CKMY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 3560
•21 October 2022
CKMY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 3560 (21 October 2022)
Division:GENERAL DIVISION
File Number(s): 2022/6276
Re:CKMY
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Mrs J C Kelly, Senior Member
Date:21 October 2022
Place:Sydney
The reviewable decision to refuse the Applicant’s application for a Child (Residence) (Class BT) visa is set aside and in substitution, it is decided not to exercise the discretion to refuse the application under section 501(1) of the Migration Act 1958 (Cth).
...............................[SGD]........................................
Mrs J C Kelly, Senior Member
Catchwords
MIGRATION – child visa – visa was refused under s 501(6)(d)(i) because applicant did not pass character test – whether applicant passes the character test– whether the discretion should be exercised to refuse the Applicant’s visa application – offending as a child a relevant consideration – offences committed as an adult – offences committed as a child – Ministerial Direction No. 90 – primary considerations – protection of the Australian community – best interests of minor children – expectations of Australian community – other considerations – international non-refoulement obligations – extent of impediments if removed – links to the Australian community – decision set aside and substituted
Legislation
Children (Criminal Proceedings) Act 1987 (NSW)
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure Act) 1999 (NSW)
Criminal Records Act 1991 (NSW)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)Youth Justice Act 1992 (Qld)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23SGTX and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2536.
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23]; Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947; Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875
Secondary Materials
Direction 90 – Migration Act 1958 – Direction under section 499 Visa Refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
The Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Act 2014
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
21 October 2022
Introduction
The Applicant, CKMY, is a 19 year old citizen of Tonga who arrived in Australia with his grandmother in March 2017 holding a visitor visa. His grandmother left Australia about the end of 2017.
After periods of living with two different uncles and on the street, being in immigration detention and an alternative place of detention because his visa had expired, the Applicant was taken into the care of the New South Wales Minister for Family and Community services (FACS). He applied for a protection visa, was granted a bridging visa and also applied for a Child (Residence) (Class BT) visa (the visa).
His application for the visa was refused because the decision-maker was not satisfied that he passed the character test under section 501(6)(d)(i) of the Migration Act 1958 (Cth) (the Act) because, in the event that he were allowed to remain in Australia, there is a risk that he would engage in criminal conduct in Australia. The Applicant wants that decision reversed.
His application for a protection visa was refused before the decision the subject of this proceeding was made.
The principles set out in Direction 90 – Migration Act 1958 – Direction under section 499 Visa Refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90) provide a framework within which I must approach the task of deciding whether to exercise the discretion to refuse the Applicant’s visa application.
Issues
The issues I have to decide are:
(a)Are the criminal offences the Applicant committed when he was a child a relevant consideration?
(b)Whether the Applicant passes the character test; and
(c)If I am not satisfied that he does pass that test, whether the discretion should be exercised to refuse the Applicant’s visa application.
Is the offending as a child a relevant consideration?
The Applicant committed criminal offences when he was a child, that is, before he turned 18 years of age, and after he turned 18.
Whether his offending as a child is a relevant consideration in these proceedings arises because in Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23, the Full Court of the Federal Court (the FCFC) held that ‘a decision-maker who takes into account a conviction that falls within the scope of section 85ZR(2) of the Crimes Act 1914 (Cth) (Crimes Act) takes into account an irrelevant consideration’. In that case, the FCFC held that section 184(2) of the Youth Justice Act 1992 (Qld) (YJ Act) was such a provision.
The Minister submitted that Thornton was wrongly decided and advised that the High Court has granted special leave to appeal but accepts that the decision of the FCFC binds this Tribunal. The Respondent therefore submitted that this case can be distinguished because the State legislative provisions in this case are relevantly different in terms from the provisions of the YJ Act considered in Thornton. The Respondent referred to section 14 of the Children (Criminal Proceedings) Act 1987 (NSW) (CCP Act).
After I had reserved my decision, I asked the Respondent to consider the Criminal Records Act 1991 (NSW) which may be relevant to its submission. It provided comprehensive written submissions.
The Applicant was not legally represented at the hearing although he had been until 29 September 2022. A Statement of Facts Issues and Contentions had been filed which did not address this issue specifically but did note that the offences committed when he was a child were dealt with by way of good behaviour bond under section 33(1)(b) of the CCP Act and he was not convicted pursuant to section 14 of that Act.
Given the time constraint on publishing this decision, the complexity of the arguments on this issue raised by the Respondent and that there is no contradictor, I accept, for the purpose of this decision and without deciding, that the Respondent’s contentions are correct. That is, an analysis of the provisions of the Crimes Act, the Criminal Records Act and the CCP Act, demonstrates that there is no law which renders the findings of guilt made in the Children’s Court against the Applicant irrelevant considerations for the purposes of this review. The present case is distinguishable from Thornton.
The Applicant’s criminal history
The Applicant committed the following offences and received the following sentences as an adult:
On 16 June 2021, the Applicant pleaded guilty and was convicted of ‘Possess prohibited drug’ and fined $250. The drug was cannabis. The offence was committed on 19 May 2021.
On 26 March 2021 the Applicant was convicted of ‘Assault officer in execution of duty-T2’ and ‘Intimidate police officer in execution of duty w/o abh-T2’. A ‘Conditional Release Order’ (CRO) was made in respect of each offence for 12 months commencing 26 March 2021 and included ‘Rehabilitation with regards to drug alcohol; Treatment with regards to mental health and Any course deemed appropriate by Community Corrections Service Supervision’ (26 March 2021 to 25 March 2022). The offence was committed on 9 December 2020. The Applicant was also fined $150 for ‘Behave in offensive manner in/near public place/school’.
