Craig and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 3006
•18 August 2020
Craig and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3006 (18 August 2020)
Administrative Appeals Tribunal
ReviewNumber: 2020/3368
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2020/3368
GENERAL DIVISION )
Re: Raymond Craig
ApplicantAnd: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RespondentDIRECTION
TRIBUNAL: Member S Burford
DATE OF CORRIGENDUM: 10 September 2020
PLACE: Perth
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to alter the text of the decision in this application to the following:
- Paragraphs [18] and [19], under the heading ‘Migration Act’, of the reasons for decision be amended to:
18. Section 501(3A) of the Migration Act provides that:
(3A)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
(ii)paragraph (6)(e) (sexually based offences involving a child); 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 a Territory.
19. Section 501(6) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7));
….
(Original emphasis.)
- Between paragraphs [19] and [20], the following two paragraphs be added:
20.A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:
(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;
….
(Original emphasis.)
21. Section 501CA of the Migration Act further provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)a written notice that sets out the original decision; and
(ii)particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
(Original emphasis.)
- Due to the addition of new paragraphs [20] and [21], all paragraph numbers following the two additional paragraphs be amended sequentially.
...................................................................
Member
ReviewNumber: 2020/3368
Division: GENERAL DIVISION
File Number: 2020/3368
Re:Raymond Craig
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member S Burford
Date:18 August 2020
Place:Perth
The decision of a delegate of the Respondent, dated 25 May 2020, not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (temporary) visa under s 501CA(4) of the Act is affirmed.
...............[sgd]....................................
Member S Burford
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – whether the Applicant passes the character test – substantial criminal record – drug related offences – violence offences – driving offences – breach of court orders – whether the Tribunal can go behind or impugn a conviction – Applicant does not pass the character test – whether there is another reasons why the Cancellation Decision should be revoked - Direction No. 79 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties – Applicant arrived in Australia as a three year old – impact on victims – extent of impediments if removed to New Zealand – impact of COVID-19 pandemic - Tribunal not satisfied there is another reason why the decision to cancel that Applicant’s visa should be revoked – reviewable decision affirmedLEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 2AMigration Act 1958 (Cth) ss 198, 499(1), 499(2A), 501, 501(1), 501(6), 501(7), 501(3A), 500(1)(ba), 501CA(4), 501CA(4)(b)(i).
CASES
Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CZCV and Minister for Home Affairs [2019] AATA 91
FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294
FYBR v Minister for Home Affairs [2019] FCA 500
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
FYBR v Minister for Home Affairs v Minister for Home Affairs [2019] FCAFC 185
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313
MBJY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1161
Nigro v Secretary to the Department of Justice (2013) 41 VR 359
Pavey and Minister for Home Affairs [2019] AATA 4198
QGMJ and Minister for Immigration and Border Protection [2017] AATA 1537
QSBL and Minister for Home Affairs [2018] AATA 2074
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Robinson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 370
RQRP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 437
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
VKTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 649
WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117
WSML and Minister for Home Affairs [2019] AATA 41
XFKR and Minister for Immigration and Border Protection [2017] AATA 2385
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466ZTGP and Minister for Home Affairs [2018] AATA 3518
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 65: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (22 December 2014)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s 501 And Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018)
REASONS FOR DECISION
Member S Burford
18 August 2020
THE APPLICATION
This is an application for review of a decision made by a delegate of the Respondent
(the Delegate) dated 25 May 2020 to not revoke the mandatory cancellation of the Applicant's Special Category (Class TY) (subclass 444) visa (the visa) pursuant to subsection 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act). This is the Reviewable Decision that is currently before the Administrative Appeals Tribunal (the Tribunal).BACKGROUND
The Applicant is a 35 year old citizen of New Zealand. He arrived in Australia with his parents and sister, on 23 September 1988, when he was three years old.[1] He was first granted a Class TY Subclass 444 Special Category (Temporary) visa in 2000.
[1] R2, G4, page 39.
The Applicant has two teenage children from two prior relationships. The Applicant’s children are both Australian citizens.
On 11 September 2019 the Applicant was convicted in the District Court of Western Australia for the offence of possession of methylamphetamine with intent to sell or supply and was sentenced to two years’ imprisonment. He was convicted of a number of other offences on that date including possession of stolen or unlawfully obtained property, stealing a motor vehicle and breaching a suspended imprisonment order. According to the Judge’s Sentencing remarks, his total effective sentence for all of these offences was three years and four months’ imprisonment.[2] The Applicant’s criminal history indicates that he has been convicted of approximately 70 offences since 2004 including violent offences, property offences, prohibited substance offences and a large number of traffic offences.[3] He commenced offending when he was 19 years of age and has served several terms of imprisonment.
[2] R2, G6, page 66.
[3] R2, G3, pages 34-37.
As a result of his conviction on the possession with intent to sell or supply offence, the Applicant’s visa was mandatorily cancelled on 31 October 2019 by a delegate of the Minister under s 501(3A) of the Migration Act (the Cancellation Decision). The basis for the cancellation was that the Applicant did not pass the character test due to having a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months and was 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 a Territory.
The Applicant was advised that he could make representations to seek revocation of the Cancellation Decision.[4] Upon being notified of that decision the Applicant requested revocation of the mandatory cancellation of the visa and made representations regarding why the decision should be revoked.[5]
[4] R2, G5, pages 40-44.
[5] R2, G10, pages 85-88; G11-G27.
On 6 May 2020, a Delegate of the Respondent wrote to the Applicant inviting him to comment on further information received.[6] According to the Reviewable Decision, the Applicant provided a response on 13 May 2020 which was in the form of a submission addressed to the Prisoner’s Review Board and dated 7 January 2020.[7]
[6] R2, G28, pages 169-171; G3, G7; G8; G9.
[7] R2, G29, pages 172-182 see also G2, page 29.
On 25 May 2020 the Delegate of the Respondent decided not to revoke the cancellation of the Applicant’s visa.[8] The Applicant contended, and the Respondent agreed, that he was notified of the decision on 26 May 2020 notwithstanding he indicated in the application to the Tribunal that he was notified one day earlier. The Tribunal finds on the evidence that the Applicant was notified of the decision on 26 May 2020.[9] The parties agreed before the Tribunal that this was the correct date of notification. The Tribunal finds on the evidence that the Applicant was notified of the Reviewable Decision on 26 May 2020.
[8] R2, G2, pages 11-27
[9] R1, page 2, para 9; R2, G1, page 7.
On 3 June 2020 the Applicant applied to the Tribunal for review of the decision not to revoke the cancellation of the Applicant’s visa.
The application for review made on 3 June 2020, was made in accordance with
s 500(1)(ba) of the Migration Act, which allows applications to be made to the Administrative Appeals Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) of the Migration Act not to revoke a decision to cancel a visa. The Tribunal is satisfied that it has the jurisdiction to review the decision.THE ISSUE
The issue for determination is whether the Tribunal should exercise the power in s 501CA(4) of the Act to revoke the mandatory cancellation of the visa. This will require determination of:
whether the Tribunal is satisfied that the Applicant passes the character test (as defined by s 501 of the Migration Act); or
whether there is a ‘another reason’ why the mandatory Cancellation Decision should be revoked.
THE HEARING
The hearing was held on 30 July 2020. The Applicant was represented by Mr David Blades of Chisholm Law. The Respondent was represented by Ms Charlotte Saunders of Minter Ellison. Mr Blades appeared in person. Ms Saunders appeared by video link from Sydney. The Applicant appeared via video link from Wooraloo Prison Farm.
The hearing was held during the COVID-19 pandemic and the Tribunal exercised its discretion to hold the hearing by means of electronic communication. The Tribunal determined it was reasonable to hold a hearing in part by electronic communications, having regard to the nature of this matter and the individual circumstances of the Applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the necessity for the Tribunal to make a decision on the application within the statutory timeframe. The Tribunal took steps throughout the hearing process to ensure the proceedings could continue to be conducted fairly to the parties consistent with the Tribunal’s obligations and objectives under the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).[10] The Tribunal is satisfied that the parties were given a fair opportunity to give evidence and present arguments.
[10] Administrative Appeals Tribunal 1975 (Cth) s 2A.
At the hearing, the Applicant made submissions, gave evidence and was
cross-examined. The Applicant also called the following witnesses to give evidence in support of his application:·Sarah Jane Swap, the Applicant’s former partner;
·Rebecca Marie Craig, the Applicant’s sister; and
·Ashley Ale, the Applicant’s former partner.
Ms Craig gave evidence in person. Ms Swap and Ms Ale gave evidence via telephone. The Applicant’s mother attended the hearing but was not called to give evidence.
The Applicant provided statements, reports or letters from the following additional witnesses who he indicated were also available to give evidence. The Respondent agreed to this material being admitted into evidence at the hearing but did not seek to cross examine the witnesses. Accordingly, these witnesses were not called but the Tribunal has had regard to their statements which were referred to in submissions from the Applicant and Respondent:
·Blake Swap, the Applicant’s oldest son;[11]
·Heath Phoenix Craig, the Applicant’s younger son;[12]
·Dr Phil Watts, Adjunct Associate Professor in Clinical Psychology;[13]
·Dianne Johnson, the Applicant’s mother;[14]
·Stuart James Craig, the Applicant’s father;[15]
·Marli Heke, Clinical Services Coordinator, Goldfields Rehabilitation Services Inc;[16]
·James Sharples, friend and work colleague of the Applicant;[17]
·Ann Thompson, ReSet Case Worker;[18]
·David Matthews, friend and work colleague of the Applicant;[19] and
·Jason Ellis, friend and former employer of the Applicant.[20]
[11] A14.
[12] A13.
[13] A3.
[14] A9.
[15] A12.
[16] A4.
[17] A15.
[18] A11.
[19] A6.
[20] A7.
