appeared in person and was self-represented. The Minister was represented by Mr Gerrard of the Australian Government Solicitor.
The evidence before the tribunal consisted of the following:
·A Statement of Facts, Issues and Contentions from CFVG dated 7 July 2017 (A1);
·A letter from CFVG dated 6 June 2017 (A2);
·A 233 page set of T-documents (T1 to T15) (R1);
·A Statement of Facts, Issues and Contentions from the Minister dated 11 May 2017 (R2);
·Summons material from the WA Police in relation to CFVG’s criminal history (R3); and
·Various Extracts from webpages in relation to PARS Incorporated (R4).
The Tribunal also heard oral evidence from CFVG.
The Tribunal has reviewed all of the material before it and highlights relevant materials below.
CONSIDERATION
(i)Does CFVG pass the Character Test?
The Tribunal must first consider whether CFVG passes the “character test” as that term is defined in s 501 of the Migration Act.
Section 501 of the Migration Act deals with refusals or cancellations of visas on character grounds. Subsection 501(3A) provides that the Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a),(b) or (c); or
... and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory.
Section 501(6) of the Act provides that a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)). [Emphasis added].
Section 501(7) of the Act relevantly provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
...
(c)the person has been sentenced to a term of imprisonment of 12 months or more.
It is common ground that:
·as a consequence of receiving a sentence of imprisonment in excess of 12 months, CFVG has a “substantial criminal record” and, as a result, does not pass the character test in s 501(6) of the Migration Act; and
·as CFVG is serving a sentence of imprisonment, on a full-time basis in a custodial institution, he was liable for mandatory cancellation of his visa pursuant to s 501(3A) of the Migration Act.
On the evidence before it, the Tribunal finds that CFVG does not pass the character test as defined in the Migration Act.
(ii)Should the Tribunal Revoke the Decision to Cancel CFVG’s Visa?
Having determined that CFVG does not pass the character test and was liable for mandatory cancellation of his visa, the Tribunal must now consider whether the mandatory cancellation of CFVG’s visa should be revoked by the Tribunal standing in the Minister’s shoes.
Section 501CA(4) of the Act provides that the Minister (and Tribunal) may revoke the mandatory cancelation of an applicant’s visa 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. [Emphasis added].
The central question before the Tribunal is whether there is “another reason” to revoke the decision to cancel CFVG’s visa.
When considering CFVG’s request to revoke the decision to cancel his visa, the Tribunal must comply with Ministerial Direction No. 65 (“Direction No. 65”) (as per s 499 (2A) of the Migration Act).
Direction No. 65 was issued by the Minister on 22 December 2014 and is binding on the Tribunal from that date.
Paragraph 6.2 of Direction No. 65 provides “general guidance” to the Tribunal in relation to the character test and the exercise of the Tribunal’s discretion to revoke a decision to cancel a visa. It provides:
6.2 General Guidance
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501 CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction No. 65 then sets out a number of “Principles” to be applied by the Tribunal, including the following:
6.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
...(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1) of Direction No. 65 provides guidance to the Tribunal on how to determine whether mandatory cancellation of a non-citizen’s visa should be revoked. Paragraph 7(1) states:
How to exercise the discretion
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
...
(b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Paragraph 8(1) of Direction No. 65 further states:
8. Taking the relevant considerations in account
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. ...
(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of the visa.
(4) Primary considerations should generally be given more weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
Part C of Direction No. 65 sets out considerations that are relevant when determining whether to exercise the discretion in s 501CA (4) of the Act.
Primary Considerations
Pursuant to paragraph 13(2) of Direction No. 65, the following are “primary considerations” that the Tribunal must take into account in deciding whether to revoke the cancellation of an applicant’s visa:
i.Protection of the Australian community from criminal or other serious conduct;
ii.The best interests of minor children in Australia; and
iii.Expectations of the Australian community.
(i) Protection of the Australian Community
Paragraph 13.1(1) of Direction No. 65 provides that decision-makers considering the protection of the Australian community should have regard to the principle in paragraph 6.2(1) (set out above). Paragraph 13.1(2) then identifies two other factors to which consideration should also be given:
(a)The nature and seriousness of the person’s conduct to date; and
(b)The risk to the Australian community should the person commit further offences or engage in other serious conduct. [Emphasis added]
(a)Nature and seriousness of the conduct
Paragraph 13.1.1(1) of Direction No. 65 gives a non-exhaustive list of factors to which decision-makers must have regard in considering the nature and seriousness of a person's criminal conduct. Relevantly, these include:
13.1.1 The nature and seriousness of the conduct
(1)In considering the nature and seriousness of the person's criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)The principle that, without limiting the range of offence that may be considered serious, violent and/or sexual crimes are viewed seriously;
(b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(c)The sentence imposed by the courts for a crime or crimes;
(d)The frequency of the person’s offending and whether there is any trend of increasing seriousness;
…
[Emphasis added]
The evidence shows that CFVG has an extensive criminal record, as follows:
Court
Court Date
Charges
Result
Perth District Court of Western Australia
16-JUN-2015
Aggravated Burglary with intent in Dwelling; Criminal Code; S.401(1)(a)
IMPRISONMENT: 4 YRS
Perth District Court of Western Australia
16-JUN-2015
Burglary and Commit Offence in Dwelling; Criminal Code; S.401(2)(b)
TOTAL: 4 YRS IMP FROM 27.9.14
IMPRISONMENT: 4 YRS CONC
Perth District Court of Western Australia
16-JUN-2015
Criminal Damage or Destruction of Property; Criminal Code: S.444(1)(b)
No Penalty S.11
Perth District Court of Western Australia
16-JUN-2015
Criminal Damage or Destruction of Property; Criminal Code: S.444(1)(b)
No Penalty S.11
Fremantle Magistrates Court
11-NOV-2014
BREACH OF CBO (ORDER OF 25.7.14)
[counts 5]
FINE: $1000 (global)
Fremantle Magistrates Court
11-NOV-2014
Person who breaches CRO or community order without reasonable excuse; Sentencing Act 1995; S.131(1)
[counts 5]
FINE: $1000 (global)
Fremantle Magistrates Court
25-JUL-2014
BREACH OF CBO (ORDER OF 23.5.14)
CBO TO CONTINUE
Fremantle Magistrates Court
25-JUL-2014
BREACH OF CBO (ORDER OF 23.5.14)
CBO TO CONTINUE
Fremantle Magistrates Court
25-JUL-2014
BREACH OF CBO (ORDER OF 23.5.14)
CBO TO CONTINUE
Fremantle Magistrates Court
25-JUL-2014
BREACH OF CBO (ORDER OF 23.5.14)
CBO TO CONTINUE
Fremantle Magistrates Court
25-JUL-2014
BREACH OF CBO (ORDER OF 23.5.14)
CBO TO CONTINUE
Fremantle Magistrates Court
25-JUL-2014
Stealing; Criminal Code (WA); 378
FINE: $250.
Fremantle Magistrates Court
23-MAY-2014
Gains Benefit by Fraud; Criminal Code (WA); 409 (1)(c) B
COMM BASED
ORDER: 9 Months CONCURRENT FROM 23-MAY-
2014. -Concurrent
Fremantle Magistrates Court
23-MAY-2014
Gains Benefit by Fraud; Criminal Code (WA); 409 (1)(c) B
COMM BASED ORDER: 9 Months CONCURRENT FROM 23-MAY-2014. –Concurrent
Fremantle Magistrates Court
23-MAY-2014
Gains Benefit by Fraud; Criminal Code (WA); 409 (1)(c) B
COMM BASED
ORDER: 9 Months CONCURRENT FROM 23-MAY-
2014. -Concurrent
Fremantle Magistrates Court
23-MAY-2014
Gains Benefit by Fraud; Criminal Code (WA); 409 (1)(c) B
COMM BASED
ORDER: 9 Months CONCURRENT FROM 23-MAY-
2014. -Concurrent
Fremantle Magistrates Court
23-MAY-2014
Stealing; Criminal Code (WA); 378
COMM BASED
ORDER: 9 Months CONCURRENT FROM 23-MAY-
2014. -Concurrent
Fremantle Magistrates Court
20-FEB-2013
Assault Public Officer.; Criminal Code (WA); 318 (1)(d)
FINE: $2000.
Fremantle Magistrates Court
20-FEB-2013
Disorderly behaviour in public; Criminal Code (WA); 74A (2)(a)
FINE: $1000.
Fremantle Magistrates Court
20-FEB-2013
Street Drinking.; Liquor Control Act 1988; 119 (4)(a)
FINE: $100.
Fremantle Magistrates Court
03-AUG-2012
Possessed an article with intent to injure (disable).; Weapons Act 1999; 8 (1)(a) A
FINE: $250.