The offences the Applicant committed as a child were:
Court appearance 13/02/2020
Use etc offensive weapon w/i to commit indictable offence-T1: BOND S33(1)(B): 8 MONTHS
Court appearance 03/10/2019
Destroy or damage property <=$2000-T2; BOND S33(1)(B): 12 MONTHS SUPV JUVENILE JUSTICE
Attempt stalk/intimidate intend fear of harm (personal)-T2; BOND S33(1)(B): 12 MONTHS SUPV JUVENILE JUSTICE
Court appearance 26/09/2019
Stalk/intimidate intend fear physical etc harm (personal)-T2
BOND S33(1)(B): 12 MONTHS SUPV JUVENILE JUSTICEAssault occasioning actual bodily harm-T2
BOND S33(1)(B): 12 MONTHS SUPV JUVENILE JUSTICECommon assault-T2: BOND S33(1)(B): 12 MONTHS SUPV JUVENILE JUSTICE
Court appearance 13/08/2018
Robbery-T1: BOND S33(1)(B): 10 MONTHS;
Resist officer in execution of duty-T2: BOND S33(1)(B): 6 MONTHS
Escape police custody-T 1: BOND S33(1)(B): 6 MONTHS
Does the Applicant pass the character test?
The question I have to answer pursuant to section 501(6)(d)(i) of the Act is, in the event that the Applicant were allowed to remain in Australia, is there a risk that he would engage in criminal conduct?
I summarise the incidents that resulted in the criminal record set out above and some other matters raised by the Respondent which it submits are relevant to the risk of the Applicant reoffending.
Offences committed as an adult
On 16 June 2021, the Applicant pleaded guilty and was convicted of ‘Possess prohibited drug’ and fined $250. He committed the offence on 19 May 2021. He told the Tribunal that it was his cousin’s cannabis, and he did not want to ‘give up’ his cousin to the police. The Applicant said that he had stopped using cannabis at the time.
Charges arising from three different incidents were heard in court on 26 March 2021 as well as the finalisation of an apprehended violence order (AVO) arising from another incident.
On 9 December 2020, within weeks of the Applicant turning 18, he committed the offences of ‘Intimidate police officer in execution of duty w/o abh-T2’ and ‘Assault officer in execution of duty-T2’. Two police officers had a friend of the Applicant in custody and handcuffed and were walking him through a shopping complex. The Applicant approached the group to shake hands with his friend. He was told to step away. He became aggressive and argumentative, took up a fighting stance, and challenged one of the officers to a fight. He was arrested, handcuffed, and taken to a police station. While under caution, he said ‘Look I had a very bad day, I just wanted to challenge you’. The Applicant told the Tribunal that he knew the police officer from previous encounters.
The ‘Behave in offensive manner in/near public place/school’ occurred on 26 February 2021 and involved making a rude gesture towards the police.
The third incident dealt with on 26 March 2021 occurred on 29 December 2020. The Respondent cross-examined the Applicant about this quite extensively. The Applicant tried to use two stolen credit cards to pay $4.60 for a bottle of coke. Both transactions were declined. It was not suggested that the Applicant had stolen the credit cards. The Applicant was charged with ‘Dishonestly obtain property by deception’. The court convicted the Applicant without imposing any other penalty.[1] This is not recorded in his criminal history.
[1] Crimes (Sentencing Procedure Act) 1999 (NSW), s 10A.
On 26 March 2021, the sentencing magistrate noted that the Applicant was not working and was satisfied that he needed rehabilitation and treatment and some support in the community.
Final orders, by consent and without admission, were also made for a 12 month Apprehended Domestic Violence Order (ADVO) relating to a person who had been in a youth care home with the Applicant. The Applicant recalled that the argument was over food.
Offences committed as a child
On 13 February 2020, the Applicant attended court for the offence ‘Use etc offensive weapon w/i to commit indictable offence-T1’ committed on 29 May 2019 at the youth care home where the Applicant lived. The Applicant believed that the other person had put excrement on his toothbrush. When the Applicant went into the other person’s bedroom, the other person picked up a didgeridoo, held it in a diagonal offensive position and walked towards the Applicant who stepped back and located a metal pipe/rod which he picked up and held in a defensive position and approached the other person. A carer persuaded them to put the objects down.
The offences dealt with by the court on 3 October 2019 occurred on 24 June 2019 at a youth care home where the Applicant lived. Around 3.15PM the Applicant arrived home from school (he was undertaking an intensive English course) and asked his carer, the victim, if he could enter another youth’s room. When told he was not allowed to do so, the Applicant began yelling at the victim. The victim went to involve another staff member. The victim heard a bang and witnessed a vacuum cleaner being thrown down the stairs. He heard another bang and saw what he recognised to be a side table that was broken into pieces at the bottom of the stairs. A further conversation followed between the victim and the Applicant who continued to scream at the victim. The Applicant went outside, and the carers remained inside, watching him. He continued to scream and yell, grabbing a chair and smashing it to pieces and then doing the same to another chair. Both carers walked outside to try to calm the situation by speaking to the Applicant. He continued to walk around smashing things, including a barbecue. He then walked around the side of the house where the carer followed and, through a window, asked another carer to contact police. The carer continued following the Applicant in and out of the house where the Applicant continued smashing walls and the barbecue. The Applicant pointed a wooden chair leg at the victim and threatened to kill him. At about 3:30PM the police arrived.