The Tribunal admitted the following documents into evidence:
·Exhibit A1 - Applicant’s Statement of Facts, Issues and Contentions;
·Exhibit A2 - Applicant’s Statement dated 29 June 2020;
·Exhibit A3 - Dr Watts, Independent Psychological Assessment dated 16 July 2020;
·Exhibit A4 - Letter from Marli Heke, Goldfields Rehabilitation Services Inc dated 8 June 2020;
·Exhibit A5 - Receipt for Request to Enter The Active Parenting Program;
·Exhibit A6 - Letter from David Matthews dated 6 July 2020;
·Exhibit A7 - Letter from Jason Ellis dated 3 July 2020;
·Exhibit A8 - Letter from Rebecca Craig dated 3 July 2020;
·Exhibit A9 - Letter from Dianne Johnson dated 1 July 2020;
·Exhibit A10 - Letter from Sarah Swap dated 29 June 2020;
·Exhibit A11 - Letter from Anne Thompson, Reset Case Worker dated 30 June 2020;
·Exhibit A12 - Letter from Stuart James Craig dated 18 June 2020;
·Exhibit A13 - Undated Letter from Heath Phoenix Craig;
·Exhibit A14 - Undated Letter from Blake Swap;
·Exhibit A15 - Undated Letter from James Sharples;
·Exhibit A16 - Applicant’s Supplementary Documents;
·Exhibit A17 - Applicant’s Witness List;
·Exhibit R1 - Respondent’s Statement of Facts, Issues and Contentions;
·Exhibit R2 - G Documents; and
·Exhibit R3 - Respondent’s Supplementary Documents.
LEGISLATIVE FRAMEWORK
Migration Act
Section 501(1) of the Migration Act provides:
(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: is defined by subsection (6).
Section 501(6) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by
subsection (7)); or……
(d)in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia; or …
Direction No 79
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
Further, s 499(2A) of the Migration Act states that ‘[a] person or body must comply with a direction under subsection (1).’
On 20 December 2018, the then Minister for Immigration, Citizenship and Multicultural Affairs made a direction under s 499 of the Migration Act, being Direction No 79.
Paragraph 6.1 of Direction No 79 sets out the objectives of the Migration Act, with
para 6.1(3) being relevant to the Reviewable Decision currently before the Tribunal:Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen 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 a Territory. A
non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.Paragraph 6.2 of Direction No 79 provides general guidance as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(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 501CA. 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 79 sets out principles which must be taken into account by persons making decisions under s 501CA(4), including the Tribunal:
(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 women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Informed by the principles set out in para 6.3 of Direction No 79, the Tribunal must take into account the primary considerations in Part C of Direction No 79, with regard to the specific circumstances of the case.[21] Specifically, para 13(2) of Direction No 79 provides:
In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian community.
[21] Para 13(1) of Direction No 79.
Paragraph 14(1) of Part C of Direction No 79 lists the other considerations as follows:
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.
Paragraph 7(1)(b) of Direction No 79 outlines how a decision-maker is to exercise 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.
Further guidance as to how a decision-maker is to apply the considerations in Direction No 79 can be found in para 8 which provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that noncitizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(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 a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
Part C of Direction No 79 sets out considerations that are relevant in exercising the discretion in s 501CA(4) of the Migration Act.
CONSIDERATION
The Applicant’s criminal history
The Applicant’s offending history is set out in the National Criminal Check ‘Nationally Coordinated Criminal History Check Results Report’ dated 29 October 2019 (National Criminal Check).[22]
[22] R2, G3.
The Applicant’s offending history is summarised in the following table which is drawn from the National Criminal Check.[23] Offences dates are drawn from prosecution notices and records of court proceedings produced under summons from the relevant courts as well as statements of material facts produced under summons by the WA Commissioner of Police.
[23] The Tribunal notes several small discrepancies between the National Criminal Check and material produced on summons were detected. These have been noted where applicable. However, the Tribunal did not regard any of the discrepancies as significant to the review.
Court
Court Date
Offence
Offence Date(s)
Court Result
Armadale Court of Petty Sessions
17/12/2004
Drive contrary to Learner’s Permit
11/11/2004
$250 fine[24]; disqualified from holding or obtaining a motor driver’s licence for 3 months
Armadale Court of Petty Sessions
20/01/2005
Drive Contrary to Learner’s Permit
5/11/2004
$100 fine
Midland Court of Petty Sessions
25/02/2005
Aggravated burglary and commit offence in public place
15/12/2004
12 months Community Based Order (CBO); 120 hours community work; $100 fine[25]
Midland Court of Petty Sessions
25/02/2005
On premises without lawful excuse
15/12/2004
$300 fine
Midland Court of Petty Sessions
25/02/2005
Breach of bail undertaking
21/01/2005
$100 fine
Midland Court of Petty Sessions
25/02/2005
Fail to report traffic accident (property owner present)
15/12/2004
$200 fine; disqualified from holding or obtaining a motor driver’s licence for 3 months (mandatory), concurrent
Midland Court of Petty Sessions
25/02/2005
Failing to stop after accident
15/12/2004
$200 fine; disqualified from holding or obtaining a motor driver’s licence for 3 months (mandatory), concurrent
Armadale Magistrates Court
24/05/2005
Excess 0.05%
8/05/2005
$200 fine; disqualified from holding or obtaining a motor driver’s licence for 3 months (mandatory), concurrent
Armadale Magistrates Court
24/05/2005
No motor drivers licence - suspension
8/05/2005
$400 fine; disqualified from holding or obtaining a motor driver’s licence for 9 months cumulative
Armadale Magistrates Court
29/07/2005
Breach of CBO of 25/02/2005
Not available
6 months and 1 day imprisonment concurrent, each charge sentence suspended for 12 months.
Armadale Magistrates Court
29/07/2005
Failure to stop when called upon
15/05/2005
$200 fine; disqualified from holding or obtaining a motor driver’s licence for 3 months (mandatory), concurrent
Armadale Magistrates Court
29/07/2005
reckless driving
15/05/2005
$600 fine, disqualified from holding or obtaining a motor driver’s licence for 9 months Concurrent (Hoon Law Legislation)
Armadale Magistrates Court
29/07/2005
No motor driver’s licence – under fines suspension
15/05/2005
$400 fine, disqualified from holding or obtaining a motor driver’s licence for 6 months cumulative
Armadale Magistrates Court
27/10/2006
No motor driver’s licence – under suspension
21/09/2006
$1000 fine, disqualified from holding or obtaining a motor driver’s licence for 9 months cumulative
Narrogin Magistrates Court
07/06/2007
Exceed the speed limit
Not available
$150 fine
Narrogin Magistrates Court
07/06/2007
No motor driver’s licence – under suspension
Not available
$2000 fine; disqualified from holding or obtaining a motor driver’s licence for 9 months cumulative
Perth Magistrates Court
04/10/2007
No driver’s Licence (suspended)
29/11/2006
$1200 fine; disqualified from holding or obtaining a motor driver’s licence for 9 months cumulative
Perth Magistrates Court
04/10/2007
Careless driving
26/11/2006
$300 fine, motor driver’s licence disqualified for 3 months mandatory and concurrent
Perth Magistrates Court
20/06/2008
Exceed 0.08g alcohol per 100ml of blood
12/04/2008
$600 fine, motor driver’s licence disqualified for 5 months concurrent
Perth Magistrates Court
20/06/2008
No driver’s licence (suspended)
12/04/2008
$2000 fine, motor driver’s licence disqualified 9 months cumulative
Armadale Magistrates Court
19/09/2008
Obstructing public officers
18/09/2008
$900 fine
Armadale Magistrates Court
19/09/2008
Exceed 0.08g alcohol per 100ml of blood
28/03/2008
$1200 fine; motor driver’s licence cancelled: 12 months.