Fremantle Magistrates Court
03-AUG-2012
Wilfully & unlawfully destroy or damage property; Criminal Code (WA); 444(1)(b)
FINE: $500.
Perth Magistrates Court
15-FEB-2012
Gains Benefit by Fraud.; Criminal Code (WA); 409 (1)(c) B
FINE: $500. (global)
Perth Magistrates Court
15-FEB-2012
Possessing stolen or unlawfully obtained property; Criminal Code (WA); 428 (1)
FINE: $500. (global)
Perth District Court of Western Australia
17-OCT-2008
BREACH OF ISO (Order of 12.06.07)
[counts 5]
IMPRISONMENT: 1-
2. 8 MTHS CUM 2-
4. 8 MTHS CONC
Perth District Court of Western Australia
17-OCT-008
Burglary with intent in Place; Criminal Code; S. 401(1)(c).
(S.32 SENT ACT) IMPRISONMENT: 8 MTS CUM
Perth District Court of Western Australia
17-OCT-2008
Give False Personal Details To Police; Criminal Investigation (Identifying People) Act 2002; S. 16(8)
(S.32 SENT ACT) FINE:$300
Perth District Court of Western Australia
17-OCT-2008
Obtain Property form a Person by Fraud; Criminal Code, S. 409(1)(a)
(S.32 SENT ACT) FINE:$300
Perth District Court of Western Australia
17-OCT-2008
Obtain Property from a Person by Fraud; Criminal Code; S. 409(1)(a)
(S.32 SENT ACT) FINE:$200
Perth District Court of Western Australia
17-OCT-2008
Receiving; Criminal Code; S. 414
(S.32 SENT ACT) FINE:$300
Perth District Court of Western Australia
17-OCT-2008
Stealing; Criminal Code; S. 378
(S.32 SENT ACT) FINE:$300
Perth District Court of Western Australia
17-OCT-2008
With Intent to Defraud Utters a Forged Record; Criminal Code; S. 473(1)(b)
(S.32 SENT ACT) IMPRISONMENT: 4 MTHS CONC
Perth District Court of Western Australia
17-OCT-2008
With Intent to Defraud Utters a Forged Record; Criminal Code; S. 473(1)(b)
(S.32 SENT ACT) IMPRISONMENT; 4
MTHS CONC
Perth District Court of Western Australia
17-OCT-2008
No Driver’s Licence (Suspended); Road Traffic Act 1974; S. 49(1) &
2(a)(iii); 2nd of Subsequent Offence; No M.D.L.
IMPRISONMENT; 4mths
Mdl Disqualified: 9 mths – Cumulative
Perth District Court of Western Australia
17-OCT-2008
Excess 0.05%; >=0.06%
but < 0.07%; Road Traffic Act 1974; S. 64AA(1); no M.D.L.; Reading 0.062; Method is Breath
FINE: $300; s.58 no
time to pay 1 day default for with conc Mdl Disqualified: 3 mths – Concurrent
Perth District Court of Western Australia
17-OCT-2008
No Driver’s Licence (Disqualified from Holding or Obtaining); Road Traffic Act 1974; S 49(1) &
2(a)(iii); 2nd or Subsequent Offence; No M.D.L.
IMPRISONMENT: 2 mths
Mdl Disqualified S51: 3 mths; awaiting on clarification of charge applied s51 in meantime
Perth District Court of Western Australia
17-OCT-2008
No Driver’s Licence (Suspended); Road Traffic Act 1974; S. 49(1) & (2)(a)(iii); No M.D.L.
IMPRISONMENT: 4 mths
Mdl Disqualified: 9 mths; cum to be conc
Perth District Court of Western Australia
17-OCT-2008
No Driver’s Licence (Suspended); Road Traffic Act 1974; S. 49(1) & (2)(a)(iii); No M.D.L.
IMPRISONMENT: 4 mths
Mdl Disqualified S51: 3 mths; applied s51 awaiting on clarification of charge
Perth District Court of Western Australia
17-OCT-2008
No Driver’s Licence (Suspended); Road Traffic Act 1974; S. 49(1) &
(2)(a)(iii); 2nd or Subsequent Offence; No M.D.L.
Imprisonment: 4 mths
Mld Disqualified S51: 3 mths; applied s51 awaiting on clarification of charge
Perth District Court of Western Australia
17-OCT-2008
Dangerous Driving; Road Traffic Act 1974; S. 61(1); No M.D.L.
FINE: $600;
pursuant to s59 no time to pay in default 2 days forthwith
MLD Disqualified: 12 mths – Concurrent
Perth District Court of Western Australia
17-OCT-2008
No Driver’s Licence (Disqualified from Holding or Obtaining); Road Traffic Act 1974; S. 49(1) &
(2)(a)(iii); 2nd or Subsequent Offence; No M.D.L.
Imprisonment: 4 mths
Mld Disqualified S51: 3 mths; applied s51 awaiting on clarification of charge
Perth District Court of Western Australia
17-OCT-2008
Driver Failing to Give Name and Address After Traffic Accident (Damage Caused); Road Traffic Act 1974; S. 54(1); No M.D.L.
0. FINE: $300; pursuant to s59 no time to pay default 1 day forthwith
Mdl Disqualified S51: 3 mths; mand conc
Perth District Court of Western Australia
17-OCT-2008
Fail to Report Traffic Accident (Property Owner Present); Road Traffic Act 1974; S. 55(1); No M.L.D.
1. FINE: $300; pursuant to s59 no time to pay default 1 day imp
Mdl Disqualified S51: 3 mths; mths mand
Perth District Court of Western Australia
17-OCT-2008
Drive Veh Contrary To Compliance Notice (Drove); Road Traffic (Vehicle Standards) Regulations 2002; S. 66(1); No M.D.L.
2. FINE: $200; pursuant to s59 no time to pay default 1 day forthwith
Perth District Court of Western Australia
17-OCT-2008
Drive Unroadworthy Vehicle (Safely); Road Traffic (Vehicle Standards) Regulations 2002; S. 6(2)(a); No M.D.L.
FINE: $300; pursuant s59 no time to pay default 1 day imp
Perth District Court of Western Australia
17-OCT-2008
Unlicensed Vehicle (Not Owner); Road Traffic Act 1974; S. 15(3); No M.D.L.