The Applicant told the Tribunal, as he told the police, that he had wanted to go into the room to get cigarettes.
The offences dealt with by the court on 26 September 2019 related to an incident that occurred on 4 and 5 July 2019 in the youth care home where the Applicant lived. The victim was invited to the home by a resident and was introduced to the Applicant at about 10:30PM. The three played video games for about half an hour. The Applicant asked to use the victim’s mobile phone to watch YouTube videos. The Applicant asked the victim to exchange the phone for a pair of shoes. The victim declined and took his phone back. The Applicant left the room for about five minutes and then returned holding a frying pan in each hand. He threatened to hit the victim with the frying pans if he did not give him the phone. The two argued, while the Applicant was moving slowly towards the victim swinging the fry pans towards him until the victim rushed towards him. A struggle ensued.
A section 33(1)(b) bond was issued on 25 September 2019 for the offence ‘Assault actual bodily harm (DV)’ which was committed on 19 June 2019 against another resident of the care home where the Applicant resided. This matter does not appear in the Applicant’s criminal record. That appears to be an omission.
When the victim got home from school and gained entry to his locked room from carers, he found that his belongings had been disturbed. When the victim asked the Applicant whether he had been in his room, the Applicant denied taking anything before pushing the victim backwards and then punching the left side of his face. After some mutual pushing, the victim walked around a kitchen bench which the Applicant climbed across to again strike the victim to his head. Next, the Applicant punched the victim several times from behind before falling down and they wrestled until separated by staff. The victim sustained slight swelling to his face and red marks to his neck and chest. Police attended.
The offences ‘Resist an officer while in the execution of his/her duty’; ‘Escape police custody’; ‘Robbery’ dealt with in court on 13 August 2018 were committed on 31 July 2018. The Applicant had been taken into immigration custody on 1 July 2018 and escaped on 3 July 2018 by forcing locks and jumping off the balcony of the Parramatta hotel where he was being held. Police and Border force officials had been looking for him.
The Applicant asked the victim for a cigarette, which he was given, and then demanded the victim’s mobile phone. The victim refused. A struggle followed. The Applicant grabbed the victim by the jumper, slammed him onto the ground and took the phone. The Applicant ran off followed by the victim. A witness called police. The victim returned to the park, only for the Applicant to also return and demand payment for the phone. Police arrived and after a chase, tackle, and struggle, handcuffed the Applicant. While the police were waiting for a caged vehicle to arrive, the Applicant ran off across four lanes of traffic into a unit complex where he was located and placed under arrest.
The other offences dealt with by the court on 13 August 2018 were ‘Unlawfully obtained goods’ offences committed on 28 April 2018 which involved being in custody of a stolen jacket and pants, and on 22 April 2018 (also recorded as 25 April 2018) ‘Intentionally mark premises etc without prescribed consent’ which involved marking a Coca-Cola vending machine with a black texta marker. The Respondent cross-examined the Applicant about these events. Both offences were dismissed with caution pursuant to section 33(1)(a) of the CCP Act and do not appear in the criminal records.
More recent incidents for which no charges were laid
The Respondent cross-examined the Applicant about incidents recorded in police records but for which no charges were laid.
On Friday 5 August 2022 at 9:30PM, police followed an erratic driver into a service station. The police could smell cannabis and observed a bong in the rear passenger footwell. The police searched the vehicle and located 21.8 grams of cannabis, of which the occupants denied knowledge. No action was taken apart from issuing a warning to the driver, who was not the Applicant. Consistent with their statement that they were going night fishing, the occupants of the vehicle had fishing gear and food for the night.
At the hearing, the Applicant said that he only had alcohol and coke. The cannabis belonged to his mate who was the same one he was with on 5 November 2021 (see below). They had been working together. He has not seen him because he has not worked since his lawyers said that he could not about three months ago.
On 23 December 2021 at 3:05AM, police approached a parked motor vehicle in which the driver and passenger appeared to be “passed out”. There was cannabis owned by the driver in the glove box and drug paraphernalia in the vehicle. Nothing was located on the driver or the passenger (the Applicant). The police reported that when he woke up, the Applicant was agitated with the police, declined to answer questions, and was unsteady on his feet. No action was taken against him. The Applicant told the Tribunal that that he had not smoked cannabis.
On 5 November 2021 at 9:40PM police approached a car parked in a public carpark at a railway station. Two people nearby got in and started to drive away. Police stopped them and reported that the Applicant was under the obvious effects of a prohibited drug and when asked, agreed that he was – cannabis. A search located no items of interest.
Before the Tribunal, the Applicant denied telling the police that he had smoked cannabis.
Consideration
The Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) specifically removed the word ‘significant’ from section 501(6)(d), leaving it as ‘a’ risk. The Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Act 2014 stated (at [46]):
‘…The intention is that the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.’
Clause 6(2) of the annexure to Direction 90 states that the ground will be enlivened if ‘there is more than a minimal or remote chance’ of the conduct in question occurring.
I will address the Respondent’s contentions on this issue.