Armadale Magistrates Court
19/09/2008
No driver’s licence (suspended)
28/03/2008
3 months imprisonment; motor driver’s licence disqualified for 9 months cumulative
Perth Magistrates Court
11/02/2009
False name (driver)
26/12/2008
$250 fine; motor driver’s licence disqualified for 3 months, mandatory and concurrent
Perth Magistrates Court
11/02/2009
Wilfully mislead police
26/12/2008
$250 fine; motor driver’s licence disqualified for 3 months, mandatory and concurrent
Armadale Magistrates Court
15/09/2009
Exceed speed limit in a shared zone
01/11/2008
$150 fine
Armadale Magistrates Court
15/09/2009
No authority to drive – suspended
01/11/2008
3 months and 1 day imprisonment; motor driver’s licence disqualified for 3 months, mandatory and concurrent
Armadale Magistrates Court
15/09/2009
No authority to drive – suspended
26/12/2008
3 months imprisonment; motor driver’s licence disqualified for 3 months, mandatory and concurrent
Armadale Magistrates Court
15/09/2009
No authority to drive – suspended
17/05/2009
3 months imprisonment; motor driver’s licence disqualified for 3 months, mandatory and concurrent
Armadale Magistrates Court
09/10/2009
Unlawfully assaulted with circumstances of aggravation (Common Assault – Agg)
12/07/2009
$1000 fine
Armadale Magistrates Court
18/03/2011
No authority to drive – suspended
18/03/2011
8 months suspended imprisonment order, cumulatively suspended 24 months from 18/03/2011; motor driver’s licence disqualified for 3 months, mandatory and concurrent
Armadale Magistrates Court
18/03/2011
Unlicensed vehicle (not owner)
18/03/2011
$150 fine
Armadale Magistrates Court
18/03/2011
Assaulted person in circumstances of aggravation or racial aggravation (aggravated assault occasioning bodily harm)
17/07/2010
8 months suspended imprisonment order; cumulatively suspended 24 months from 18/03/2011; $150 fine
Gladstone Magistrates Court
30/09/2013
Commit public nuisance
28/09/2013
[On all charges] No conviction recorded; $550 fine
Assault or obstruct a police officer
Assault or obstruct a police officer
Fremantle Magistrates Court
13/05/2014
Aggravated assault occasioning bodily harm
03/01/2014
8 month suspended imprisonment order; suspended 18 months from 13/05/2014
Newcastle Local Court
18/06/2015
Drive with low range CPA – 1st offence
Not available
$600 fine; motor driver’s licence suspended for 3 months
Perth Magistrates Court
17/07/2015
Used an unlicensed vehicle
05/06/2015
$300 fine
Perth Magistrates Court
17/07/2015
Drove or permitted vehicle with a forged, replica or false plate to be driven on a road
05/06/2015
$400 fine
Midland Magistrates Court
04/09/2015
Driver obstruct the path of another driver
19/07/2015
$100 fine
Midland Magistrates Court
04/09/2015
No authority to drive – cancelled
19/07/2015
$1000 fine; motor driver’s licence disqualified for 9 months, cumulative
Midland Magistrates Court
04/09/2015
Possessed drug paraphernalia in or on which there was a prohibited drug of plant
19/07/2015
$300 fine
Perth Magistrates Court
27/05/2016
Breach of Suspended Imprisonment Order of 13/05/2014
06/03/2016
Motor driver’s licence disqualified: 9 months cumulative from 27/05/2015; cumulative, imprisonment for 3 months concurrent from 27/05/2016
Perth Magistrates Court
27/05/2016
Used a mobile phone whilst driving a vehicle
28/10/2015
$400 fine
Perth Magistrates Court
27/05/2016
Provided false or misleading personal details
06/04/2016
$300 fine
Perth Magistrates Court
27/05/2016
No authority to drive – cancelled
06/03/2016
Motor driver’s licence disqualified for 9 months cumulative from 27/05/2016; 6 months and 1 day imprisonment concurrent from 27/05/2016
Perth Magistrates Court
27/05/2016
No authority to drive – cancelled
06/04/2016
Motor driver’s licence disqualified for 9 months cumulative; 6 months and 1 day imprisonment concurrent from 27/05/2016
Perth Magistrates Court
27/05/2016
No authority to drive – suspended
28/10/2015
Motor driver’s licence disqualified for 9 months cumulative; 6 months and 1 day imprisonment concurrent from 27/05/2016
Perth Magistrates Court
27/05/2016
Drove or permitted vehicle with false plate to be driven
28/10/2015
$300 fine
Perth Magistrates Court
27/05/2016
Used an unlicensed vehicle
28/10/2015
$200 fine
Armadale Magistrates Court
24/06/2016
No authority to drive - suspended
21/04/2016
Motor driver’s licence disqualified for 9 months concurrent from 24/06/2016
Midland Magistrates Court
22/09/2017
No authority to drive – cancelled
06/06/2017
7 months imprisonment cumulative; motor driver’s licence disqualified for 9 months from 22/09/2017
Midland Magistrates Court
15/05/2018
Possession of a prohibited drug (methylamphetamine)
28/03/2018
$500 fine
Perth District Court of Western Australia
11/09/2019
Breach of suspended imprisonment order
NA
No order made on breach
Perth District Court of Western Australia
11/09/2019
Steal motor vehicle
09/04/2018
9 months imprisonment cumulative from 18/07/2018
Perth District Court of Western Australia
11/09/2019
Possession of stolen or unlawfully obtained property
20/05/2018[26]
9 months imprisonment cumulative from 18/07/2018
Perth District Court of Western Australia
11/09/2019
Possession of a prohibited drug with intent to sell or supply (methylamphetamine)
08/10/2017
2 years imprisonment cumulative from 18/07/2018
Perth District Court of Western Australia
11/09/2019
Possession of stolen or unlawfully obtained property
08/10/2017[27]
1 month imprisonment concurrent from 18/07/2018
Perth Magistrates Court
22/10/2019
Provide false or misleading personal details
09/06/2018
$300 fine
Perth Magistrates Court
22/10/2019
Make U turn at traffic control signal
09/06/2018
$100 fine
Perth Magistrates Court
22/10/2019
No authority to drive – suspended
09/06/2018
6 months and 1 day imprisonment concurrent from 22/10/2019; motor driver’s licence disqualified for 9 months cumulative
Perth Magistrates Court
22/10/2019
No authority to drive – cancelled
07/06/2017
Motor driver’s licence disqualified for 9 months cumulative; 6 months and 1 day imprisonment concurrent from 22/10/2019
Perth Magistrates Court
22/10/2019
No authority to drive – cancelled
24/04/2018
Motor driver’s licence disqualified for 9 months cumulative; 6 months and 1 day imprisonment concurrent from 22/10/2019
Perth Magistrates Court
22/10/2019
Driver failed to comply with directions to stop
09/06/2018
6 months and 1 day imprisonment concurrent from 22/10/2019; motor driver’s licence disqualified for 2 years concurrent
Perth Magistrates Court
22/10/2019
Careless driving
07/06/2017
$200 fine; motor driver’s licence disqualified for 3 months
Perth Magistrates Court
22/10/2019
No authority to drive – suspended
08/10/2017
Motor driver’s licence disqualified for 9 months cumulative; 6 month and 1 day imprisonment concurrent from 22/10/2019
Perth Magistrates Court
22/10/2019
Drove a vehicle contrary to a defect notice
09/06/2018
$300 fine
Perth Magistrates Court
22/10/2019
Possess a prohibited drug (methylamphetamine)
29/05/2018
$300 fine
Perth Magistrates Court
22/10/2019
Driving with prescribed illicit drug
09/06/2018
$500 fine; motor driver’s licence disqualified for 6 months concurrent
Perth Magistrates Court
22/10/2019
Possess a prohibited drug (methylamphetamine)
09/06/2018
6 months and 1 day imprisonment concurrent from 22/10/2019
Perth Magistrates Court
22/10/2019
Possess drug paraphernalia in or on which there was a prohibited drug or plant
09/06/2018
6 months and 1 day imprisonment concurrent from 22/10/2019
Perth Magistrates Court
22/10/2019
Obstructing public officers
09/06/2018
6 months and 1 day imprisonment concurrent from 22/10/2019
Perth Magistrates Court
22/10/2019
Possession of stolen or unlawfully obtained property
20/05/2018
6 months and 1 day imprisonment concurrent from 22/10/2019
Perth Magistrates Court
22/10/2019
Used an unlicensed vehicle
Used an unlicensed vehicle
$93.80 fine
[24] R3, page 2 discrepancy - $150 fine.
[25] R3 page 42 lists a “compensation amount paid to Stephen Geoffrey Farmers” rather than “$100 fine”
[26] R3, page 148.
[27] R3, page 153.
The Applicant’s convictions primarily comprise of violent offending, prohibited drug offences, driving and traffic offences. In summary, the Applicant’s offending history includes the following offences for which the Applicant was convicted between 2004 and 2019:
·violence offences involving a domestic partner including common assault and aggravated assault occasioning bodily harm;
·property offences including possession of stolen property, stealing a motor vehicle and aggravated burglary;
·drug offences including possession with intent to sell or supply methylamphetamine, possession of methylamphetamine and possession of drug paraphernalia;
·almost 50 traffic offences since 2004 including driving with a prescribed illicit drug, driving under the influence, driving without authority, careless driving, reckless driving, driving without a licence including while suspended, failing to stop after an accident, using an unlicensed vehicle;
·offences against police including wilfully misleading police, obstructing officers and assaulting or obstructing officers; and
·breaches of court orders including breaching suspended prison orders and breaching bail.
Drug related offences
As noted above, the mandatory cancellation of the Applicant’s visa was triggered by his conviction and sentencing for the offence of possession of a prohibited drug with intent to sell or supply (methylamphetamine) for which he was sentenced to two years’ imprisonment.
According to the sentencing judge’s remarks, the offence occurred on 8 October 2017 when police arrested the Applicant for possession of a stolen vehicle after a routine search of his number plates.[28] When the Applicant was searched at the police station, police found a bag containing 10.8 grams of methylamphetamine at a purity of 81%. They also found a notebook with names and monetary amounts consistent with ‘a tick list’ and 100 unused clip seal bags. Messages on the Applicant’s phone relating to the sale of supply of drugs were also found, as were messages relating to the sale or trade of the stolen motor vehicle. The Applicant initially denied the offences, including in relation to the stolen vehicle, but later plead guilty to the offences.
[28] R2 page 61; R3 page 153.
The Applicant has been convicted of other drug related offences commencing in 2015 with a conviction for possessing drug paraphernalia in or on which there was a prohibited drug or plant. His last conviction for drug offences was on 22 October 2019 when the Applicant was convicted of possessing a prohibited drug (methylamphetamine), driving with a prescribed illicit drug and possessing drug paraphernalia.
In total the Applicant has been convicted of six drug related offences, not including driving related offences.
Violence offences
The Applicant has several of convictions for offences involving violence including against former domestic partners.
On 9 October 2009 the applicant was convicted of unlawfully assaulted with circumstances of aggravation (common assault (aggravated)) and fined. According to the Statement of Material Facts, this offence arose from events on 12 July 2009 where the Applicant and his then de facto partner, Ms Ale had an argument and the Applicant kicked Ms Ale ‘to the lower region of her back’. No medical treatment was required.[29] The Applicant plead guilty to the offence.
[29] R2, G8, page 77.
On 18 March 2011 the Applicant was again convicted of unlawfully assaulted with circumstances of aggravation (common assault – aggravated)and sentenced to eight months imprisonment which was suspended for 24 months. According to the Statements of Material Facts, his conviction arose from an offence on 17 July 2010 where the Applicant grabbed Ms Ale by the neck forcing her to the floor. She struggled free and attempted to call police and he put both hands around her neck applying pressure on her oesophagus with his thumbs. He then headbutted Ms Ale causing her nose to bleed. A friend yelled at him to stop and he left the house. The Applicant claimed at interview he was too intoxicated to remember the events but plead guilty to the offence.[30]
[30] R2, G8, page 80.