FINE: $300
Joondalup Magistrates Court
28-MAY-2008
Possess a Prohibited Drug (Cannabis); Misuse Of Drugs Act 1981; S. 6(2)
FINE: $300
Perth Magistrates Court
13-NOV-2007
Possess a Prohibited Drug (Amphetamine); Misuse Of Drugs Act 1981; S. 6(2)
FINE: $300
Perth Magistrates Court
15-JUN-2007
Carried an article with intent to injure (disable); Weapons Act 1999; S. 8(1)(a)
FINE: $200
Perth Magistrates Court
15-JUN-2007
No Motor Drivers Licence
– Under Suspension; Road Traffic Act 1974; S. 49(1)(a) & (2)(a)
FINE: $1000 DISQ HOLD/OBT
MDL 9 MTHS CUM
Perth Magistrates Court
15-JUN-2007
Refuse To Supply Or Provide False Name And Address; Road Traffic Act 1974; S. 53
FINE: $200
DISQ HOLD/OBT MDL 3 MTHS CONC MAND – SECT 51
Perth Magistrates Court
15-JUN-2007
Unlicensed Vehicle; Road Traffic Act 1974; S. 15(3)
FINE: $100
Perth Magistrates Court
15-JUN-2007
No Motor Drivers Licence
– Under Suspension; Road Traffic Act 1974; S. 49(1)(a) & (2)(a)
FINE: $1000 DISQ HOLD/OBT
MDL 9 MTHS CUM
Perth District Court of Western Australia
12-JUN-2007
Burglary and Commit Offence in Place; Criminal Code; S. 401(2)(c)
INTENSIVE SUPVSN ORDER: 12 MTHS
Perth District Court of Western Australia
12-JUN-2007
Burglary and Commit Offence in Place; Criminal Code; S. 401(2)(c)
INTENSIVE SUPVSN ORDER: 12 MTHS
Perth District Court of Western Australia
12-JUN-2007
Burglary and Commit Offence in Place; Criminal Code; S. 401(2)(c)
INTENSIVE SUPVSN ORDER: 12 MTHS
Perth District Court of Western Australia
12-JUN-2007
Burglary and Commit Offence in Place; Criminal Code; S. 401(2)(c)
INTENSIVE SUPVSN ORDER: 12 MTHS
Perth Magistrates Court
16-MAY-2007
No Motor Drivers Licence
– Under Suspension; Road Traffic Act 1974; S. 49(1)(a) & (2)(a)
FINE: $1000 DISQ HOLD/OBT
MDL 12 MTHS CUM
Perth Magistrates Court
16-MAY-2007
Fail Give Way To Vehicle When Turning Right; Road Traffic Code 200; S. 45(1)
FINE: $150
Fremantle Magistrates Court
20-FEB-2007
No Motor Drivers Licence
– Under Suspension; Road Traffic Act 1974; S. 49(1)(a) & (2)(a)
FINE: $1000 DISQ HOLD/OBT
MDL 12 MTHS CUM
Perth Magistrates Court
20-MAR-2006
No Motor Drivers Licence
– Under Suspension; Road Traffic Act 1974; S. 49(1)(a) & (2)(a)
FINE: $1000 DISQ HOLD/OBT
MDL 12 MTHS CUM
Perth Magistrates Court
03-MAR-2006
Stealing; Criminal Code; S. 378
FINE: $500
Perth Magistrates Court
25-AUG-2005
No Motor Drivers Licence
– Under Fines Suspension; Road Traffic Act 1974; S. 49(1)(a) &
(2)(a)(iv)
FINE: $1200 DISQ HOLD/OBT
MDL 9 MTHS CUM
Perth Magistrates Court
25-AUG-2005
Refuse To Supply Or Provide False Name And Address; Road Traffic Act 1974; S. 53
FINE: $150
DISQ HOLD/OBT MDL 3 MTHS MAND CONC – SECT 51
Armadale Court of Petty Sessions
28-MAY-2004
BURGLARY W/INT (PLACE)
8 MTHS IMP CUM
Perth Court of Petty Sessions
29-DEC-2003
GIVE FALSE PERSONAL DETAILS TO POLICE
$200 (GLOBAL)
Perth Court of Petty Sessions
29-DEC-2003
POSSESS PROHIBITED DRUG
$200 (GLOBAL)
Perth Court of Petty Sessions
29-DEC-2003
UNLAWFUL POSSESSION
$200 (GLOBAL)
Perth Children’s Court
14-MAR-2003
BURGLARY & COMMIT OFFENCE (HABITATION)
2 MTHS IMP CONC
Perth Court of Petty Sessions
10-JAN-2003
ASSAULT TO PREVENT ARREST
4 MTHS IMP CONC
Perth Court of Petty Sessions
11-DEC-2002
No Motor Drivers Licence
–Under Suspension; Road Traffic Act 1974; S. 49(1)(a) & (2)(a)
FINE: $400
DDISQ HOLD/OBT MDL 9 MTHS CUM
Perth Court of Petty Sessions
11-DEC-2002
Careless Driving; Road Traffic Act 1974; S. 62
FINE: $300
DISQ HOLD/OBT MDL 3 MTHS MAND CONC
Perth Court of Petty Sessions
11-DEC-2002
Possess Driver’s Licence Calculated to Deceive; Road Traffic Act 1974; S. 97(g)
FINE: $100
DISQ HOLD/OBT MDL 3 MTHS MAND CONC
Perth District Court of Western Australia
03-DEC-2002
BREACH OF ISO (ORDER OF 9.7.02)
6 MTHS IMP
Perth District Court of Western Australia
03-DEC-2002
BURGLARY & COMMIT OFFENCE (HABITATION)
12 MTHS IMP CUM
Perth District Court of Western Australia
03-DEC-2002
BURGLARY & COMMIT OFFENCE (PLACE)
6 MTHS IMP CONC
Perth District Court of Western Australia
03-DEC-2002
STEALING (M/VEHICLE)
12 MTHS IMP CONC TOTAL: 18 MTHS IMP
Perth District Court of Western Australia
03-DEC-2002
No Motor Drivers Licence
– Under Fines Suspension; Road Traffic Act 1974; S. 49(1)(a) &
(2)(a)(iv)
3 MTHS IMP
(TOTAL 24 MTHS IMP), DISQ HOLD/OBT MDL 3 MTHS MAND CONC PRISON RELESE DATE: RELEASED 02/08/03
Perth District Court of Western Australia
03-DEC-2002
Reckless Driving; Road Traffic Act 1974; S. 60
PRESCRIBED – 6 MTHS IMP, DISQ HOL/OBT MDL 12 MTHS CONC
Perth District Court of Western Australia
09-JULY-2002
BURGLARY & COMMIT OFFENCE AGG (PLACE)
2 YRS ISO (ADULT) SUPVSN
Perth Court of Petty Sessions
30-NOV-2001
BURGLARY & COMMIT OFFENCE (HABITATION)
6 MTHS IMP CONC
Perth Court of Petty Sessions
30-NOV-2001
FRAUD
3 MTHS IMP CONC
Perth Court of Petty Sessions
30-NOV-2001
STEALING
3 MTHS IMP CONC
Perth Court of Petty Sessions
30-NOV-2001
STEALING
6 MTHS IMP CUM MDL DISQ 6 MTHS
Perth Court of Petty Sessions
30-NOV-2001
Criminal Code
IMP 6 MTHS DISQ HOLD/OBT MDL 6 MTHS BURG.
401(2)(B) CRIM CODE PRISON RELEASE DATE: RELEASED 24/07/2002
Perth District Court of Western Australia
23-NOV-2001
ATTEMPT TO DEFEAT/PERVERT COURSE JUSTICE
3 MTHS IMP CUM
Perth District Court of Western Australia
23-NOV-2001
BREACH OF SUSPENDED SENT (ORDER OF 6.4.01)
[counts 4]
6 MTHS IMP CONC (NO MDL)
Perth District Court of Western Australia
23-NOV-2001
BURGLARY & COMMIT OFFENCE AGG (PLACE)
18 MTHS IMP TOTAL: 21 MTHS IMP
Perth Court of Petty Sessions
01-MAY-2001
FALSE NAME AND/OR ADDRESS
$150
Perth Court of Petty Sessions
01-MAY-2001
No Motor Drivers Licence
– Under Fines Suspension; Road Traffic Act 1974; S. 49(1)(a) &
(2)(a)(iv)
FINE: $250 DISQ HOLDING/OBT MDL
3 MTHS MAND
Perth Court of Petty Sessions
06-APR-2001
BREACH OF BAIL
$200 EA CHG
Perth Court of Petty Sessions
06-APR-2001
No Motor Drivers Licence
– Under Fines Suspension; Road Traffic Act 1974; S. 49(1)(a) &
(2)(a)(iv)
1 MTH IMP SUSP
12 MTHS. DISQ HOLD OBT MDL 12 MTHS CUM TO SERVE CONC
Perth Court of Petty Sessions
06-APR-2001
No Motor Drivers Licence
– Under Fines Suspension; Road Traffic Act 1974; S. 49(1)(a) &
(2)(a)(iv)
1 MTHS IMP SUSP SENT 12 MTHS, DISQ HOLD/OBT MDL 12 MTHS CUM
Perth Court of Petty Sessions
06-APR-2001
No Motor Drivers Licence
– Under Fines Suspension; Road Traffic Act 1974; S. 49(1)(a) &
(2)(a)(iv)
6MTHS IMP SUSP SENT 12 MTHS, DISQ HOLD/OBT MDL 12 MTHS CUM SERVE CONC
Perth Court of Petty Sessions
06-APR-2001
No Motor Drivers Licence
– Under Fines Suspension; Road Traffic Act 1974; S. 49(1)(a) &
(2)(a)(iv)
6 MTHS IMP SENT
18 MTHS, DISQ
HOLD/OBT MDL 12 MTHS CUM SERVE CONC
Perth Court of Petty Sessions
6-APR-2001
Refuse to Supply Or Provide False Name And Address; Road Traffic Act 1974; S. 53
FINE: $200
DISQ HOLD/OBT MDL 3 MTHS MAND CONC
CFVG’s criminal history for offences committed as a juvenile is also extensive. There are 81 documented convictions spanning 6 years. These include convictions for, amongst other things, burglary, assault, stealing, robbery in company and reckless driving.
In relation to the seriousness of CFVG’s criminal record, counsel for the Minister contended as follows in a Statement of Facts, Issues and Contentions dated 11 May 2017:
26.The respondent contends that the offences of which the applicant was convicted are clearly serious offences of the type identified in Direction No 65. The applicant’s conviction for aggravated burglary is particularly serious but the respondent notes with concern that the applicant has convictions for serious offences involving drugs, burglary, gains benefit by fraud, assault public officer, assault to prevent arrest, and attempt to defeat/pervert course of justice.
27.The seriousness of the offending can also be seen in the sentencing remarks of the court and the sentences imposed by the court. Imprisonment is a sentence of last resort, generally reserved for conduct which is considered to be serious. The applicant has been sentenced to numerous prison sentences including most recently to concurrent sentences of 4 years imprisonment on 16 June 2015.