The first was that the Applicant has a substantial criminal history for a person of his age, beginning when he was 15 and continuing into adulthood which demonstrates a sustained pattern of criminal behaviour and disregard for the law and members of the community. Measures taken to prevent further offending and encourage rehabilitation have had no influence on his behaviour.
I do not agree that there has been a sustained pattern of criminal behaviour. There are three separate and distinct periods of offending. His 2018 offending as recorded in his criminal record arose from one incident on 31 July 2018, after he had escaped from an alternative place of immigration detention on 3 July 2018. He stole a mobile phone, resisted arrest, and escaped from police custody. The two events in April 2018 are not recorded in his criminal record and were minor. He was living on the streets at the time.
The Applicant was put into the care of FACS in August 2018.
The Applicant did not offend again after July 2018 for almost ten months. The offences committed in 2019 were committed over a period of about five weeks from 29 May to 5 July 2019 against other residents and a carer, in the youth care home where the Applicant was residing. That is the period of the most serious and sustained offending the Applicant has committed.
The Applicant continued to reside in a youth care home until October 2020 when he turned 18 and then spent about five months in a transition home until about March 2021.
After no offending for 17 months, the most serious of the offences in 2020-2021 occurred against police on 9 December 2020. The offences on 25 February 2021 and 18 May 2021 were minor. He has not offended since then, a period of about 17 months.
The offences in December 2020 and February 2021 and the incident that led to the issuing of the interim ADVO in February 2021, occurred while the Applicant was living in the youth care transition home after turning 18.
The Applicant lived in similar accommodation from about August 2018 until about March 2021, more than two and a half years. His discrete periods of offending need to be understood within that chronological context.
The Applicant said that he used cannabis to calm himself and went through a lot of things and was very stressed. He used alcohol for the same reason.
I infer from the distinct periods of offending, that the Applicant has been particularly upset or distressed when he has offended. That is reflected in his contemporaneous comment in relation to the 9 December 2020 offences against the police that he had a very bad day. That of course does not excuse the offending.
The Respondent contended that the Applicant continued offending after he was put on notice on 4 December 2020 by his lawyers that his visa application was being considered for refusal. He committed the offences against police on 9 December 2020.
The Applicant agreed that his lawyers had spoken to him about the notice but could not remember when and he was uncertain what it meant. I am not satisfied that on 9 December 2020 he had been told or understood what consideration being given to refusing his visa meant. He did understand from his previous experiences in the Children’s Court that offending could result in a bond being issued.
The Respondent argued that there is little evidence that the Applicant has demonstrated remorse or sympathy for his victims. It pointed to the Applicant claiming that the person the subject of the ADVO (issued on 13 February 2021 and finally made on 26 March 2021) was the aggressor. The witness supported the Applicant to the extent that the person the subject of the ADVO was the instigator of the two events that occurred. The Applicant did shoulder barge the other person several times. This incident also occurred in a youth care home. The final ADVO was issued without admissions and no charges were laid.
The Respondent also referred to the Applicant’s statement to the Corrections case officer that he ‘could not comprehend he had done anything wrong’ with respect to the 9 December 2020 offences against the police.
A related matter is the lack of character references and evidence about his rehabilitation efforts. The Respondent emphasised the Applicant’s conviction for the offence ‘Possession of a prohibited drug’ in May 2019 and a history of cannabis use reflected in police notes and New South Wales Department of Corrective Services (Corrective Services) case notes.
The Applicant has only one conviction related to drugs. It was a minor offence. The incidents where drugs were mentioned in police notes in 2021 and 2022 did not result in any charges against the Applicant. His criminal history is not drug related. He claims that he has stopped smoking cannabis.
Finally, the Respondent referred to Corrective Services case notes dated 7 April 2021 about the Applicant viewing content and posting in relation to violent extremism and submitted that the Applicant has not addressed that behaviour. The note records that the Applicant said that he had spoken to Federal Police officers about it last year (2020) and did not have any connection with any ideology promoting violent extremism and deflected it to his associates using his phone. A note dated 6 May 2021 also referred to this issue. The note stated that despite his T1/Medium-Low risk of re-offending, supervision would continue until Community Corrections and stakeholders agreed suspension of supervision was appropriate. It was suspended on 8 October 2021. The evidence does not demonstrate that the Applicant is currently of interest to authorities in relation to violent extremism.
Contrary to the Respondent’s submission, there is evidence that the Applicant has taken steps to rehabilitate himself after the court appearance on 26 March 2021 and regrets his criminal offending.
He returned to live with his uncle and aunt in about April 2021. He lived on his own for a few months at the end of 2021 and the beginning of 2022, and then returned to live with his uncle and aunt after spending about five days in hospital when he sought help for his mental health. He was given medication while he was in hospital.
That he has lived with his uncle and aunt for lengthy periods of time since April 2021, is a significant indicator that his behaviour has changed and that his uncle is supportive of him. He lived with this uncle for some months after he arrived in Australia, but then ran away to live with another uncle who abused him. The Applicant apparently returned to live with his uncle and aunt from time to time but kept running away until taken into care in August 2018.
The Respondent emphasised that there were no statements from the uncle or any other member of his family. The Applicant said that he was not asked for any. His solicitors did not represent him at the hearing. I draw no adverse inference from the lack of supporting statements. The facts speak for themselves.
The first record of the Applicant working is a Corrective Services case note dated 30 March 2021 that the Applicant informed the officer that he had been employed by a construction company and was starting work at 7:00AM and finishing work at 3:30PM. The evidence suggests that he has worked, at least about four days a week, from then until a few months before the hearing when his lawyers told him he had to stop.