On 13 May 2014 the Applicant was convicted of aggravated assault occasioning bodily harm and received a sentence of imprisonment for eight months suspended for 18 months. Based on the amended Statement of Facts read at sentencing hearing, [31] this conviction arose from an offence on 3 January 2014 where the Applicant and his then partner, Ms Tua, were in bed having been drinking earlier that day. Her two year old daughter was in the bed with them. The Applicant tried to instigate sexual activity with Ms Tua and was declined. He tried again and was declined at which time he grabbed the victim by the stomach and said, ‘you’re mine. Do as I say’’. She tried to push him away and elbowed him in the head. He became angry and punched and elbowed her to the head. He bit her on the nose and ear. Another person in the house heard the commotion and came and removed the child and the Applicant left. The Applicant pled guilty to this offence but said he acted in self-defence.[32] He maintained that he acted in self-defence before the Tribunal.
[31] R2, G7, page 72.
[32] R2, G7, page 72.
Traffic and driving offences
The Applicant has been convicted of a large number of driving offences including driving without authority, driving while suspended, providing false or misleading personal details, failing to stop when called upon, failing to report an accident, reckless driving, driving under the influence of drugs and alcohol and other traffic related offences. These offences commenced in 2004 and continued until his conviction and imprisonment in 2019.[33] The Applicant acknowledged before the Tribunal that he knowingly and repeatedly drove without a licence but claimed this was necessary due to work and family commitments.[34]
[33] R2, G3, pages 34-37.
[34] Transcript, page 16.
Breach of court orders and offences against police
The Applicant has also been convicted of breaching suspended prison sentences, breaching community-based orders and breaching bail. As noted above, he has also been convicted of obstructing police on several occasions and of providing false or misleading personal details.
He also received a fine for assaulting or obstructing police and committing a public nuisance, however no convictions were recorded for theses offences.
The circumstances and seriousness of the Applicant’s offending is considered further below.
The issues of going behind or impugning the convictions
The Applicant has acknowledged his offending was serious and expressed remorse for his actions. The Tribunal will consider the Applicant’s contrition and attempts at rehabilitation further below in the context of the Applicant’s likelihood of reoffending.
The Statement of Material Facts for the violence offences were put to the Applicant at the hearing by the Respondent. The Respondent invited the Applicant to confirm the content of the statements. With respect to the domestic violence offences, the Applicant maintained that the offences occurred in circumstances of domestic disagreements and that, in general terms, he was defending himself when the offences occurred. In testimony before the Tribunal in describing one of the offences the Applicant stated that ‘it takes two to tango’.[35] The Tribunal notes that the Applicant plead guilty to all three violence offences.
[35] Transcript, page 23.
The Applicant relied on his own account of the events, correspondence from Ms Tua and his father’s statement in support of his account. Ms Ale testified that she regarded herself as being in part to blame for the assaults against her as they had fought during the relationship.
The question of whether and to what degree the Tribunal can investigate the facts underlying the applicant’s convictions is an important one and has been the subject of detailed judicial consideration.[36]
[36] HZCP v Minister for Immigration and Border Protection [2018] FCA 1803; HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649; Minister for Ethnic Affairs v Gungor (1982) 42 ALR 209; Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313; Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234; Degerli v Minister for Immigration and Ethnic Affairs [1981] FCA 250 (23 December 1981); Beckner v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 49; Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155; MBJY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1161.
In HZCP, Bromberg J’s detailed consideration of the authorities,[37] summarised the principles to be applied as follows (at [78]):
(1) Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact that the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.
(2) Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on the person seeking to challenge the facts upon which the conviction is necessarily based.
[37] Noting in particular the principles espoused by the Court of Appeal of the Supreme Court of Victoria in Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155.
His Honour’s judgment was considered and upheld on appeal to the Full Court in HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 where McKerracher J stated [at 77]:
As a matter of policy, it would be highly undesirable if [the] Minister or the Tribunal exercising a decision-making power that is founded on an earlier decision of a criminal court could, in effect, challenge the propriety or correctness of that decision, or reopen findings on which the decision was necessarily based … The adjudgment of guilt, and the determination of the punishment to be imposed as a consequence (including a sentence of imprisonment), fall within the central concept of judicial power. It is inconsistent with this principle at the heart of the separation of powers to suggest that an administrative decision-maker could come to a factual conclusion contrary to that of a court when making an adjudgment and punishment of criminal guilt which is, in turn, the precondition to that administrative decision-maker’s power.
Applying the principles expressed in the authorities and summarised by Bromberg J, and later confirmed by the Full Court on appeal, the Tribunal can consider the entirety of the Applicant’s conduct including the circumstances of the offences. However, with respect to the conviction and sentence upon which the power to cancel the visa is based, the Tribunal cannot go behind the fact of the conviction or sentence or the essential facts on which they are based. With respect to other convictions, there is a ‘‘heavy onus’’ on the Applicant where they seek to challenge the facts upon which those convictions are based.
The Tribunal considers that it is bound by the principles espoused in the authorities and in particular, by the decision of the Full Court of the Federal Court in HZCP.
Accordingly, while the Tribunal has considered the broader question of the degree to which the Applicant is genuinely remorseful and has insight into his offending, in the context of the assessment of risk below, the Tribunal does not accept the Applicant’s claims to have acted in self-defence in any sense which might act as a defence against culpability for those offences. That said, the Tribunal acknowledges that there is evidence that the Applicant’s relationships with Ms Tua and Ms Ale involved instances of verbal and physical fighting. Ms Ale noted that she regarded herself as partly responsible for the violence within her relationship and in part blamed the couple’s use of alcohol for this.
However, it remains that the Applicant was charged with and convicted of violence offences against two former partners. The sentencing remarks (where available) note the seriousness of those offences and do not refer to self-defence as a mitigating factor. In two instances the Court’s consideration of the offences resulted in sentences of imprisonment. While the Tribunal has considered all the circumstances of the offending, including evidence of the volatile nature of the relationships, the Tribunal does not regard that the Applicant discharged the heavy onus of challenging the fact of those convictions, if indeed that was his intention. The Tribunal gives significant weight to the courts’ consideration of the facts of the offences and to the seriousness with which they regarded the offending, reflected in the sentences given to the applicant and the sentencing remarks (where available to the Tribunal).
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Applicant accepted that he does not pass the character test.
The character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’ as defined by s 501(7). Relevant to the Applicant’s case, a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’ (s 501(7)(c) of the Migration Act).
The Applicant has been sentenced to terms of imprisonment in excess of 12 months and, as a result, has a substantial criminal record as defined in s 501(7) of the Act and therefore does not pass the character test under s 501(6)(a). The Tribunal is not satisfied that the Applicant passes the character test (see s 501CA(4)(b)(i) of the Migration Act).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
As the Applicant does not pass the character test, the Tribunal must consider whether there is ‘another reason’ why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
As noted above, the Applicant requested revocation of the decision on 31 October 2019. He made representation in support of that request outlining the reasons he says the Cancellation Decision should be revoked. Additional material was received by the Delegate from the Applicant on 13 May 2020. The Applicant relied on these representations and submissions before the Tribunal. In addition, he made written and oral submissions to the Tribunal.
In summary the Applicant submitted that the Cancellation Decision should be revoked because:
·The Applicant has been living in Australia for more than 30 years, for most of his childhood and his adult life;
·He has made a positive contribution to the Australian community through employment for the vast majority of his adult life;
·The Applicant has two minor children whose best interests would be served by an ongoing, personal relationship with their father which would be placed in jeopardy if he is removed from Australia;
·He has a close relationship with his mother, father and sister, all of whom live in Australia and are permanent residents;
·Given the Applicant’s personal circumstances and the length of time he has lived in Australia, the community would afford him a higher level of tolerance for his criminal conduct;
·The Applicant has actively pursued opportunities for rehabilitation while in prison and has sought treatment for substance abuse and mental health issues. There has been a clear change in the Applicant’s behaviour and his likelihood of reoffending is low;
·The majority of the Applicant’s offending prior to 2019 consisted of traffic offences. The Applicant’s last conviction for a violence offence was in 2014;
·The Applicant has good prospects for employment and a strong prosocial network to support his reintegration into Australian society and to guard against the risk of reoffending; and
·The Applicant has no family in New Zealand and no support network there. The Applicant’s impediments to return are exacerbated due to the COVID-19 pandemic, given restrictions on returning citizens and the fact the Applicant has no established base in that country.
The Respondent submitted, in summary, that:
·The seriousness of the Applicant’s offending and in particular his domestic violence offences towards several partners and the possibility of future harm to the community should he reoffend in a similar way outweighed other considerations in favour of revocation;
·The Applicant’s commitment to rehabilitation and in particular his recovery from substance abuse and mental health issues remain untested in the community. This means he represents an unacceptable risk of reoffending;
·The Applicant’s offending history showed a disregard for the laws of Australia. The fact he had been sentenced to multiple terms of imprisonment reflected the seriousness of his offending;
·The best interests of the Applicant’s children should be given less weight as he has never fulfilled the role of a primary caregiver for either child. Further, his criminal history means that his capacity to be a positive role model in the future should be treated with caution;
·Despite the length of time the Applicant has spent in Australia, he has committed serious, repeat offences which have resulted in terms of imprisonment. In such circumstances the Australian community would expect his visa to remain cancelled.
·Given the lengthy criminal history of the Applicant, the Tribunal should not accept that he has made a positive contribution to the Australian community.