…
32.Taking into account the nature of the offences, the sentences imposed, the comments of the sentencing Judge, and the specific guidance and principles set out in Direction No 65, the respondent contends that the nature and seriousness of the applicant’s conduct is a significant consideration that weighs heavily against revocation of the decision to cancel the applicant’s visa.
In determining whether CFVG’s conduct should be viewed as serious, the Tribunal notes the prison sentences imposed by the courts in relation to his offences – in particular, the sentencing remarks of Scott DCJ in sentencing CFVG on 16 June 2015 to a lengthy term of imprisonment for his burglary related offences (T3 at 33-34):
SCOTT DCJ: … You've been convicted of four charges, the first being aggravated burglary – attempted aggravated burglary, I beg your pardon – which carries a maximum term of imprisonment of 10 years because it was an attempt.
Secondly, a charge of wilfully and unlawfully destroying a fence. That is part of the initial attempted burglary; consequently there will be no additional sentence although you've been convicted of that offence.
Thirdly, an aggravated burglary. The maximum term of imprisonment is one of 20 years. And you must know by now what the maximums are because you've been convicted on so many occasions of similar offending.
…
Make no mistake about it, [CFVG], you are a danger to the community whilst you are acting in this way. In respect to the attempted burglary, who knows what may have happened if you had got into the house.
Now, you would say, I assume, that you would never have harmed the little girl because you've got children of your own. But in the state you were in, you saw her and I'm satisfied you did. She saw you follow her from outside the house as she tried to run away inside the house and who knows what you might do if you're under the influence, as you were on this occasion.
ACCUSED: I understand that.
SCOTT DCJ: And you can imagine how she must have felt. And it's relevant to mention to you the fact that I read carefully the victim impact statement from her mother and the impact on her has been significant.
ACCUSED: Yeah, I've read it a couple of times myself.
SCOTT DCJ: All right. And I understand that having been on remand for some time, you've dried out and it may well be that you understand better now and better at the time at which you read it, just what the effect of your conduct has been.
But you know, [CFVG], it's now time to pull yourself up short, seriously it is, because a couple of things are going to happen if you don't. Firstly, you're going to hurt somebody, that's what's going to happen. Or you're going to be hurt yourself, but more importantly, because you're the person who's doing it, someone is going to be hurt if you continue the way you're going.
And secondly, the chances are you're going to spend an enormous amount of time in prison and so now's the time for you to put your head down and your backside up and decide whether you want to get off drugs and alcohol and use the time that you're in prison to do just that.
…
SCOTT DCJ: Your prior offending is substantial. In the last 20 years, you've been convicted of numerous offences, both in the Children's Court and in the adult courts which has been almost relentless.
As an adult, your offences include numerous stealing and fraudulent offences, offences of violence, destruction of property and include 12 burglaries on my calculations. In the Children's Court, you committed on my calculations about 19 burglaries and numerous other offences of dishonesty and violence.
Now, I can't take into account in respect to a calculation of your Children's Court record a reference, I should say, as to previous offending, and it because you've already committed adult court and this is – you're with respect to home invasions doesn't really matter so many burglaries in the at least a third striker
But I can take into account your Children's Court record in just indicating what danger you present to the community and the chances that you might re-offend. And as I say, the protection of the community looms large in sentencing you. There's just no way out of that, because you need the community needs to be protected from what you do, unless you get yourself absolutely right.
ACCUSED: I'm slowly learning from my mistakes – trying to learn.
SCOTT DCJ: Well, I hope so, because it's been a slow process, [CFVG], and you're at that age now – you're not a young man anymore.
ACCUSED: That – that I realise.
SCOTT DCJ: All right. Now, you pleaded guilty at your earliest opportunity and I'll allow you a discount.
Insofar as remorse is concerned, whilst in your instructions to [Ms A] you impressed as being generally sympathetic towards the child, stating you have two children of your own, that was not the impression gained by the author the pre-sentence report, and that was referred to by [Mr C].
Having said that, I accept that since you've been on remand in prison, you've been able to take better stock of yourself and I accept that you understand and have insight into the frightening experience that the girl had. And I accept that you are sorry for the distress that you caused to her.
The only sentence that can possibly be imposed for each of these two offences- that's the attempted and the aggravated burglary, is a term of immediate imprisonment.
It needs to be noted that these offences were committed when you were subject to a community based order and as [Mr C’s] no doubt told you, you've already been dealt with for that order.
It could have been the subject of re-sentencing by me, but it's already been dealt with in the Magistrates Court. You have pleaded guilty on the fast-track system. At the same time, the State's case was a very strong one against you and that is taken into account.
…
I've taken into account all of the relevant matters to which I've referred, including your plea of guilty, your previous circumstances which are not favourable to you and the circumstances of the offending and I've already indicated the plea of guilty and the effect that has had on your sentencing.
So the sentences I impose are these. As [Mr F] said – and he's right, the attempted burglary was a very serious offence -
ACCUSED: Yeah.
SCOTT DCJ: - having regard to your history. That was then followed immediately after, notwithstanding the circumstance of the first attempted burglary with another burglary and there is a need to deal with personal and general deterrence in the way in which I've articulated.
For count 1, there will be a term of imprisonment of four years.
In count 2, there'll be no further sentence.
Count 3, there'll be a term of imprisonment of four years.
For count 4, there will be no further sentence.
The Tribunal also notes the accurate summary of the comments of previous sentencing judges in relation to some of CFVG’s earlier convictions at paragraphs 28 to 31 in the Respondent’s Statement of Facts, Issues and Contentions as follows.
CFVG was sentenced to 28 months’ imprisonment for a range of offences on 17 October 2008 including eight months’ imprisonment for four burglaries. In sentencing CFVG, Mazza DCJ stated (T3 at 43):
With respect to the four burglaries you committed in 2005, as I said, I must re-sentence you. They’re all quite serious although they’re not the worst of that kind of offending. They were calculated and brazen. You targeted easy to remove property which could be readily sold. Such conduct needs to be deterred, businesses just have to be protected from people who walk in and take their laptop computers
…
But that’s not the worst of it, the worst of it is that you offended and you offended in a persistent and it has to be said, wilful way over a period of time.
Further, in sentencing CFVG to six months’ imprisonment for a range of offences including burglary, stealing and fraud on 30 November 2001, Bromfield SM stated (T3 at 57):
The series of offences – even viewed separately – - when I say separately, that is separately one entry from the other – but together with the acts of stealing, are serious offences. But when viewed in their totality, not only those charges the six of them, but also your subsequent conduct involving the attempts to steal and your attempts to gain a monetary benefit – it’s clear that on the 23rd of June, you embarked upon a persistent chain of conduct involving dishonesty and breaking into buildings.
Stealing items of property. And generally behaving in a lawless manner.
CFVG was also sentenced to a total of 21 months’ imprisonment on 23 November 2001 for a range of offences including burglary, attempt to defeat/pervert course of justice and breach of suspended sentence. In sentencing CFVG, Hammond CJDC stated (T3 at 60):
It is again one of those basically very sad situations where the offender finds himself in the dock as a result of involvement with heroin, amphetamines and other drugs of that nature. There are matters which have to be considered in the offender’s favour but on the other hand, what we have, particularly in the indictable matters, are a series of very significant offences.
If I turn to the breaking and entering on 26 February at Balcatta, there is total loss there to the complainant of the order of $70,000. Now, that is a very large hurdle to overcome
… There is a very considerable spree of offending that we are dealing with here today during the course of this year.
…
The seriousness of that February break and the significance of the May break are such that, taken together, looked at overall with all of the other offending that this young man has engaged in over the past 12 months, there is no way that I can avoid the imposition of a term of imprisonment. It is so serious that it completely overcomes his personal factors.
...
I say that it is not possible to consider suspending a term of imprisonment. The seriousness has gone beyond that. It has gone to the imposition of a term.
CFVG does not deny that these offences were serious. He also demonstrated considerable remorse before the Tribunal. In his representations to the Minister for the mandatory cancellation of his visa to be revoked, CFVG did, however, offer the following explanation for his conduct (T3 at 79):
I know what I did was wrong and it’s not something I would not have done it all came down to the drugs I took. I am extremely sorry to my victims. I know it would have been a frightening episode for them. I have no one to blame but myself but I would like for you to know it would never of happened if I did not take the drugs. I just want to get out and start working again and be a productive member of society. I have done it once and will do it again. I just need the chance to. I do disagree with the statement of materiel facts saying I seen the little girl. I never seen her at all. If I did I would of run off. I was trying to knock myself out on the window due to the voices in my head telling me to do so. This has come as quiet a shock to me because I just don’t know what to do. My mother and children live here and I have since age 2. [sic]
In oral evidence before the Tribunal, CFVG again expressed remorse for his past conduct and sought to offer further explanations for his conduct as follows:
·He has had a serious drug addiction problem since the age of 12. This involved the frequent use of heroin and speed, with heroin being his “drug of choice”;
·He was “off his head” when the 2015 crimes were committed and does not recall some of the events in question;
·He is “older now and sees things clearer”; and
·He has tackled his drug addiction issues (discussed further below) and can now exercise restraint.