Corrective Services records include the following. An officer reported on 22 July 2021 that the Applicant stated that he had learned his lesson with regards to drugs and had ceased any use. He was motivated to abstain by his recent conviction. He had not had a drink for two weeks. On 8 October 2021 his aunt reported that the Applicant was doing well and there was a positive change in his attitude. On 8 October 2021 his supervision was suspended. The report states that he said that he realised NSW Police are not the bad guys and have a job to protect the community from criminals. He told the Tribunal that if he sees police he just smiles.
The Applicant said that he saw the drug and alcohol counsellor once while he was under the supervision of Corrective Services and thought that he would benefit from more sessions but was not sure how to arrange it after having ceased reporting to the case worker.
The Applicant told the Tribunal that he no longer smokes cannabis but still feels the side effects. He has too many thoughts on his mind, some not very good. He was angry with himself and his family. Why did they not help him when he was in trouble? It was a long time since he last had a drink. He said that other ways he has for calming himself are to go for a walk when he is angry and to smoke a cigarette to calm himself.
I accept that the Applicant’s plea to be given a second chance and move on from his past is genuine and heartfelt. He is not well-educated, does not have a good grasp of English, and is not articulate in either his first language or in English. He has had no professional support since Corrective Services ceased supervising him on 8 October 2021, apart from his hospitalisation in early 2022. There was apparently no follow up treatment.
The Applicant has made an effort to reduce his alcohol intake. He has been working and wants to continue to work. I infer that work has given him a routine and purpose as well as an income. Despite being in the company of others who have used cannabis, I accept that he has tried to, and managed generally to stop using it. More than 22 months have elapsed since he committed his last serious offence on 9 December 2020. That is consistent with his claim that he wants to leave the past behind and move on.
While I do not accept the Respondent’s submission that there is a substantial risk that in the event the Applicant w allowed to remain in Australia he would engage in criminal conduct. I am satisfied that there is a risk. That is, ‘there is more than a minimal or remote chance’ that he will engage in criminal conduct.
The Applicant has had two incentives not to reoffend – the CRO issued on 26 March 2021 and the threat that his visa will be refused which has been hanging over him since about the end of 2020. As I said to him at the hearing, I am concerned that once he is freed of such constraints, he may reoffend.
Insufficient time has elapsed since his last serious offences on 9 December 2020 and having no such constraints on his behaviour, to allow me to be confident that his ability to control his emotions is sufficient so that his risk of engaging in criminal conduct is minimal or remote.
I am not satisfied that the Applicant passes the character test under section 501(6)(d)(i) of the Act. It is therefore necessary to consider whether to exercise the discretion to refuse the Applicant’s visa, applying the framework set out in Direction 90.
Direction 90
The Preamble in Part 1 of Direction 90 sets out Objectives, including the purpose of the Direction, and the Principles, which provide the framework within which decision-makers should approach their task, relevantly, in exercising powers under section 501(1) of the Act. Part 2 of Direction 90 is about exercising the discretion. It sets out primary and other considerations and the factors to be considered in each case.
The principles that provide the framework for decision-makers are set out in paragraph 5.2 of Direction 90:
(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) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian government can and should refuse entry to non-citizens, or cancel the visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Paragraph 7 of Direction 90 gives directions about taking the relevant considerations into account:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
I have to weigh all ’primary’ and ’other’ considerations set out in Direction 90. ’Other considerations’ should not be necessarily given less weight in all cases; it is a case-by-case consideration.[2]
[2] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23]; Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947; Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875.
Each relevant consideration will be addressed in turn. Considerations that are not raised by the evidence are not addressed.
Primary considerations
Protection of the Australian community
The first primary consideration is protection of the Australian community from criminal or other serious conduct. Paragraph 8.1(1) of Direction 90 states:
(1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of Direction 90 requires a decision-maker to have regard to two matters when considering the protection of the Australian community:
(a)The nature and seriousness of the Applicant’s conduct; and
(b)The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct
Paragraph 8.1.1 of Direction 90 sets out the matters to which regard must be had when considering the nature and seriousness of the non-citizen’s criminal offending.
Paragraph 8.1.1(1)(a) of Direction 90 specifies that the following types of crime or conduct are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes, and.
The Applicant has committed a number of violent crimes, as described earlier in this decision. Most of them were committed while he was in a youth care home in the six-week period in May to July 2019. It is unlikely that he will be in a similar environment again.
Paragraph 8.1.1(1)(b) specifies conduct that is considered by the Australian Government and the Australian community to be serious. It includes:
(ii)crimes committed against government representatives or officials due to the position they hold or in the performance of their duties; and
(iv)A crime committed after the non-citizen escaped from immigration detention but before he has taken into immigration detention again.
The Applicant has committed offences against police officers in the performance of their duties more than once. He did have a ‘fixated’ dislike of police, however I accept that he no longer holds that view.
On 31 July 2018 he committed crimes of ‘Resist an officer while in the execution of his/her duty; Escape police custody’; and ‘Robbery’ after having escaped from immigration detention and before being taken into immigration detention again.
Paragraph 8.1.1(1)(c) of Direction 90 requires that the sentence imposed by the courts be considered. In the Children’s Court, the Applicant was subject to a number of bonds issued pursuant to section 33(1)(b) of the CCP Act. Convictions were not recorded. He was subject to a CRO for the offences committed on 9 December 2020 as an adult. Otherwise, he received two fines for minor offences as an adult.