·There are no cultural or language barriers to the Applicant on return to New Zealand. He is likely to maintain the same standard of living as he would in Australia and there is no evidence that he would not be able to access the same services as other New Zealanders. The only COVID-19 restriction the Applicant would face would be 14 day quarantine on arrival in New Zealand; and
·Other considerations including the Applicant’s ties to Australia and the extent of any impediments if removed did not outweigh the primary considerations or favour non-revocation.
PRIMARY CONSIDERATIONS
First primary consideration: Protection of the Australian community
Paragraph 13.1 of Direction No 79 provides that:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle 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. Remaining in Australia is a privilege that Australia confers on noncitizens 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…
(2)Decision-makers should also give consideration to:
a) The nature and seriousness of the non-citizen’s conduct to date;
andb) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paragraph 13.1.1(1) of Direction No 79)
Paragraph 13.1.1(1) of Direction No 79 provides:
(1)In considering the nature and seriousness of the non-citizen’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 offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b) The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c) The principle that crimes committed against vulnerable members of the community (such as 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;
d) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f) The cumulative effect of repeated offending;
g) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
i) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
The Applicant conceded that while some of his convictions are for minor offences, others are considered to be serious.[38]
[38] A1, page 5.
With respect to the Applicant’s offending record, Petrusa DCJ commented:
You have an appalling criminal record in relation to traffic matters. You have no less than 41 prior convictions relating to traffic offences. In addition, you have also have a number of convictions for violence, breach of court orders and associated small number of other offences. You’ve received terms of imprisonment for some of your offending. Your record tells me that you are not a person of prior good character and there is scope for what we call specific deterrence.[39]
[39] R2, G6, page 63.
The seriousness of the offence which gave rise to the mandatory cancellation of the Applicant’s visa was reflected in the comments of the Sentencing Judge, Petrusa DCJ, who stated:
Your offending was serious in and of itself, given that it involves the distribution of drugs in our community. The quantity and quality of the drugs in your possession suggests that you were a user, dealer at the upper lower to mid-range. Further, your drug dealing has been associated with stolen property.
Your offending is further aggravated by the fact you were, at the time, subject of a suspended imprisonment order.
….
The maximum penalties for the offences I am to deal with you for are 25 years’ imprisonment, $100,000 fine, or both for the drug offence, seven years’ imprisonment for the remainder. That doesn’t mean you get those sentences, of course, but they do tell me how seriously the community views those offences.[40]
[40] R2, G6, pages 62-63.
Paragraph 13.1.1(1)(a) of Direction No 79 states that ‘violent and/or sexual crimes are viewed very seriously’. Paragraph 13.1.1(1)(b) states that ‘crimes of a violent nature against women or children are viewed very seriously regardless of the sentence imposed’. As noted above, the Applicant has been convicted twice of common assault – aggravated and once of aggravated assault occasioning bodily harm. Having regard to para 13.1.1(1)(a), these are violent crimes which are viewed very seriously. The victims of these offences were the Applicant’s domestic partners who were women. Having regard to para 13.1.1(1)(b), these were violent crimes against a woman and are to be viewed very seriously, regardless of the sentence imposed.
With respect to the treatment of such offences and the serious nature the aggravated assault occasioning bodily harm in 2014, the Sentencing Judge, Magistrate Hogan, noted that it was ‘a serious assault’[41] and commented that sentence of imprisonment was appropriate in the circumstances given the nature of the offending and the fact that both general and personal deterrence relevant in the Applicant’s circumstances:
General [deterrence], to show others that it’s not acceptable to treat a woman in the way that you treated your partner at the time, and also for you to understand that it’s a serious matter. [42]
[41] R2, G7, page 75.
[42] R2, G7, page 76,
Paragraph 6.3(3) of Direction No 79 is also applicable to the Applicant’s offending, because it states that a non-citizen who has committed a ‘’serious crime’’, including violent crimes against women, should generally expect to forfeit the privilege of staying in Australia.
The Applicant sought to explain the violence offences as incidents which occurred in the context of mutually violent relationships where he was attempting to defend himself and diffuse the situations.[43] As noted above, this was supported in part by Ms Ale who said she took responsibility for instigating arguments. However, the Tribunal notes the Applicant was convicted of offences of violence against a partner on three separate occasions. There is no evidence before the Tribunal that the courts in sentencing the Applicant for those offences accepted the Applicant acting in self-defence. In relation to the relation to the most serious offence in 2014, the Applicant’s claim to self-defence was mentioned in the summary facts put to the sentencing judge however there is no indication in Her Honour’s comments that she accepted self-defence acted as a mitigating factor in relation to the offence. While the Tribunal accepts the offences arose in the context of volatile relationships, the Tribunal does not accept based on the material before it that the Applicant acted in self-defence in committing the assaults against his previous two partners. Further, the Tribunal does not accept the volatility of the relationships lessens the seriousness of the offences.
[43] R2, G29, pages 176-177.
Paragraph 13.1.1(1)(c) of Direction No 79 provides that crimes committed against government representatives or officials due to the position they hold, or in the performance of their duties, are serious. The Applicant has convictions for an offence against a government official in the performance of their duties, specifically obstructing public officers, assault or obstruct public officers and wilfully mislead police. He received a range of penalties for these offences including fines. In respect of one set of offences against police no conviction was recorded. With respect to the obstructing public officers offence for which he was convicted on 22 October 2019 he received a term of imprisonment of 6 month and 1 day.[44] In the Tribunal’s view that is not an insignificant sentence for such an offence. While the Tribunal regards these offences to be at the lower end of seriousness, it recognises that they demonstrate a disrespect for public law enforcement officials which is not condoned or tolerated in our system as it undermines the ability of those officers to perform their public function. Further, the Tribunal regards that they reflect negatively on the general assessment of the seriousness of the Applicant’s offences and conduct as they demonstrate a disregard for the authority of the police and the legal system.
[44] R2, G3, page 35.
The Tribunal notes that some of the individual offences are not of a category of offence that Direction No 79 regards as being viewed very seriously regardless of the sentence imposed. However, paragraph 13.1.1(1)(a) of Direction No 79 does not limit the range of offences that may be considered serious. As can be seen from the above summary of the Applicant’s offending, he has a very large number of traffic related convictions including driving under the influence of drugs or alcohol, driving recklessly, driving unlicensed vehicles, and driving repeatedly without authority. This offending has continued over a 14 year period unabated by fines, driving disqualifications and several sentences of imprisonment.
The seriousness and potential harm caused by driving offences and the cumulative effect of multiple traffic offences and repeated traffic offences are taken very seriously by this Tribunal and the courts.[45] The same has been said of the effect of drug crimes in the community.[46]
[45] See, for example: RQRP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 437 [97]–[98], [106]; WSML and Minister for Home Affairs [2019] AATA 41 [63]–[64]; Robinson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 370 [54]; VKTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 649 [178]–[183].
[46] See, for example: FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294 [206]; Trang and Minister for Home Affairs [2019] AATA 4087 [65]–[67].
That the Applicant’s history of driving offences indicates a disregard for Australia’s laws and is reflected in the sentencing remarks of Magistrate Cicchini as follows[47]:
the point to be made is that you have continually acted in a way where you have disregarded the law in respect to driving and in that regard, in this instance there has been wilful defiance of the law.
In this particular instance, your driving, particularly in October, soon after having been dealt with by the court at Midland, you decided to drive knowing that you should not have been driving. It was a wilful defiance of the court’s order. Then having been picked up, that not being enough, you continued to drive under suspension. So your acts of driving constitute continued offending by you and it’s important that people get the message that they can’t continue to offend.
…. You have just continued to drive in full knowledge that you were breaking the law, and your driving, at least in the first instance on 28 October 2015 involved a degree of planning and subterfuge.
[47] R3, S5, page 126.
With respect to the seriousness of repeat traffic offences, Senior Member Tavoularis in Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561, to which the Respondent referred in submissions,[48]noted the serious nature and adverse consequences of driving offences stating at [43]-[45]:
43.There is, to my mind, nothing to be said in mitigation for serious irresponsibility in the management and control of a motor vehicle.
His offences of drink driving and unlicensed driving clearly point to an incapacity to distinguish right from wrong and to otherwise conform to the rules of Australian society insofar as operation of a motor vehicle on a public road is concerned. The catastrophic potential of losing control of a motor vehicle as a result of being affected by alcohol and/or prohibited substances is the subject of constant campaigns by governments at all levels.44.I have similar concerns about the Applicant’s failure to realise the potential adverse impact arising from unlicensed driving. This Applicant (as is the case with virtually all drivers) knew or ought reasonably to have known the potentially serious adverse consequences of unlicensed driving, or driving an unregistered/uninsured vehicle, for other road-users. Whilst no expertise [sic] in the motor insurance industry, it is common knowledge that there are insurance implications for unlicensed drivers and/or drivers of unregistered/uninsured vehicles who become involved in motor vehicle accidents. Again, for the Applicant to ignore this obvious and serious consequence of his driving conduct demonstrates an incapacity to distinguish right from wrong and to otherwise conform to the insurance/registration regime of the Australian community as it relates to the ownership and operation of a motor vehicle.
(Footnotes omitted.)
[48] R1, page 7, para 35.
The comments of Senior Member Tavoularis above regarding unlicensed driving are applicable to the Applicant’s driving record. The Applicant’s record of repeat driving offences tends to indicate a disregard for legal authority and an inability to distinguish right from wrong, and more particularly an inability to appreciate the adverse consequences of this type of offending which places the safety of members of the public at risk. There are a range of implications and potential risks associated with such offending including insurance implications. It is for these reasons, and for the persistent flouting of traffic laws across an extended period that the Tribunal finds the totality and nature of the Applicant’s driving offences should also be viewed as serious.