In determining whether CFVG’s conduct should be viewed as serious, the Tribunal places considerable weight on the sentencing comments outlined above. These reflect considerable concern on the part of the judiciary about CFVG’s conduct and evidence serious criminal conduct on his part. Indeed, the word “serious” is used throughout these sentencing remarks.
The Tribunal accepts that CFVG has shown remorse for his actions. He also has an extensive drug addiction issue that is undoubtedly the source of much of his offending. These are mitigating factors and dispositions involving incarceration are a last resort in the sentencing hierarchy. However, even allowing for an early guilty plea in relation to his 2015 burglary charges, and his clear drug addiction problem, CFVG was sentenced to a significant term of imprisonment. This says a great deal about the seriousness of his offending in the eyes of the law as no other penalty but one of immediate, lengthy imprisonment was deemed appropriate.
Having viewed the extensive evidence before it, CFVG’s conduct in the commission of burglary offences in 2015 must be viewed objectively as extremely serious. It is worth noting in this regard that a vulnerable child was terrified and traumatised by this ordeal. As per Direction No. 65, the frequency of CFVG’s offending over a very lengthy period and a clear trend of increasing seriousness are factors that weigh heavily against the revocation of the decision to cancel his visa. Overall, the nature and seriousness of CFVG’s most recent offences evidences a degree of recklessness toward the well-being of the Australian community that cannot be tolerated or dismissed. Add to this his previous offences (which include serious offences involving drugs, burglary, gains benefit by fraud, assault public officer, assault to prevent arrest, and attempt to defeat/pervert course of justice) and the Tribunal has no alternative but to find that CFVG’s quite serious criminal record weighs heavily against the revocation of the decision to cancel his visa.
(b)The risk to the Australian community should further offences be committed.
Paragraph 13.1.2(1) of Direction No. 65 sets out the principles and factors to which the Tribunal should have regard in assessing whether a non-citizen represents an unacceptable risk of harm to members of the Australian community. It provides:
13.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle 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 that it may be repeated may be unacceptable.
(2)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
In relation to the risk to the Australian community should CFVG commit further offences or engage in other serious conduct, the Tribunal notes that in a Statement of Facts, Issues and Contentions dated 11 May 2017, counsel for the Minister, outlined in detail the concerns of the courts in relation to CFVG’s past behaviour and the likelihood of future offending as follows:
36.It is clear, having regard to the sentencing remarks and the nature of the offences themselves, that the applicant’s offending relates to his drug addiction. There is no objective evidence of any attempts at rehabilitation. Indeed, there are pessimistic comments from sentencing judges and realistically there can be no optimism that the applicant will not re-offend.
37.In this regard, the respondent notes that in sentencing the applicant on 16 June 2015, Scott DCJ noted:
[I]f you don’t make a real genuine endeavour to get off drugs and alcohol, the programs that are made available to you and the treatment that’s made available to you are likely not to be of much assistance and that makes sense, as you must be aware.
[The psychologist] said that you’ve got antisocial personality traits where you show a blatant disregard for rules and you show limited remorse for your actions, and that’s consistent with your entrenched history, drug and alcohol dependency being prominent. [T3, pp32-33]
…
[Y]ou have an entrenched history of doing similar things like this. And the community needs to be protected. If you choose not to deal with your drug and alcohol issues which results in you being less – or being more likely to commit offences such as these and other offences of violence and/or dishonesty, then you need to be reminded that you just simply cannot continue to do that because you’re a danger to the community.
Make no mistake about it, [CFVG], you are a danger to the community whilst you are acting in this way. [T3, p34]
38. Mazza DCJ noted, on 17 October 2008, that:
[Y]our life up to now has been spoilt by illicit drug use and in particular heroin use. It has led you one way or another to offend extensively. I have seen your prior convictions which include convictions for burglary and attempting to pervert the course of justice, stealing and attempted fraud.
You have a lengthy and persistent history of traffic offending and it seems to me that you don’t have a lot of regard for the road rules.
…
You have been placed on various orders by courts in the past to try and assist you to rehabilitate yourself but unfortunately you have not been able to overcome your personal demons. These orders have not led to your rehabilitation. [T3, pp42-43]
39.In sentencing the applicant for a number of offences on 3 December 2002, French DCJ stated:
There is no doubt that when we look at the reports and look at his quite extensive record there is obviously a problem as far as [CFVG] is concerned in relation to how he can adapt to the wider community when he is released from prison.
…
I accept [Mr L’s] submissions that it would seem simply just from an historical point of view that clearly terms of imprisonment do little to dissuade [CFVG] from continuing offending when he is released. At the same time it is hard to see what the alternatives are … The trouble is if he can’t keep out of trouble for 3 days, there’s very little that can be done. [T3, pp52-53]
40.In relation to the applicant’s lengthy offending record as a juvenile, Bromfield SM noted on 23 November 2001:
I see that there have been community youth orders for some very serious offending at the time. It is within my knowledge that a great deal of assistance is provided to juveniles within the system in Western Australia. [T3, p60]
In concluding, counsel for the Minister contended:
34.The nature of the harm to the community should the applicant again commit similar offences means that the community should not be expected to tolerate a high risk of similar offences being repeated.
35.The applicant has accrued a lengthy criminal history comprising of 109 offences over a 14 year period as an adult. The applicant was convicted of an additional 81 offences as a minor. The length and breadth of the applicant’s record alone indicates that there is a significant risk of re-offending.
…
41.The applicant has breached numerous court orders and has received a formal warning on 25 March 2009 from the Department that future offending would expose him to the risk of visa cancellation and removal [T7, pp186-187]. Since receiving that warning the applicant has received a further 30 convictions. The respondent contends that this is a clear indication that the applicant’s risk of recidivism is very high.
42.The respondent contends that the fact that the applicant has continued to spurn all chances and opportunities offered to him, together with the pessimistic assessments of his prospects of rehabilitation make it difficult for the Tribunal to reach any conclusion other than that the applicant is highly likely to re-offend.
43.The length, frequency, nature, seriousness and pattern of the applicant’s offences all give rise to a clear probability that the risk of the applicant re-offending is very high.
44.Given the nature of the offences and the nature of the harm to individuals should the applicant engage in further criminal conduct of this nature, the respondent contends that the Australian community should not be expected to tolerate such a high risk of recidivism: see paragraphs 6.3(3) and 13.1.2(1) of Direction No. 65.
The Tribunal also notes that in his Statement of Facts, Issues and Contentions received 7 July 2017 (A1), CFVG explains:
I’m now 35 years old and have wasted a lot of time in prison. I have had a drug problem my poison being herion im now on the methadone programme to help with that addiction.
I do not dispute the crimes which led me to prison this time I used amphitemens which is a drug that does not go well with me that is the reason I did these crimes.
I don’t disagree that I have a lengthy crimanl record most of the crimes happened because I was on drugs or to get drugs
I’m now learning ways to stop me relapsing.
I have not had a driving offence in nealy 10 years which is a positive.