Paragraph 8.1.1(1)(e) requires consideration of the cumulative effect of repeated offending. The Applicant offended during three separate periods as previously described, in 2018, 2019 and 2020/2021. The most crimes and the most serious crimes were committed over a six-week period in 2019 within the youth care home environment. The 9 December 2020 offences against police were the next serious offences. He has not committed a serious offence for more than 22 months. I give little weight to the cumulative effect of repeated offending.
I do not accept the Respondent’s contention that the Applicant was aware that his application for a visa was being considered for refusal when he committed the offences on 9 December 2020. I accept that he was aware of that by 26 February 2021 when he committed the ‘Behave in offensive manner in/near public place/school’ offence and on 19 May 2021 when committed the ‘Possess prohibited drug’ offence.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The Government’s view is that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases, and some conduct and the consequential harm, if repeated, is so serious that any risk that it may be repeated is unacceptable.[3]
[3] Direction 90, Paragraph 8.1.2(1).
When considering the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, I must consider cumulatively, the nature of the harm to individuals or to the Australian community should the Applicant engage in further criminal conduct and the likelihood of the non-citizen engaging in further criminal or other serious conduct.[4]
[4] Direction 90, Paragraph 8.1.2(2)(a) and (b).
The harm that could be dealt on members of the Australian community should the Applicant engage in further violent offences is serious and could involve physical and/or psychological harm to members of the community or law enforcement, as well as pecuniary harm due to the loss of, or damage to, personal property. Additional public funds are likely to be expended in dealing with any further offending.
For the reasons given above, ‘there is more than a minimal or remote chance’ that the Applicant will engage in criminal conduct. I do not consider that there is a substantial or significant risk that he will commit further offences. I consider that the level of risk is just above minimal or remote.
The evidence of the Applicant’s rehabilitation is 22 months of not offending, apart from two minor offences, the last one committed in May 2021. He has been managing his use of cannabis and alcohol. He has had the constraints of a CRO for part of that time and the consciousness that his visa application depends on his behaving. However, he has expressed remorse and a determination to move on from the past which I accept is genuine. He has changed his attitude to police which is very important to his rehabilitation. That he has been present where cannabis has been found or consumed by others seems regrettable because he has been exposed to temptation. However, he has resisted that temptation. He has the motivation to do so which supports accepting his claim that he has changed.
The consideration the protection of the Australian community weighs in favour of refusal of the visa.
Best interests of minor children in Australia
Paragraph 8.3 of Direction 90 addresses the best interests of minor children in Australia affected by the decision. A claim arises in relation to a 16 year old relative in the home where the Applicant resides. He has known the child since the Applicant arrived in Australia in 2017. He lived with the family for several months when he arrived and has lived with them again since about March 2020, except for a few months at the end of 2020 and the beginning of 2021.
The Applicant is unlikely to play a positive parental role in the future. The child has a mother and father who live with him. It is unlikely that the Applicant’s past offending has impacted on the child at all. The likelihood is that the Applicant’s future conduct will not have a negative impact on the child. Their relationship is not a close one and could be continued by electronic media.
The best interests of the child weigh slightly in favour of not refusing the visa application.
Expectations of the Australian Community
The fourth primary consideration is expectations of the Australian Community. Paragraph 8.4 of Direction 90 provides that the Tribunal should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community.
The Full Court of the Federal Court of Australia considered clause 11.3 of Direction 65, which is analogous to paragraph 8.4 of Direction 90, in FYBR v Minister for Home Affairs [2019] FCAFC 185. The majority (Charlesworth and Stewart JJ) concluded that clause 11.3 (and by extension paragraph 8.4) contains a statement of the government’s views as to the expectations of the Australian community, which operates to impute or ascribe to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or the evidence about those expectations.
Australia may afford a higher level of tolerance to criminal conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age.[5]
[5] Direction 90, paragraph 5.2(4).
The question for the decision-maker is the weight to be attached to this consideration.
The applicant has breached the trust of the Australian community. In accordance with Direction 90, paragraph 8.4(2)(d) the Australian community expects that the Australian Government should refuse the applicant’s visa because of the commission of a crime against government representatives or officials due to the position they hold, or in performance of their duties.
Those expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
The consideration, expectations of the Australian community, weighs in favour of refusing the visa application.
Other considerations
The relevant other considerations in this case are international non-refoulement obligations, the extent of impediments if removed from Australia, and links to the Australian community. Paragraph 7(2) of Direction 90 states the primary considerations should generally be given greater weight than other considerations.
International non-refoulement obligations
The Respondent raised the consideration, international non-refoulement obligations based on the Applicant’s claim to fear harm should he return to Tonga because of his previous ‘bad treatment’ from his uncle and ‘others’, and he will not have the protection from authorities and will be unable to look after himself. This consideration was not raised in the Statement of Facts, Issues and Contentions filed by the lawyers who previously represented him.