Applying para 13.1.1(1)(d) of Direction No. 79, the Applicant has received several sentences of imprisonment with the most serious being an effective term of received a term of three years’ and four months’ imprisonment imposed on 11 September 2019 for the offences of possession of methylamphetamine with intent to sell or supply, (for which a sentence of 2 years imprisonment was imposed), stealing a motor vehicle, and possession of property reasonably suspected of being unlawfully obtained. While the Applicant was made eligible for parole (which at the date of the hearing had not been granted), in the Tribunal’s view, this was a significant sentence which reflects the serious nature of the offending. This is reflected in the Sentencing Judges’ comments:
your offending was serious in and of itself, given that it involves the distribution of drugs in our community. The quantity and quality of the drugs in your possession suggest that you were a user, dealer at the upper lower to mid range. Further, your drug dealing has been associated with stolen property.
Your offending is further aggravated by the fact that you were, at the time, subject of a suspended imprisonment order.
[S]entences of imprisonment ordinary follow when we’re dealing with distribution of drugs and that’s because the major considerations are what we call general and personal deterrence and to get the message out there that we just don’t want people doing this.
…
You had a total of 10.8 grams of good quality methylamphetamine and I’m satisfied you were involved in the distribution of drugs in our community. As I said, in the upper lower to mid-range.
Consistent with this, you were in possession of stolen property. Given all of these factors I’m satisfied that only a term of immediate imprisonment is appropriate.
Sentences of imprisonment are a last resort and when imposed must be viewed as a reflection of the seriousness of the offences.[49]
[49] Pavey and Minister for Home Affairs [2019] AATA 4198, cited by the Respondent in submissions (R1, page 6, para 33).
With respect to the frequency of the Applicant’s offending and whether there is any trend of increasing seriousness,[50] the Applicant’s first conviction, Driving contrary to a learner’s permit was in December 2004. In 2005 he was convicted of Burglary and Commit Offence (Aggravated) and sentenced to a 12 month Community Based Order and 120 hours of community work. His first prison sentence (6 months and 1 day, suspended) was in response to a breach of that order. He was convicted of Common Assault (Aggravated) in 2009 and 2011 and Aggravated Assault Occasioning Bodily Harm in 2014. While that showed some increase in seriousness, the Tribunal notes that was his last recorded conviction for a violent offence.
[50] Para 13.1.1(1)(e) of Direction N. 79.
The Tribunal notes that there were references to other instance of domestic violence within the material submitted by the Respondent. The Applicant was taken to this material in cross examination and while he accepted there was one occasions (separate from the instances for which he was convicted) where police attended his home he denied any other instances of violence against his previous partners. While it is open to the Tribunal to take evidence of the Applicant’s conduct into account, as no convictions arose from those events and there was no evidence to corroborate their circumstances, the Tribunal does not place any weight on that material for the purposes of assessing the seriousness of the Applicant’s conduct, or otherwise for the purposes of this application.
With respect to the Applicant’s drug offending, the Tribunal notes that his offending moved from use and possession related charges to the recent conviction for intent to sell or supply. This represents a trend of increasing seriousness in this type of offending. This is reflected in his two year sentence for the intent to sell or supply offence which is not an insignificant sentence even taken on its own.
Driving offences have been a persistent feature of his record since 2004. The Applicant submitted that while it could be said there was an increase in the seriousness of his offending from 2004 to 2014 the majority of the offences were traffic offences. However, an examination of the Applicant’s record shows that as the number of traffic convictions and suspensions increased, so did associated offending. This includes misleading police, providing false details, obstructing officers, driving unlicensed vehicles and driving a stolen vehicle. In the Tribunal’s view this demonstrated an increasing seriousness in this type of offending.
With respect to the cumulative effect of repeated offending,[51] the Applicant has a consistent history of offending since 2004 which would necessarily have burdened the resources of police, corrective services, and the courts.
[51] Para 13.1.1(1)(f) of Direction No 79.
Looking at the other factors identified in paragraph 13.1.1(1) the Tribunal finds:
(i)The offences were not against vulnerable members of the community;
(ii)Several sentences of imprisonment have been imposed including sentencing on 11 September 2019 to an effective sentence of three years and four months. The Tribunal regards the Applicant’s prison sentences to be not insignificant;
(iii)The Applicant’s offending, in particular his traffic offending, has been frequent and sustained. There were no offences recorded in 2010 and 2012;
(iv)The Applicant has committed around 75 offences since 2004. The ‘cumulative effect’ is, in the Tribunal’s view, significant. This is particularly the case with respect to the Applicant’s long an unabated history of traffic offences;
(v)There is no evidence the Applicant has lied to immigration officials;
(vi)The Applicant had not received any prior warnings. While the Respondent had initially submitted that the Applicant had been previously warned based on a statement made in his request for revocation submissions, it was evident from the Applicant’s evidence before the Tribunal that this warning was merely a reference made by prison staff at Wooraloo Prison in 2010 to the fact that his visa could be a risk of cancellation.[52] The Respondent conceded that this fell short of the sort of formal warning contemplated by Direction No 79, which refers to a warning in writing.[53] While it may be said that the Applicant was alerted to the possibility his visa might be cancelled there is no evidence he received a ‘warning’; and
(vii)There is no evidence the Applicant has committed offences in prison or immigration detention (indeed, there is no evidence he has ever been in immigration detention). In this regard the Tribunal notes the evidence suggests that the Applicant has been a co-operative and compliant inmate.[54] The Tribunal accepts on the evidence that the Applicant has been on good behaviour in prison which is to his credit.
[52] Transcript, page 23-24; R3, S14, page 175.
[53] Paragraph 13.1.1(1)(h).
[54] A16, page 9.
Having regard to all the circumstances of the Applicant’s conduct and offending, the Tribunal considers that the nature and seriousness of the Applicant’s offending and conduct is serious and weighs against exercising the discretion to revoke the cancellation of the visa.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (13.1(2)(b))
Paragraph 13.1.2 of Direction 79 provides:
(1)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).
The Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to the Australian community. This requires both consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be.[55] There is no statutory constraint on the way risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[56]
[55] Nigro v Secretary to the Department of Justice (2013) 41 VR 359 cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424, 444 [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117, 124[42]-[43]. See also Senior Member Evans in CZCV and Minister for Home Affairs [2019] AATA 91 at [56].
[56] see BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181at [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7 at [41] per Kenny J who referred to the basis for the assessment of the risk of re-offending as requiring a “rational and probative basis”.
However, it remains for the Tribunal to determine what constitutes appropriate weight to be given to this consideration in the ultimate decision. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations. As noted above, Direction No 79 provides that certain crimes are to be considered ‘serious crimes’. The Applicant’s violent crimes are to be viewed ‘very seriously’. The Tribunal accepts the Respondent’s submission that the Australian community expects that the Applicant’s visa can, and should, be cancelled in such circumstances. In the Tribunal’s view, the offences in the present case, which by operation of Direction No 79 are to be viewed as very serious offences, are such that the Australian community would expect that the Applicant would not continue to hold a visa. This is the community expectation which is ‘deemed’ by the Government.
However, applicable to the Applicant’s circumstances, the Direction No 79 also provides at para 6.3(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.
The Tribunal finds that the Applicant has committed crimes which are serious crimes and the Australian community would expect that he should not hold a visa. That is, the Australian community would expect the non-revocation of the cancellation of the Applicant’s visa. However, the Tribunal also finds that the community would be likely to have a higher level of tolerance for the Applicant’s criminal conduct due to the fact that he has lived in Australia from a young age.
The Applicant submitted that in his circumstances the ‘deeming consideration’ is outweighed by the other primary considerations, in particular the best interests of his children and the other considerations.
The Respondent submitted that this consideration weighed heavily against revocation on the basis that the Applicant’s offending history, both in terms of the nature and number of offences, was such as to demonstrate a lengthy pattern of disregard for Australian law and had placed the community at significant risk. As such the community would expect he should not hold a visa and significant weight should be afforded that expectation.
Although the expectations of the Australian community will weigh against the Applicant with respect to serious crimes, the Tribunal must decide in the exercise of its discretion how much weight is to be given to this consideration in the process of weighing up the primary and other considerations. Having regard to the relevant authorities and to the particular circumstances of the Applicant’s case, the Tribunal finds that the expectations of the Australian community weigh against the revocation of the Cancellation Decision.
OTHER CONSIDERATIONS
Paragraph 14 of Direction No 79 provides:
(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.
International non-refoulement obligations
The Tribunal is required to consider whether Australia’s international non-refoulement obligations arise in any of the submissions, materials or evidence before the Tribunal[150] .
[150] Paragraph 14.1 of Direction No 79
While the Applicant raised concerns about returning to New Zealand, including concerns about finding employment and accommodation, accessing support services to assist him with resettlement and maintaining a basic standard of living he did not suggest his return engaged Australia’s international non-refoulment obligations. The concerns raised by the Applicant were raised as considerations relevant to the extent of impediments if removed primary consideration and are considered further below.
The Tribunal considers, on the material before it, that Australia’s non-refoulment obligations are not engaged with respect to a decision not to revoke cancellation of the Applicant’s visa. Accordingly, the Tribunal affords no weight to this consideration.
Strength, nature and duration of ties
Paragraph 14.2 of Direction No 79 is as follows:
(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).
Relevantly, paragraph 6.3(5) of the principles section of Direction No 79 states:
(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.
Further, paragraph 6.3(7) of the principles section of Direction No 79 states, in part:
(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.
The Applicant contended that he has been a resident in Australia from a very young age, effectively for his whole life and should be afforded a higher level of tolerance with respect to his criminal conduct. The Applicant submitted a large number of third party supporting statements including from family and friends evidencing the strength of his social connections in Australia, his employment contribution to the community, his commitment to rehabilitation and his plans for a positive and productive future.[151] The Applicant contended that he has strong family ties in Australia including his mother, father, sibling, children, friends, former partners and former employers.[152]
[151] A6, A7, A8, A9, A10, A12, A13, A14, A15, R2, G14, pages 118-120, 131-14. The Applicant also submitted correspondence to him from his former partner, Ms Tua, R2, G14, pages 121-130.