I find it offensive the delegate said my 2 children are better off in foster care that is not the case Im trying my best to be a father whilst in prison and upon my release I can be the dad I want to be
My father passed away when I was very young so I never had a dad so I don’t want my children to go through the same thing
When I first lost my children I was a drug addict but that was eight years ago now Im no longer that same person it breaks my heart not being there for them
In the past I have been a danger to the community whilst being on drugs I didn’t care but now I have a firm crasp of my drug addiction and I no longer crave the use to do drugs
I have put a plan together which involes me doing continued drug councelling, relapse prevention and upon m release staying on the methadone programme I have paid off my fines so I can get my drivers license which opens up a lot of work opportunities for me and getting stable accomidation through outcare also outcare offer workers that can help you out when things get a little tough
It is also a big deterent having my visa cancelled I know that if I stuff up I will be taken to New Zealand that’s if im given a second chance
I am truly sorry for the crimes I have commited over the years I have no one to blame but myself if I could turn back time there is a lot I would change but that’s just not possible
If Im taken to New Zeland I will never see my 2 beautiful children again and I will miss out on my mothers last years
All Im asking for is a second chance to show and prove that I can succed in life
Thank you for taking the time and consideration in reading this letter [sic]
Further, in a written statement (undated) (T3 at 92), CFVG relevantly writes:
… I came to Australia on March 1984 with my mother and father. My mum is New Zealander and my dad is Australian born in Sydney N.S.W. I've been under the belief that after living in Australia for over 20 years, which I've been here for 25 years. That I have the same rights and legal rights as an Australian citizen. I now know I was wrong, which in part is the main reason why I never applied for my Australian citizenship. I've made my fair share of mistakes in life. Which I'm not going to make excuses for because it was me who made those decisions. And I have paid for my wrong doings. Ifthere were things I could change in my past I would, but l can't turn back time. So all I can do is look at my present and in to my future in a positive way.[sic]
I have lived, learnd and experienced my whole life in Australia. This is my home. I've completed all my primary and high schooling here. I've completed work apprenteships. And I have been working for the past 2 years at Challenge Brick Paving here in Perth. Which I make a steady income to support my family. Since I have been in prison I have completed numerous drug courses, life skill programmes and I am currently enrolled and attending cognitive skills training. And by the time I'm released I will have completed them. Which I believe will help in decisions and choices I make. And also give me a better outlook at life. [sic]
I have 2 children and a fiance who is Australian. And my 2 children … and … were born here in Perth W.A. My mother also lives here in Perth. This is were [sic] all my family support and network are. My heart and soul are Australian. All I need is my citizenship. I have no one in New Zealand. All im asking is please understand that if I was sent there I would have no support lose my family, children and my whole life. I would be lost. Please all im asking is for the chance and opportunity to stay with my family at home here Australia. [sic]
It is evident that CFVG has a serious issue with drugs. As summarised by Scott DCJ in sentencing CFVG in 2015 (T3 at 32-33):
You started drinking at 12. You were a heavy user of cannabis from the ages of 12 to 16, but you became too paranoid by the use of cannabis and you gave it up. You used amphetamines from 16 intravenously. You say that you do not like the drug but you take it if it is available, which the psychologist, [Ms A], said suggests limited capacity on your part for self-restraint.
You told her that heroin had been your drug of choice, but you went on a methadone program about two years ago and you ceased use. You told her that you have engaged in a number of courses to address substance abuse.
She said that you made comments indicating that you were engaged in programs to satisfy parole and other requirements rather than as a genuine endeavour to get off drugs. She said that until you develop a genuine desire and motivation and a commitment to overcome uses of drug and alcohol dependency, treatment is likely to be of limited benefit.
What she's saying is if you don't make a real genuine endeavour to get off drugs and alcohol, the programs that are made available to you and the treatment that's made available to you are likely not to be of much assistance and that makes sense, as you must be aware.
She said that you've got antisocial personality traits where you show a blatant disregard for rules and you show limited remorse for your actions, and that's consistent with your entrenched history, drug and alcohol dependency being prominent.
She also said that although you indicated at the time you spoke to her that you were willing to consider treatment in a residential rehabilitation facility that would be if it resulted in a lesser sentence as opposed to a real commitment to deal with the drug and alcohol issues.
I've read the report as well from [Dr O]. He makes similar observations to [Ms A]. He refers to the fact that when you committed these offences you were under the influence of amphetamines and you were intoxicated when the offences took place.
You say that you were subject to – or he suggests and advances the opinion from what you told him that you were under what he referred to as a speed psychosis, that is that you were hallucinating and you intended to knock yourself out when you went to the second of the premises.
He says however that when he attended on you that there was no evidence to suggest that you've got functional mental illness such ai schizophrenia or bipolar disorder. Rather you experience transient – that is from time to time psychotic symptoms in the context of amphetamine intoxication or within a few weeks of amphetamine use.
In oral evidence before the Tribunal, CFVG explained that he is now enrolled in the Pathways Methadone Program in prison and drug counselling through Narcotics Anonymous in prison. While this is clearly a positive step, CFVG admitted when cross examined by Mr Gerrard that he was previously on a Methadone program in 2008 (when not in prison) but “fell off it”. He also visited Palmerston Counselling for drug use as a teenager but that obviously had little effect as he continued to take drugs and was, on his evidence, “off his head” when he committed the home burglary in 2015 for which he is now serving prison time.
CFVG believes he now has “self-restraint” and wants “a second chance”. He believes he can stop his drug taking and this, in turn, will stop him committing serious crimes.
It is clear from the material before the Tribunal that CFVG has had a serious problem with drug abuse from a very young age. This, in turn led to his extensive criminal offending. Given the well documented effects of drugs of this sort, it is not surprising that CFVG soon developed mental health issues, culminating in what is referred to as psychotic episodes resulting in offending behaviour. On the evidence, CFVG does not appear to have any ongoing mental health issues, other than when taking drugs. And herein lies the problem for CFVG – his drug addiction issue and its link to criminal behaviour.
Before this Tribunal, CFVG explained that he has now overcome his drug dependency and, as such, is no longer a threat to himself or anyone else. It is noted that whilst in prison, CFVG undertook at least one rehabilitation course aimed at addressing his drug addiction and is now back on Methadone.
Although CFVG’s recent commitment to drug rehabilitation is a positive step, the Tribunal is entitled to have significant doubts about the effectiveness of these rehabilitation programs for CFVG in circumstances where CFVG has not had the opportunity to demonstrate any meaningful rehabilitation outside of a supervised environment in prison. Further, his past inability to demonstrate rehabilitation while in the community, despite measures being available to him, weigh heavily towards a finding that he will re-engage in drug taking likely to cause him to reoffend.
Finally, it is noted that a formal warning on 25 March 2009 from the Department that future offending would expose him to the risk of visa cancellation and removal (T7 at 186-187) had no effect. Since receiving that warning, CFVG received a further 30 convictions. The Minister has contended that this is a clear indication that CFVG’s risk of recidivism is very high. The Tribunal agrees.
Like the Minister’s delegate before it, in considering whether CFVG represents an unacceptable risk of harm to the Australian community, the Tribunal has had regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. It is noted that some conduct and harm that would be caused if it were to be repeated is so serious that any risk that it is repeated may be unacceptable. Further, in making an assessment regarding the risk to the Australian community, the Tribunal has had regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
b)the likelihood of further criminal or other serious conduct, taking into account information and evidence on the risk of the person re-offending.
Overall, although CFVG has taken some positive steps towards rehabilitation, the Tribunal considers that it cannot yet be concluded that his risk of re-offending in the future is low. The present risk to the Australian community if CFVG engages in further criminal conduct is simply unacceptable. The offences committed by CFVG exhibit an attitude of recklessness toward the well-being of the Australian community. Offences of the sort committed by him have the potential to endanger lives in the Australian community. Given the nature and seriousness of CFVG’s past conduct, and the very real risk that will commit further offences in the future as a result of his addiction issues, the Tribunal finds that the protection of the Australian community is a consideration that weighs heavily in favour of refusing to revoke the mandatory cancellation of CFVG’s visa.
(ii)Best interests of minor children in Australia
CFVG is the father of two minor children in Australia. Both children were removed by the Department of Community Protection approximately nine years ago due to issues of drug abuse and their general welfare (T3 at 32). They have been with the same foster family since that time and that family has now legally adopted both children. CFVG had contact with the children after they were removed from his home and, on his evidence, had a good relationship with them. All visits were supervised by DCP. CFVG has not seen the children in 3½ years -- since he was last incarcerated -- because he did not want them to see him in prison. The children’s’ biological mother is nowhere to be found and has no contact with them. CFVG’s mother visits the children, has a good relationship with them and is seen by them as their grandmother.
As outlined in paragraph 13.2 of Direction No. 65, the Tribunal must make a determination about whether revocation of a decision to cancel a visa is in the best interests of CFVG’s children.
Paragraph 13.2(4) of Direction No. 65 sets out the factors the Tribunal must consider if relevant. They are:
(a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is not existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that contact has, or will have, a negative impact on the child;
(d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e) Whether there are any other persons who already fulfil a parental role in relation to the child;
(f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect;
(h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
In relation to the best interest of CFVG’s children, the Tribunal notes that in a Statement of Facts, Issues and Contentions dated 11 May 2017, counsel for the Minister contended:
48.The applicant has provided no real evidence of the nature or extent of his involvement with his 2 children. The fact that they were removed into foster care indicates that there were concerns relating to his (and his partner’s) ability to properly care for them. It also appears to be the case that they have had, and will continue to have, consistent care provided by the same foster family.
Overall, counsel for the Minister acknowledged that it is in the best interests of CFVG’s two children for the decision to cancel his visa to be revoked and CFVG’s visa reinstated. While CFVG has had limited contact with his children of late, they are nonetheless his biological children and it is likely they will want to see their father in the years ahead – particularly given their ongoing relationship with CFVG’s mother. The Tribunal does not doubt CFVG’s sincerity when he says he now only wants what is best for his children. He is aware that his mistakes have had a significant impact on his children’s lives and is keen to make amends.