Where an applicant/plaintiff made representations seeking revocation of a cancellation decision under section 501(3A) of the Act which raised a potential breach of Australia’s international non-refoulement obligations, the first answer given by the High Court in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 sets out the consideration required when deciding whether there was “another reason” to revoke the visa cancellation decision pursuant to section 501CA(4)(b)(ii) of the Act where the plaintiff/applicant remained free to apply for a protection visa under the Act:
(1) the Delegate was required to read, identify, understand and evaluate the plaintiff's representations made in response to the invitation issued to him under s 501CA(3)(b) that raised a potential breach of Australia's international non-refoulement obligations;
(2) Australia's international non-refoulement obligations unenacted in Australia were not a mandatory relevant consideration; and
(3) to the extent Australia's international non-refoulement obligations are given effect in the Migration Act, one available outcome for the Delegate was to defer assessment of whether the plaintiff was owed those non-refoulement obligations on the basis that it was open to the plaintiff to apply for a protection visa under the Migration Act.
At [37] and [39], the plurality said:
‘… For the reasons explained above, the Delegate was not required to determine whether the plaintiff was owed non-refoulement obligations (by conducting an assessment of the merits of the plaintiff’s claim) in the same manner, or to the same extent as would be called for by a direct application of the international instruments to which Australia is a party or by reference to the domestic implementation of those obligations.
…
Where the cancelled visa is not a protection visa and a decision‑maker defers assessment of whether non‑refoulement obligations are owed to permit a former visa holder to avail themselves of the protection visa procedures provided for in the Migration Act, it nevertheless may be necessary for the decision‑maker to take account of the alleged facts underpinning that claim where those facts are relied upon by a former visa holder in support of there being "another reason" why the Cancellation Decision should be revoked.’
The High Court considered section 501(CA)(4)(b)(ii) in the context of Direction 65 which has been revoked but its consideration applies to a decision made under that provision when Direction 90 applies.[6]
[6] SGTX and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2536.
It is not open to defer considering this matter because the Applicant has applied for a protection visa and the application was refused. The decision-maker assessed the Applicant’s claim but found that he was not a person in respect of whom Australia has protection obligations under the Act. Section 48A(1)(a) of the Act bars a further application being made.
The Respondent submitted that I should come to the same conclusion as the decision-maker who assessed the protection visa application.
The Applicant made claims for protection in relation to his protection visa on several occasions. They were repetitive. I have incorporated evidence that he gave in these proceedings. In summary, the claims that arise on the evidence are:
·He is almost 20 years old.
·He has no relationship with his parents. He has seen his mother once.
·He was raised by his maternal grandmother who abandoned him in Australia and will not assist him if he returns to Tonga because she is too old and sick and disappointed with the Applicant’s behaviour in Australia. No-one else will assist him.
·The Applicant made various claims of harm he had suffered and would suffer from his uncle who lived next to his grandmother’s house. He told the Tribunal that his uncle has died. I do not detail those claims further as they no longer exist.
·The police in Tonga will not protect him. The authorities in Tonga will not protect him.
·The uncle’s wife also treated the Applicant badly, including hitting a plate of food out of his hands and yelling at him to get out.
·He had to try to get food from the neighbours or the bush.
·He was punished and mistreated at school in various ways he described.
·He was falsely accused of sexual assault in Tonga.
·He faces a real risk of significant harm from the family of his accuser in Tonga.
·He faces a real risk of significant harm as a deportee to Tonga.
·The authorities will not protect the Applicant as deportee who will suffer social stigma and discrimination. After living in Australia for five years, it will be apparent to members of the community that his dress, speech and mannerisms are not typically Tongan.
·He is unable to live independently. His personal circumstances make it unreasonable for him to relocate to other parts of Tonga to avoid family violence.
On 8 February 2021, the Department invited the Applicant to respond to adverse information contained in the Marist 180 Care plan, which was attached to the letter. The Applicant had said that he would rather stay in Australia, but it would be ‘okay’ if he had to return. He has lots of family over there and lots of options where he could stay permanently as well as employment prospects with family. Tongan staff were attempting to build a relationship with his maternal family in Tonga, in order to settle him over there if he had to return.
The Applicant responded that he had experienced hard times in Australia, including in his group home and at school. He felt unwanted and unfairly treated, and tried to imagine having a place where he was able to live but knows that he cannot go there. He did not have a genuine intention of wanting to go to Tonga. He repeated his fears of returning to Tonga.
I accept the Applicant’s claim to have suffered harm from his uncle and his wife. His uncle has died. His aunt is still alive.
I accept that his grandmother has basically disowned him after, I infer, bringing him to Australia for a better life as she was becoming less capable of looking after him or protecting him from his uncle, and his conduct potentially leading to that opportunity being lost.
The claim about being falsely accused of sexual assault was raised late and is unsupported by any detail. I give that claim no weight.
If this visa were refused, it is likely that the Applicant would be deported to Tonga. He could return voluntarily if he wished to avoid deportation.
Based on the Applicant’s criminal record, the decision-maker raised the issue whether there was a real chance that he would be retried for the crimes he had committed in Australia, that is double jeopardy.
Clause 12 of the Constitution of Tonga prohibits double jeopardy. The Department’s Country of Origin Information Section found no information suggesting that the government does not respect that constitutional right or that a criminal deportee to Tonga has been subject to retrial contrary to that principle. It is unnecessary to consider this claim further.
Following the reasoning of the decision-maker, I am satisfied that the Applicant fears persecution in Tonga as a member of the particular social groups ‘survivors of child domestic abuse’ and ‘deportees from Australia’ pursuant to section 5J(1)(a) of the Act.
