CZHF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 4956
•9 December 2020
CZHF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4956 (9 December 2020)
Division:GENERAL DIVISION
File Number(s): 2020/5766
Re:CZHF
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:9 December 2020
Place:Sydney
The decision of the delegate of the Respondent dated 15 September 2020 is set aside and, in substitution, the mandatory cancellation of the applicant’s Class TY Subclass 444 Special Category (Temporary) visa is revoked.
...............................................[sgd]...........................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
MIGRATION – Migration Act 1958 – section 501(3A) – section 501CA – mandatory cancellation of Applicant’s Class TY, Subclass 444 Special Category (Temporary) visa – Applicant is a citizen of New Zealand – failure of the character test – whether there is another reason to revoke the visa cancellation – application of Direction No. 79 – weighing of primary and other considerations – protection of the Australian community – best interests of minor children – expectations of the Australian community – denial of guilt – remorse – strength, nature and duration of ties – elderly frail parents – decision under review set aside
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 43(1)
Crimes Act 1900 (NSW) s 97
Crimes (Sentencing Procedure) Act 1999 (NSW).s 21A
Migration Act 1958 (Cth) ss 499, 500, 501, 501CACASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 62 ALD 673
Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135
Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) 63 FLR 441
Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771
Minister for Home Affairs v Sharma [2019] FCA 597
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234
Re Denise Ridley v Secretary, Department of Social Security [1993] FCA 213
Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155
YKZZ and Minister for Home Affairs (Migration) [2019] AATA 3248SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under Section 499 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
9 December 2020
INTRODUCTION
The applicant arrived in Australia on 30 March 1987 as a two year old.[1] He came with his mother from his birthplace in New Zealand. Since arriving in Australia in March 1987, the applicant has held a number of Class TY Subclass 444 Special Category (Temporary) visas, the most recent of which was granted on 7 May 2010.[2]
[1] G4, 192.
[2] G4, 191.
On 27 September 2013, the applicant was sentenced by the District Court of New South Wales to seven years imprisonment for the offence of aggravated assault (In company assault w/I rob while armed dangerous weapon); with two additional Form 1 matters being taken into account: Larceny, value <= $2,000; and Aggravated break and enter w/I – in company.[3] On the same date, he was convicted of two counts of aggravated robbery (in company rob while armed with dangerous weapon), receiving sentences of five years and eight months and five years and three months respectively. These sentences were upheld on appeal to the New South Wales Court of Criminal Appeal on 31 March 2015.
[3] Decision of District Court of NSW, 27 September 2013: G2, 33 at 42.
On 28 February 2020, his visa was mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act). The Minister’s delegate was satisfied that the applicant had a substantial criminal record and therefore failed the character test,[4] and that he was serving a sentence of imprisonment, on a full-time basis, in a custodial institution for an offence against a law of the Commonwealth, State or Territory.[5]
[4] The phrase ‘substantial criminal record’ is defined in subsection 501(7) of the Act; and includes circumstances where a person has been sentenced to a term of imprisonment of 12 months or more: paragraph 501(7)(c). A person with a ‘substantial criminal record’ is deemed to fail the character test: paragraph 501(6)(a).
[5] G2, 64.
When a visa is mandatorily cancelled pursuant to subsection 501(3A) of the Act, the Minister must give the person concerned written notice of the cancellation setting out the original decision and particulars of the relevant information, and inviting the person to make representations to the Minister about revocation of the original decision: paragraphs 501CA(3)(a) and (b).
The Minister may revoke the original decision if representations have been made in accordance with the invitation and either the Minister is satisfied that the person passes the character test or there is ‘another reason’ why the original decision should be revoked: subsection 501CA(4). If the conditions of the subsection are satisfied then the mandatory cancellation decision must be revoked.[6]
[6] See YKZZ and Minister for Home Affairs (Migration) [2019] AATA 3248, per Deputy President Constance, at para [32], citing Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, where Collier J at [31] considered that in subsection (4) “may” is to be interpreted as “must”.
On 17 April 2020, the applicant made representations in support of revocation of the mandatory cancellation, in response to an invitation to do so.[7] The delegate found that his submission was made within the permitted time frame, and in accordance with the regulations.[8]
[7] G2, 82.
[8] G2, 11.
On 15 September 2020, the Minister’s delegate, having considered the applicant’s representations, made a decision not to revoke the cancellation (the reviewable decision).[9]
[9] G2, 10-24; G26, 233.
On 22 September 2020, the applicant applied to the Administrative Appeals Tribunal (the Tribunal) to review the reviewable decision.[10] The Tribunal is empowered under section 43(1) of the Administrative Appeals Tribunal Act1975 (Cth) to exercise all the powers and discretions that are conferred on the person who made the original decision under review.
[10] G1, 1.