In his closing submissions, council for the Minister contended that although the best interests of CFVG’s children is a consideration that weighs in favour of setting aside the Cancellation Decision, this consideration is outweighed by the other primary considerations – in particular, the protection of the Australian community and the expectations of the Australian community (discussed below).
The Tribunal agrees. Based on the evidence presented, the Tribunal accepts that it is in the best interests of CFVG’s children for the decision to cancel CFVG’s visa to be set aside and CFVG’s visa to be reinstated. However, the Tribunal notes that one or more primary considerations may outweigh other primary considerations and that this is the case here. The disadvantage that might arise to CFVG’s children (noting that both children have now been adopted and appear on the evidence to be content in their new lives) is outweighed by the nature and seriousness of CFVG’s criminal offending and the risk to the Australian community should CFVG reoffend.
(iii)Expectations of the Australian community
The third consideration listed in Direction No. 65 is the expectations of the Australian community. In this regard, paragraph 13.3(1) of Direction No. 65 states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to cancel the visa held by such a person. Visa cancellation 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 continue to hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
In relation to the expectations of the Australian community, the Tribunal notes submissions made counsel for the Minister as follows:
52.Having regard to those principles the respondent submits that whilst the Australian community may have a greater tolerance for a person who has lived in Australia for a lengthy period, in the applicant’s case that tolerance would have long ago been exhausted in light of the extremely high number of convictions, the frequency of offending, the blatant disregard of warnings, the pessimistic assessment of rehabilitation and the significantly high risk of re-offending. In circumstances such as these, the Australian community would expect that the applicant’s visa be cancelled.
In analysing this third and primary consideration, the Tribunal again refers to the stated principles in paragraph 6.3 of Direction No. 65 and, in particular, the principles that:
·the Australian community expects the Australian Government to cancel the visas of non-citizens who commit serious crimes; and
·non-citizens who commit serious crimes should generally expect to forfeit the privilege of staying in Australia.
The Tribunal considers that the expectations of the Australian community are that a non-citizen, such as CFVG, with an extensive criminal record (indeed, one of the longest this Tribunal has seen in sometime), should expect to lose his visa and forfeit the privilege of remaining in Australia. This is despite him having lived here since the age of two years. To repeat what was noted above, CFVG’s record of offending began at the age of 12 old and includes numerous serious property, dishonesty, drug and traffic offences. He has received a number of prison sentences. In sum, CFVG has 109 convictions as an adult and 81 convictions as a minor. His most recent, and most serious, offence was committed in 2015. CFVG was found guilty of attempted aggravated burglary with intent in dwelling (sentenced to 4 years imprisonment) and burglary and commit offence in dwelling (four years imprisonment concurrent). The sentencing judge described CFVG’s actions as a 'very serious' attempted burglary, given the presence of a young girl in the house – a young girl who was clearly traumatised.
The community’s expectations in this regard weighs heavily against the revocation of the decision to cancel CFVG’s visa.
(iv)Other considerations
Paragraph 14(1) of Direction No 65 provides:
14. Other considerations – revocation requests
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
Based on the evidence currently available, the only other considerations that may be relevant in the present case are the strength, nature and duration of CFVG’s ties with Australia and the extent of impediments to him if he is removed from Australia. This was not disputed.
Strength, nature and duration of ties
Paragraph 14.2(1) of Direction No 65 requires the Tribunal to consider CFVG’s ties to Australia as follows:
14.2 Strength, nature and duration of ties
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
In relation to this issue, CFVG wrote the following letter to the Tribunal, received on 6 June 2017 (A2), as follows:
I’m writing this letter in response to having my visa cancelled. The reason being I faild the charcter test due to my crimanl history. That is my past history and that’s were it will stay in my past forever. I ask that you look towards my future, which is what I need to do. I look forward to seeing my 2 children … again and im now able to get my drivers license which opens up a lot of work oppunities for me which I’ve never had before and I know I have these oppunities for me. In New Zealand I have nothing. My mother is having a cancer scare at the moment I need to be there for her because she is not in the best of health. If I was to be taken to New Zealand I would never see my children or my mum again that’s for certin. All I ask is can you give me a second chance. I need to be there for my family. Please let me have that oppunity. Thank you for taking the time and consideration in reading my letter. [sic]
CFVG’s mother also wrote as follows (undated, T3 at 80):
Always I hope for good that people can change, … too, reguardless [sic] of the fact that he has again reoffended.
I now, 62 years of age could do with assistance in many activities (quite normal, daily or weekly doings). I have had surgery on both of my hands, re: Carpal Tunnel and still suffer the pain and constriction of the condition. Simple things many times bring about facial grimaces and sudden reflex (like bending or grabbing of the offending pain or veering away from it. It involves nerves and is ongoing. Patience my specialist tells me – whom I am currently still seeing. I was diagnosed late in life because in youth one can shrug certain discomforts and odd sensations off. Ergo – damage is done & continues damaging, because in youth we cannot see ourselves old & do not know the actual weakness of the flesh & how debilitating it can be.
If … could aid me some of these simple things, like picking up grocery items from a shelf & putting them into a trolley … hanging out washing … carrying back garden needs … stick vacuuming & yes at times even watering.
My [child]… could be of assistance to me, if he was here.
My needs would not infringe on a life … needs to build, employment & stability is something he himself must pursue, as a dad, and as a man, this he has said and knows.
I do love my son and his [children], my [grandkids] here.
The solicitor for the Minister in a Statement of Facts, Issues and Contentions dated 11 May 2017 contended as follows:
56.The applicant has been ordinarily resident in Australia since arriving at the age of 2 in 1984. His mother, partner and 2 children reside in Australia. He claims to have worked, albeit to a limited degree, in the brick paving industry in Australia. Balanced against this, though, is the applicant’s history of criminality and substance abuse. The applicant also began his offending as a minor. His lengthy criminal record clearly does not reflect a positive contribution to the Australian community
57.The respondent concedes that the applicant has some ties to Australia, albeit not to the extent that they should outweigh the protection of the Australian community.
CFVG has spent most of his life in Australia. On the evidence, he has been engaged in some employment (primarily as a bricklayer) and has, accordingly, been making some contribution to the community. It is also evident that CFVG’s mother is unwell and seeks an ongoing relationship with her son. Further, as outlined above, CFVG clearly wants a relationship with his two children.
The Tribunal sympathises with CFVG’s mother and does not doubt his commitment to his children. The Tribunal notes, however, that CFVG arrived in Australia at the age of two years and started criminal offending at the age of 12 years. His criminal record thereafter is extensive and the seriousness of his crimes increased with each passing year.
Overall, while the Tribunal finds that CFVG does have ties to the Australian community, the Tribunal is not convinced on the balance that the nature and strength of his ties with Australia outweigh the primary considerations referred to above.
Extent of impediments if removed
Paragraph 14.5(1) of Direction No 65 requires the Tribunal to consider the extent of any impediments if CFVG is removed from Australia as follows:
14.5 Extent of impediments if removed
(1)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 substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
In relation to this issue, CFVG has written (T3 at 91):
I have been in Australia since I was 2 years old and I have never left. If I was taken to New Zealand I would lose my kids, my family and all my support. I would have no were (sic) to go let alone what to do.
Counsel for the Minister, in turn, contended as follows:
61.The respondent concedes that the applicant may experience some hardship as a consequence of moving to New Zealand but notes that New Zealand is a country which is broadly comparable to Australia in terms of language, culture and access to employment, health services, education and social security.
At the hearing of this matter, CFVG was visibly distressed at the thought of returning to a country he knows little about. He has no family in New Zealand, no accommodation and no employment contacts. CFVG’s concerns in this regard are not surprising. He has not lived in New Zealand since he was two and any efforts to rebuild his relationship with his children will be made much harder once he is separated geographically from them.
During closing submissions, Mr Gerrard, for the Minister, contended that there were highly regarded programs available to CFVG as a prisoner returning to New Zealand which would assist him reintegrate into New Zealand society. In particular, the Tribunal was directed to the services now offered in New Zealand by People at Risk Solutions (“PARS”). A summary of these services is provided on the group’s webpage, “Freedom through Growth” at: (R4) as follows:
PARS Incorporated formerly known as the Prisoners’ Aid and Rehabilitation Society of the Auckland District Inc, changed its name on the 20 November 2012. PARS has years of experience assisting the needs of prisoners, ex-prisoners and their families/whanau, delivering services inside and outside the prisons.