I am not satisfied that the feared persecution that the Applicant claims he would suffer as a deportee is serious harm as required under section 5J(4((b) and section 5J(5) of the Act. The country information referred to in the decision does not support his claims. He has been away from Tonga for a relatively short period; Tongan is his first language. He required an interpreter at the hearing. I am not satisfied that he will be identifiable as a deportee. It is unnecessary to consider this claim further.
There is some force in the Applicant’s refutation of the statement that he has support in Tonga. The comment was made more than two years ago. It may have been wishful thinking. If he had had such support when he was in Tonga, it is unlikely that he, a vulnerable child, would have suffered violence at the hands of his uncle and his aunt.
His abusive uncle has died and is no longer a source of harm. The Applicant’s aunt may be, but her husband’s death may have reduced or removed her motivation to harm the Applicant. The Applicant is now an adult and can provide for and defend himself, as his criminal record shows.
I am not satisfied that he would suffer serious harm as required under the Act. It is unnecessary to consider this claim further.
I am not satisfied that there is a real chance of persecution for one or more of the reasons set out in section 5J(1)(a) in the receiving country.
I am not satisfied that the Applicant meets the criteria in section 5H(1) of the Act. He is not a refugee and is not a person in respect of whom Australia owes protection obligations pursuant to section 36(2)(a) of the Act.
The decision-maker also considered the complementary protection pursuant to section 36(2)(aa) of the Act. Based on my consideration of the Applicant’s claims and circumstances set out above, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Tonga, there is a real risk that the Applicant will suffer significant harm as set out in subsection 36(2A) of the Act in Tonga for any of the reasons he claimed. I am not satisfied that the Applicant is a person in respect of whom Australia has protection obligations pursuant to section 36(2)(aa) of the Act.
I am not satisfied that Australia owes the Applicant international non-refoulement obligations.
Extent of impediments if removed
Direction 90, paragraph 9.2, requires a decision-maker to consider the extent of impediments that may be faced if the person is 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, and sets out matters relevant to that consideration.
The Applicant would face no cultural or linguistic barriers should he be returned. He is capable of working. Any mental health issue he may have does not prevent him from working.
If he returns to Tonga, I am not satisfied that he will have support from his grandmother or his mother who abandoned him at birth. He may have other relatives in Tonga, but I am not satisfied that he has any relationship with any of them or that he will be supported by any of them. They did not support him when he was a vulnerable child. It seems less likely that they would support him as an adult.
The Applicant has struggled to fit in to Australia. He has made admirable progress since his last serious offending in December 2020, in part, I infer, because he has had the support of his uncle and his family, with whom he has lived since about March 2021 except for a few months at the end of 2021 and the beginning of 2022. His relationship with his uncle has improved remarkably since his repeated absconding in 2018 as outlined earlier, which reflects the generally positive change in his attitude.
The Applicant has been employed from about March 2021 until he was told by his lawyers that he could not work.
To remove the Applicant from his present stable environment and the support of his uncle to return to Tonga where he will have to try to re-establish himself, would be very detrimental to him. His present ability to manage his emotions is highly likely to be seriously diminished if not destroyed. Consequently, he may reoffend and be subject to the Tongan penal system. He may resume using alcohol and cannabis. I am not satisfied that he would have the capacity to establish himself and maintain basic living standards. I am not satisfied that he would have the ability to seek and/or obtain assistance from any providers referred to in the country information mentioned in the protection visa decision. He has not been able seek appropriate supports in Australia while he has been managing his emotions.
This consideration weighs overwhelmingly in favour of not refusing the visa application.
Links to the Australian community
The consideration links to the Australian community has two limbs, however only the first is relevant.[7]
i) strength, nature, and duration of ties to Australia.
[7] Direction 90, paragraph 9.4.
The applicant has spent nearly six years in Australia. He arrived at the age of 14 and is now about to turn 20. After an uneventful year in 2017, the Applicant’s life went downhill once his grandmother returned to Tonga. Over the next three years, he was homeless, committed the criminal offences set out earlier in this decision, and spent about two and a half years in youth care homes. Since April 2021 he has been living with his uncle and his family, except for a few months at the end of 2021 and the beginning of 2022. He has not offended in that time, apart from one minor drug possession offence. His relationship with his uncle is now strong, sustaining, and necessary for the Applicant’s well-being and progress.
The Applicant was working in construction for about 18 months from March 2021.
This consideration weighs heavily in favour of not refusing the visa application.
Conclusion
The primary considerations ‘protection of the Australian community’ and the ‘expectations of the Australian community’ weigh in favour of refusing the applicant’s visa application.
I give no weight to the ‘other’ consideration ‘international non-refoulement obligations’.
The primary consideration ‘best interests of minor children’ and other considerations ‘extent of impediments if removed’ and ‘links to the Australian community’, weigh very heavily against refusing the visa application.
The discretion to refuse the Applicant’s visa application should not be exercised.
Decision
The reviewable decision to refuse the Applicant’s application for a Child (Residence) (Class BT) visa is set aside and in substitution, it is decided not to exercise the discretion to refuse the application under section 501(1) of the Act.
I certify that the preceding 145 (one hundred and forty-four) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly
..................................[SGD]..................................
Associate
Dated: 21 October 2022
Date(s) of hearing: 10, 11 October 2022 Date final submissions received: 18 October 2022 Applicant: In person Counsel for the Respondent: Mr A Taverniti Solicitors for the Respondent: Ms A Luppino
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