[152] A6, A7, A8, A9, A10, A12, A13, A14, A15; R2, G11, pages 94 and 98; R2, G14, pages 118-120, 131-14.
The Respondent conceded that the Applicant has ties to this country but contended that the Tribunal should not accept that overall he had made a positive contribution to the community. Further, the Respondent submitted that the Applicant’s ties should not outweigh the protection of the Australian community and the expectations of the Australian community which weigh in favour of non-revocation.
The Applicant has been ordinarily resident in Australia since 1988 at the age of 3. His former partners and two children reside here and are Australian citizens. His mother, father and sister are in Australia. His parents and sibling are Permanent Residents. They are New Zealand citizens. The Tribunal accepts that the Applicant has strong family ties in Australia. The Tribunal also acknowledges that his family members will suffer emotional hardship is he is removed. His sister gave evidence that the Applicant’s rehabilitation had given the family an opportunity to rebuild connections which were damaged due to the Applicant’s offending and mental health.[153] She also gave evidence that his removal will limit the family’s capacity to support him and that it will impact his mental health.[154]
[153] A8; Transcript page 44.
[154] A8; Transcript page 44.
The Tribunal accepts that his former partners and his sons may experience financial hardship as a result of his removal as his capacity to provide financial support may be impacted. The Tribunal accepts that, if removed, he would no longer be able to provide physical co-parenting assistance including assistance with child-care which he appears to provide principally with respect to his younger son.
The Applicant began offending when he was 19, in 2004, around 16 years after he began residing in Australia. The Tribunal does not regard that para 14.2(1)(a)(i) of Direction No 79 applies to lessen the weight to be given to his ties to Australia.
The Tribunal accepts that the Applicant has undertaken regular employment while in Australia, principally doing scaffolding related work in the mining and construction industry. The Tribunal accepts he has persons prepared to employ him if released into the community, including with Ellis Crane Hire for whom he previously worked as a scaffolder.[155] that the Tribunal accepts that based on his employment history he has good prospects for obtaining and maintaining employment and that he would continue to contribute in this way if he remains in Australia.[156]
[155] R2, G14, page 143; A6 and A7.
[156] A6; A7; A15; R3, G14, pages 137, 139, 141, 142, 143.
As noted above, the Tribunal accepts that there are a number of community organisations and individuals offering active support for the Applicant and his family. The Tribunal had before it a letter from a ReSet caseworker which explains the ReSet Program. The Applicant was first engaged in this program on 16 November 2019.[157] The Applicant was also referred to Goldfields Rehabilitation Services and assessed on 3 September 2018, 21 March 2019 and 10 January 2020.[158] Each time, the Applicant was deemed eligible to enter residential rehabilitation treatment with the organisation. The Applicant has also made enquiries with Wungening Aboriginal Corporation, Linkt Therapeutic Day Centre and Fresh Start Recovery Programme, each of which offer active support for the Applicant upon his release.[159] The Applicant also made enquiries with the Government of Western Australia Mental Health Commission, the Palmerston Farm therapeutic program, Cyrenian House, Tenacious House and the Salvation Army. However, for various reasons these programs were unable to provide any substantial support to the Applicant either because he needed first to be in the community or because they were not currently accepting applications.[160] The Tribunal accepts the Applicant has links to treatment and rehabilitation programs in Australia and that these ties are important to his prospects for reducing his risk of recidivism in the longer term.
[157] A2; R2, G15, page 144.
[158] R2, G16, page 146.
[159] R2, G17, G24, G25.
[160] R2, G15-G25.
The Tribunal accepts that his immediate family would suffer some financial and emotional hardship if his visa cancellation is not revoked. However, there is limited evidence of the degree of financial support he has been providing to his former partners and their sons. While the Applicant’s removal might limit his capacity to financially contribute to raising his children in the future, the financial position of his former partners and children would remain as it has been at least since he entered prison. They would also continue to have emotional support from his extended family, including his mother with whom the evidence suggests they have a close relationship and regular contact.
The Tribunal accepts that the Applicant has been in Australia for a significant amount of time having settled here with his family at a very young age and has made a generally positive contribution to the community through his employment whilst here. The Tribunal considers that the community would afford him a higher level of tolerance with respect to his offences as a consequence of these factors.
The Tribunal notes that the Applicant’s father, mother and sister are from New Zealand. The Applicant has returned to New Zealand with them several times, although his last visit was in 2013, and his grandparents whom he visited there are now deceased. It is reasonable to conclude that his family may have the capacity to travel to New Zealand to visit the Applicant if he were returned to New Zealand which would lessen the emotional hardship that they are likely to suffer from separation. However, the Tribunal accepts that their capacity to do so would depend on their financial circumstances and may also be impacted by COVID-19 travel restrictions. The Applicant’s sister gave evidence that they would not be in a position, financially, to do so.[161]
[161] A8.
Having regard to all of the Applicant’s circumstances, the Tribunal considers that his ties to Australia and in particular his ties to his children, close family and friends weigh in favour of revocation of the cancellation of his visa.
Impact on Australian business interests
Paragraph 14.3(1) of Direction No 79 provides that the Tribunal is to consider the:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
Neither the Applicant or the Respondent made any submissions on this consideration and the Tribunal finds that this consideration has no application in the present matter. Accordingly, the Tribunal affords no weight to this consideration.
Impact on victims
Paragraph 14.4(1) of Direction No 79 provides that the Tribunal is to consider the:
Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
The Tribunal heard directly from another victim of the Applicant’s offending, his former partner Ms Ale, regarding the impact of a decision not to revoke the cancellation of the Applicant’s visa on son and her family.[162]
[162] R2 G14, page 120; see Para 14.4(1) of Direction No 79.
Ms Ale strongly supported revocation of the cancellation of the Applicant’s visa, principally in the interests of her son. The Tribunal places weight on Ms Ale’s statement and her judgement that it is in her son’s best interests for the Applicant to remain in Australia. As such the Tribunal accepts Ms Ale’s assessment that non-revocation of the cancellation of the Applicant’s visa would impact on her and her family negatively. Those impacts would include: a limitation on the prospect of the Applicant providing ‘regular and stable’ co-parenting support to her and the emotional support that her child would receive through maintaining a close relationship with his father.
Having regard to all the evidence, the Tribunal finds that a decision not to revoke the cancellation of the Applicant’s visa would impact negatively on a victim of the Applicant’s offending and her family. Accordingly, the Tribunal finds that this consideration weighs in favour of the revocation of the decision to cancel the Applicant’s visa with respect to that victim.
With respect to any other victims whose circumstances and views are unknown to the Tribunal, the Tribunal finds the consideration is neutral.
Extent of impediments if removed
Paragraph 14.5(1) of Direction 79 provides:
(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.
The Applicant submitted that he does not have any substantial ties to New Zealand as all of his family are in Australia. The Applicant submitted he would have difficulty finding employment and accommodation in New Zealand and that the stress of separation from his children may be detrimental to his mental health.
The Respondent submitted that while the Applicant may face some short-term hardship re-establishing himself, this was not an impediment to resettlement. The Respondent contended that the extent of impediments was to be considered in the context of what was generally available to other citizens of New Zealand. The Respondent submitted that ‘this limited difficulty would be possibly no more hardship than he would face in re-establishing himself in the Australian community once released from a number of years in criminal custody’. [163]
[163] R1, page 11.
The Respondent submitted that the Applicant would not face any language or cultural barriers and he would likely to be able to maintain the same living standards as he would in Australia. Further there was no evidence he would be unable to access the same social, medical and economic support as other New Zealand citizens. The Respondent also submitted that the Applicant had not provided any evidence of a formal diagnosis of his claimed condition and in any event would be able to access services similar to Australia on return to New Zealand. The Respondent contended that this consideration should be given limited weight.
There is some evidence before the Tribunal that the applicant has been suffering from some mental health issues. It was suggested these might be exacerbated by his return to New Zealand. However, the evidence of the diagnosis of a recognised mental health condition was equivocal. The Applicant stated he had been diagnosed by his GP with bipolar disorder in 2007.[164] However, Dr Watt’s assessment was that this seemed an unlikely diagnosis for the Applicant who accepted he had never followed through with the referral from his GP for mental health assessment by a psychiatrist.[165] The Tribunal has concerns regarding the Applicant’s evidence that he had bipolar disorder on the strength of a GP diagnosis which requested specialist referral which was never actioned by the Applicant. Further, the Tribunal accepts Dr Watt’s reservations concerning the diagnosis. However, the Tribunal does accept the Applicant has a family history of mental health issues and has at least indicated this history of mental health issues to health professionals in the past. As noted above, Dr Watt’s assessed there was ‘clear evidence’ the Applicant suffers from an Anxiety Disorder and periods of Depression.[166] The Tribunal accepts Dr Watts assessment. The Tribunal also notes Dr Watt’s recorded that the Applicant was no longer taking anti-depressant medication and that ‘he continues to function adequately’.
[164] Transcript pages 24-25.
[165] A3, page 2, para 7.
[166] A3, page 2.
The Tribunal accepts the Applicant has a history of mental health issues and that return to New Zealand would be stressful and potentially isolating for the Applicant and would raise a risk of a decline in his mental health, in particular with respect to Anxiety and Depression. However, the Tribunal accepts the Respondent’s submissions that the Applicant would have access to the same mental health services as other New Zealand citizens on return to New Zealand and would have access to appropriate medication and treatment if required there.
There is no evidence of any physical health ailments or issues suffered by the Applicant which would be likely to cause an impediment to removal. In any event there is no evidence that the Applicant would not have access to medical care of a standard available to New Zealand citizens, or that health care in New Zealand would be unable to meet his treatment needs.