PARS Inc is a charitable organisation based in Mt Eden, Auckland providing services to prisoners in prisons from South of the Bombays to Cape Reinga in the North and travel nationally to interview prisoners in their domiciled prisons under the ‘Supported Accomodation [sic]’ services agreement.
Our Purpose is to assist prisoners, ex-prisoners and their whanau with practical assistance that enables them to access essential services at the right time and with the right support.
Deportees
It is common for deportees to arrive in New Zealand with virtually no support or access to resources. Changes to the Australian Migration Act in December 2014 have enabled Australian officials to facilitate the deportation of suspected or convicted criminals, with 119 people deported to New Zealand from Australia between January and mid-August 2015. It is estimated up to 1000 mauhere will be deported to New Zealand from Australia in the next five years following the recent law change. Almost 400 New Zealanders’ visas have been cancelled since the law change and nearly half of these mauhere are in Australian immigration centres awaiting deportation. Old habits, an unfamiliar environment and a lack of positive, supportive social connections mean many ex-prisoners reoffend when they arrive back in New Zealand – unless they get the support of PARS.
Services
PARS – People At Risk Solutions – has a long history (117 years) of providing services to prisoners, released prisoners, and their families/whanau. PARS is informed and underpinned by kaupapa Maori and provides culturally appropriate support for all clients. A range of specialist services are delivered at a critical time to break down the barriers to living a positive, productive and crime-free lifestyle. The PARS team are effective navigators to a place of safety and inclusiveness. The staff build capability and sense of responsibility in each client to make achievable changes for a better future. Our services include:
Community Mentoring Programme
Some people have a support network and the required social skills to reintegrate into the community following release, yet for others it can seem daunting. The Community Mentoring programme is all about helping released prisoners readjust to life outside of prison. It offers one-one-one support, by specially trained volunteers, to help establish support networks, promote healthy decision-making, enhance social skills and encourage released prisoners to navigate their lives independently.
Pasifika Mentoring Programme
In the same way that prisoners are best off if supported by people that care and want the best for them upon release, it can also be beneficial to be immersed in a familiar cultural environment. The Pasifika Mentoring programme enables just that – with life skills, social skills and connection with the community facilitated in a culturally sensitive way.
National Child Travel Fund
At PARS, we recognise that families/whanau play an important part in a prisoner’s re integration into their community. When a loved one is imprisoned, it can put extra stresses, and extra costs, on families. With little other help available, the reality is that it may not be viable to visit often. PARS provide a travel subsidy to help encourage strong family relationships. PARS is also the National Administrator of the Child Travel Fund on behalf of the Prisoners Aid & Rehabilitation Societies through out New Zealand and the Salvation Army reintegration service.
Reintegration Support for Long Serviers (RSLS) and Emergency Accommodation.
The main focus of this service is to assist prisoners to reintegrate into whanau, community and New Zealand society after imprisonment; to guide the prisoner away from the trigger points that cause them to re-offend; to assist them in confronting the issues around offending and to acquire the skills that develop strong self determination and quality decision making.
Supported accommodation
It can be daunting to face release from prison with nowhere else to go. Recognising the need for support to break the cycle of reoffending. PARS has been providing supported accommodation in Auckland for over a decade, with safe, self-care environments immediately following release and support to then help released prisoners find independent, long-term solutions.
Emergency accommodation
Long term sustainable accommodation is a challenge for many. This service supports high risk and I or high-need community offenders through their transition to sustainable accommodation by meeting their immediate accommodation needs.
In relation to the requirements of paragraph 14.5(1) of Direction No. 65, the Tribunal is not convinced that there are significant impediments to CFVG being removed to New Zealand in circumstances where the language and culture in that country are similar to that of Australia. CFVG is a New Zealand citizen and will have access to basic social, medical and economic support in that country. Importantly, these services include psychological and drug counselling of a sort that will assist CFVG rebuild his life and deal with the substance abuse issues that caused him to offend in Australia. The Tribunal also notes the considerable efforts of organisations like PARS to assist deportees from Australia to New Zealand. This is a significant social undertaking and its benefits to men like CFVG should not be underestimated. Although it is clear that life will be challenging for CFVG, given that he has not lived in New Zealand since he was two, the extent of the impediments that he will face if removed does not weigh heavily in favour of revocation of the Cancellation Decision. Importantly, the extent of any impediments that do exist does not outweigh the primary considerations discussed above.
Accordingly, the Tribunal finds that this consideration does not favour revoking the decision to cancel CFVG’s visa.
CONCLUSION
CFVG has an extensive criminal history spanning 21 years. He arrived in Australia at the age of two and began criminal offending at the age of 12 years. His criminal offences include numerous property, dishonesty, drug and traffic offences for which he has received a number of prison sentences. In sum, CFVG has 109 convictions as an adult and 81 convictions as a minor.
CFVG’s most recent, and most serious, offence was committed in 2015. CFVG was found guilty of attempted aggravated burglary with intent in dwelling (sentenced to 4 years imprisonment) and burglary and commit offence in dwelling (four years imprisonment concurrent). The sentencing judge described CFVG’s actions as a 'very serious' attempted burglary as there was a young girl in the house. The Judge stated that, according to a victim impact statement, the impact on this young girl has been significant
Having received a sentence of a term of imprisonment in excess of 12 months, CFVG has a “substantial criminal record” and does not, as a result, pass the character test in s 501(6) of the Migration Act. Further, as CFVG is serving a sentence of imprisonment on a full-time basis in a custodial institution, he was liable for mandatory cancellation of his visa pursuant to s 501(3A) of the Migration Act. His visa was mandatorily cancelled on 2 September 2016.
In determining whether there is any reason why the decision to cancel CFVG’s visa should be revoked, the Tribunal has attached significant weight to the fact that CFVG’s offending is quite serious in nature. The commission of his most recent burglary related offence in 2015 resulted in a young girl being traumatised and must be viewed seriously.
In this regard, the Tribunal has taken account of the following factors detailed in paragraph 13.1.1 of Direction No. 65:
a)the sentence imposed by the courts for crimes – noting that in CFVG’s case a lengthy custodial sentence was ordered despite his early guilty plea and despite the fact that he had serious drug related issues.
In these circumstances, CFVG should, as per paragraph 6.1 of Direction No. 65, expect to be denied the privilege of staying in Australia.
The Tribunal also finds that there remains an unacceptable risk that CFVG may engage in further criminal conduct if he remains in Australia and that the Australian community will, as a consequence, be at risk.
In making this assessment the Tribunal has considered the nature of the harm to individuals or the Australian community should CFVG engage in further criminal or other serious conduct and the likelihood of further criminal or other serious conduct, taking into account relevant information and evidence on the risk of CFVG re-offending. CFVG’s prospects of avoiding further offending are highly dependent on his ability to deal with his drug addiction. Although CFVG’s recent commitment to drug rehabilitation is a positive step, the Tribunal is entitled to have significant doubts about the effectiveness of these rehabilitation programs for CFVG in circumstances where CFVG has not had the opportunity to demonstrate any meaningful rehabilitation outside of a supervised environment in prison. Further, his past inability to demonstrate rehabilitation while in the community, despite measures being available to him, weigh heavily towards a finding that he will re-engage in drug taking likely to cause him to reoffend. On the evidence, the Tribunal finds that while CFVG has undertaken some steps to address his drug addiction issues, he still has considerable work to do in this regard. Given his record, the Tribunal finds there to be a very real risk that CFVG will engage in anti-social and harmful behaviour once released from prison and returned to the Australian community. Given the nature of his crimes to date this is an unacceptable risk to the community and weighs heavily against any revocation of the decision to revoke CFVG’s visa.
Given the quite serious nature of the crimes committed by CFVG and the very real prospect of future serious criminal offending, the Tribunal is also of the view that the Australian community would expect that CFVG’s visa would remain cancelled.
There are considerations that weigh in favour of revocation of the decision to cancel CFVG’s. These include his ties to the Australian community, the best interests of his two children and the best interest of his mother. The Tribunal also accepts that CFVG will face some difficulties if returned to New Zealand.
The Tribunal finds, however, that these countervailing considerations do not, on balance, outweigh the other primary considerations referred to above.
Overall, the Tribunal finds that having regard to all of the primary considerations and other relevant considerations required to be taken into account by the Tribunal under Direction No. 65 the correct and preferable decision is to refuse to revoke the cancellation of CFVG’s visa.
DECISION
For the reasons outlined above, the decision under review is affirmed.
I certify that the preceding 104 (one hundred and four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall.
...........[sgd].....................................
Administrative Assistant – Legal
Dated: 29 August 2017
Date of hearing: 31 July 2017 Representative of the Applicant: Self represented Representative of the Respondent: Mr A Gerrard Solicitors for the Respondent: Australian Government Solicitor
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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