The Tribunal regards that the Applicant’s employment experience in Australia would assist him in obtaining employment in New Zealand noting that he has worked almost continuously in Australia and has a number of former employers and colleagues who displayed in submissions to this Tribunal a willingness to provide strong endorsements of his skills and work ethic. This should assist him in pursing employment in New Zealand. However, the Tribunal accepts it would be more difficult for him to do so in New Zealand than in Australia where he has standing offers of employment, strong contacts and strong references.
The Applicant’s sister and a number of his friends have offered to provide housing and other support to the Applicant on his release from detention. The Tribunal accepts that this level of support would not be readily available to the Applicant in New Zealand and that he would suffer hardship as a result.
The principal hardship for the Applicant in returning to New Zealand will be the separation from his family. The Tribunal accepts that if he is removed from his family network the Applicant will suffer emotional and financial hardship and may be at a higher risk of reoffending. The Tribunal does not accept the Respondent’s submission that his re-settlement would be no more difficult in New Zealand than in Australia following serval years in prison. In Australia the Applicant has a support network of family and friends, employment contacts and offers of employment and established mechanisms for ongoing rehabilitation and resettlement services. There is no evidence these things are readily available to him on return to New Zealand and the Tribunal does not accept that they would be.
The Tribunal finds the Applicant has limited familiarity with New Zealand and limited access to family support in that country. However, given the strength of his work history in Australia and his strong work references, the Tribunal finds he has good prospects for employment in construction or resources industries on return to New Zealand. However, the Tribunal accepts he would face social, economic and emotional hardship resettling in New Zealand, principally due to the separation from his family and lack of family support, and that his mental health may suffer as a result. The most significant impediment for the Applicant would be separation from his family and the challenge of establishing himself while maintaining the rehabilitation gains he has achieved in prison.
Impact of the Coronavirus pandemic
The parties provided submissions on the impact, if any, the Coronavirus pandemic would have on the Applicant in the context of the matters before the Tribunal.
If the Tribunal affirms the Reviewable Decision, the Applicant must be removed to New Zealand as soon as is reasonably practicable (under s 198 of the Migration Act). Given current restrictions on international travel due to the COVID-19 pandemic, it may not be possible for the Applicant to be removed in the immediately foreseeable future. Thus, if the Tribunal affirms the Reviewable Decision, the Applicant may face an additional period of detention before it will be reasonably practicable to remove him to New Zealand. However, as noted by Member Eteuati in FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294, [299] ‘[t]his may result in prolonged but not indefinite detention for the Applicant until the risk presented by the virus … subsides’.
The Applicant referred the Tribunal to the New Zealand Government Immigration website which states that:[167]
New Zealand’s border is closed to most travellers and entry is strictly controlled. All arrivals are tested for COVID-19 and a 14-day managed quarantine or isolation is mandatory.
New Zealand citizens, permanent residents and residents with valid travel conditions returning to New Zealand do not need approval from Immigration New Zealand before travelling.
[167] >
The Tribunal appreciates that the prospect of additional time in immigration detention may cause additional stress to the Applicant while he remains in detention. The Tribunal also accepts that the Applicant is likely to be subject to quarantine or self-isolation requirements on return to New Zealand. This may include a period of isolation in a quarantine facility or hotel. The Tribunal also accepts that public health responses to COVID-19, including ‘lockdowns’, may impact the Applicant’s capacity to access accommodation and other services on return to New Zealand. The Tribunal accepts this may extend the time it takes the Applicant to resettle in New Zealand, increasing the financial and emotional stress of relocation.
On balance, having regard to the circumstances of the Applicant, the Tribunal considers that the extent of impediments to the Applicant if removed from Australia weighs in favour of revocation of the Cancellation Decision.
CONCLUSION
Direction No 79 provides some guidance as to how a decision-maker should apply the primary and other considerations, and the weight to be given to them. Paragraphs 8(3), (4) and (5) are relevant here, and state:
(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 a visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
The Applicant does not pass the character test under s 501(6) of the Migration Act. The Tribunal has considered whether there is another reason why the mandatory Cancellation Decision should be revoked, having regard to the primary and other considerations in Direction No 79.
In determining the weight to be applied to each consideration, the Tribunal has regard to all the Applicant’s circumstances, including his history of offending and his progress towards rehabilitation. The Tribunal has considered all the primary considerations, including the serious nature of the offences committed by the Applicant and the risk of harm to the community were he to reoffend. The Tribunal has had regard to the fact the Applicant has been afforded opportunities in the past by the criminal justice system to change his behaviour. He has repeatedly failed to do so. The Tribunal has also had regard to the Applicant’s current demonstration of remorse and his efforts towards to rehabilitation and treatment. The Tribunal has considered the best interests of the relevant minor children and in particular the Applicant’s two sons who would be significantly impacted by his removal from Australia. The Tribunal has also considered the expectations of the Australia community regarding the Applicant’s offending and whether he should continue to hold a visa. The Tribunal has had regard to the other considerations, in particular the strength, nature and duration of the Applicant’s ties to Australia, which are considerable. In this regard the Tribunal gives weight to the significant period of time the Applicant has spent in Australia.
The Tribunal has found that, while he has taken steps towards rehabilitation, the Applicant’s current capacity to maintain his determination to remain drug free and abide by the laws of Australia is untested in the community and his history of recidivism, including following attempts at drug rehabilitation in the community, evidences a real risk of the Applicant re-offending. On the basis of his offending history there is a likelihood that future offending would involve serious drug offences including the supply of prohibited drugs. There is also a likelihood of driving offences and violence offences against domestic partners which present a serious risk to the Australian community. The serious consequences which would flow from the Applicant reoffending present an unacceptable risk to the Australian community. This factor weighs against the cancellation decision being revoked.
The Applicant has been given many chances to reform his conduct and remain in the community and in Australia and he has consistently failed to avail himself of these opportunities. The Tribunal is not satisfied that his the support of his family and friend’s is sufficient to lessen the risk that the Applicant will continue to offend as such support has not been effective in curbing his offending in the past.
In relation to the first primary consideration, the Tribunal finds that:
·the nature and seriousness of the Applicant’s conduct weighs strongly against revoking the Cancellation Decision;[168]
·the risk to the Australian community should the Applicant commit further offences also weighs against revoking the Cancellation Decision;[169]
·Overall, with respect to the first primary consideration, the Tribunal concludes that the protection of the Australian community weighs against revoking the Cancellation Decision.[170]
[168] Paras 13.1 and 13.1.1 of Direction No 79.
[169] Paras 13.1 and 13.1.2 of Direction No 79.
[170] Paras 13.1, 13.1.1 and 13.1.2 of Direction No 79.
The Tribunal finds that the best interests of the Applicant’s s sons weigh heavily in favour of revoking the cancellation decision. The best interests of the Ms Swap’s daughter weighs moderately in favour of revoking the Cancellation Decision. The best interests of Ms Tua’s daughter are not impacted.[171]
[171] Para 13.2 of Direction No 79.
With respect to the expectations of the Australian community, the Tribunal finds that this consideration weighs against revoking the Cancellation Decision.[172] However, having regard to the length of time the Applicant has been in Australia and his ties to Australia the Tribunal places less weight on this consideration than on some other considerations including the best interests of the children and the protection of the community.
[172] Para 13.3 of Direction No 79.
In relation to the other considerations, the Tribunal finds that the strength, nature and duration of the Applicant’s ties to Australia weigh strongly in favour of revoking the Cancellation Decision.[173] Considering the impact of non-revocation on a victim of the Applicant’s offending, the Tribunal finds that a decision not to revoke the cancellation of his visa would impact negatively on a victim of the Applicant’s offending and her family.[174] The Tribunal finds this consideration weighs in favour of revoking the Cancellation Decision with respect to this victim. The Tribunal finds that with respect to any other victims whose circumstances and views are not known the consideration is neutral.
[173] Para 14.2(1) of Direction No 79.
[174] Para 14.4 of Direction No 79.
The Tribunal has given consideration to the impact on Australian businesses and found that factor to be neutral in the Applicant’s circumstances. The issue of non-refoulement did not arise for consideration in submissions or on the information before the Tribunal.
The Tribunal has also found that there are impediments to the Applicant’s removal to New Zealand.[175] The Tribunal accepts the extent of the impediments the Applicant may face on return to the New Zealand, including potential impacts on his mental health and accessing employment and rehabilitation services in the short term. Further, quarantine and other responses to the coronavirus pandemic may impact the Applicant’s ability to resettle in New Zealand. However, the Tribunal does not regard these impediments as insurmountable and having regard to all the circumstances, the Tribunal gives this consideration less weight than the primary considerations mentioned above.
[175] Para 14.5(1) of Direction No 79.
The Tribunal also accepts that the Applicant has strong ties in Australia and acknowledges that he has effectively spent his entire life in Australia. His separation from his family and friends will cause the Applicant hardship and will cause hardship to his family. While this factor weighs most strongly in the Applicant’s favour the Tribunal gives this less weight than the primary considerations which, having regard to the length and seriousness of the Applicant’s offending, outweigh the impact his removal will have on his family.
In these circumstances, having considered all the relevant factors and material before it, the Tribunal is not satisfied that there is another reason to revoke the mandatory cancellation of the Applicant’s visa. The correct and preferable decision is to affirm the Reviewable Decision.
DECISION
The decision of a delegate of the Respondent, dated 25 May 2020, not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (temporary) visa under s 501CA(4) of the Act is affirmed.
I certify that the preceding 248 paragraphs are a true copy of the reasons for the decision herein of Member S Burford
......................[sgd]..................................................
Associate
Dated: 18 August 2020
Date of hearing: 30 July 2020 Counsel for the Applicant: Mr David Blades Solicitors for the Applicant: Chisholm Law Counsel for the Respondent: Ms Charlotte Saunders Solicitors for the Respondent: Minter Ellison
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