The applicant does not dispute the fact that he fails the character test, in that he has been convicted and sentenced to a term of imprisonment of 12 months or more. The question before the Tribunal is whether there is “another reason” why the mandatory cancellation of the applicant’s visa should be revoked, despite failing the character test: subsection 501CA(4).
THE PRESENT PROCEEDINGS
The application was heard by video conference on 25 and 26 November 2020. The applicant was represented by a friend (AW). The respondent did not raise an objection to AW’s participation in the proceedings, although properly objected to various unsubstantiated allegations contained in correspondence filed by AW, directed at the respondent, and which were, in the course of proceedings, withdrawn by AW. In his letter of 6 November 2020, AW described himself as “an officer of the court” although he admitted that he was not a member of the legal profession. This riddle was not explored at the hearing.
The material before the Tribunal consisted of:
(a)An affidavit by the applicant, dated 30 October 2020;
(b)Affidavits by the applicant’s son, his stepson and their mother, dated 30 October 2020;
(c)A letter from AW, dated 6 November 2020.
(d)Documents tendered by the respondent under section 501G of the Act (G Documents, G1-G27, 242 pages);
(e)The respondent’s Tender Bundle (R1-R47, 170 pages); and
(f)A Statement of Facts, Issues and Contentions by the Respondent, dated 18 November 2020;
DIRECTION NO. 79
A determination under subsection 501CA(4) must be carried out in accordance with any written directions given under subsection 499(1) of the Act: subsection 499(2A).
The Minister has given such written directions. Direction No. 79 commenced on 28 February 2019. See: Direction No. 79 – Migration Act 1958 – Direction under Section 499 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction No. 79).
Under the heading ‘General Guidance’, paragraph 6.2(1) provides:
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.
Paragraph 6.2(3) provides:
The principles provide a framework within which decision-makers should approach their task of deciding whether to…revoke a mandatory cancellation under section 501CA…
Paragraph 6.3, under the heading ‘Principles’, sets out the seven basic principles forming part of that framework. The principles are:
(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.
Taking the relevant considerations into account: paragraph 8 of Direction No. 79
The principles in paragraph 6.3 inform the manner in which the decision-maker must assess the considerations which are required to be taken into account in exercising the relevant discretion: paragraph 7(1).
Part C of Direction No. 79 governs the considerations relevant to determining whether the mandatory cancellation of a non-citizen’s visa will be revoked: see paragraph 7(1)(b).
There are a number of important rules governing the way in which considerations must be taken into account. These may be summarised as follows:
(a)Considerations are divided into primary and other considerations which must be taken into account by decision makers: see paragraph 8(1);
(b)Information and evidence from independent and authoritative sources should be given appropriate weight: see paragraph 8(2);
(c)Both primary and other considerations may weigh in favour of, or against, whether or not to revoke a mandatory cancellation: see paragraph 8(3);
(d)Primary considerations should generally be given greater weight than the other considerations: see paragraph 8(4); and
(e)One or more primary considerations may outweigh other primary considerations: see paragraph 8(5).
Paragraph 13(2) sets out the ‘primary considerations’ to be taken into account as follows:
(2) 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.
Paragraph 14(1) sets out the ‘other considerations’ to be taken into account where relevant, and states:
(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.
PRIMARY CONSIDERATION 1 (PC1): PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
Paragraph 13.1(1) of Direction No. 79 provides that when considering the protection of the Australian community, decision-makers must 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.
Under paragraph 13.1(2) I should also give consideration to:
(a) The nature and seriousness of the non-citizen’s conduct to date;
(b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct
The Tribunal has been provided with the applicant’s criminal record.[11]
[11] G2, 30.
Offending as a juvenile:[12]
[12] G2, 32.
(a)At the age of 16, on 25 May 2000, the applicant was convicted in the Bidura Children’s Court of Robbery in Company. He received a 100 hours Community Services order.
(b)On 25 September 2000, the applicant was convicted in the Bidura Children’s Court of two counts of Robbery armed with offensive weapon. He was placed on a control order for 9 months.
(c)On 3 October 2000, he appeared on a charge of property damage. The charge was dismissed and he was given a caution.
(d)At the age of 17, he was convicted of two offences: assault occasioning actual bodily harm on 10 July 2001, for which he was sentenced to 9 months juvenile justice supervision, and ordered to attend drug/alcohol and anger management counselling as directed[13]; and robbery on 6 December 2001, for which he was placed on a control order with conditions and a one month suspended sentence. He was required to participate in group and individual counselling and programs as required.
Offending as an adult:[14]
(a)On 1 July 2008, the applicant was convicted of driving while his licence was suspended, and driving an unregistered and uninsured car, three offences arising from one course of conduct.
(b)On 11 December 2008, he was convicted of an assault occasioning actual bodily harm and was placed on a good behaviour bond.
(c)On 31 January 2012, the applicant was taken into custody in respect of five offences committed in the month of December 2011 (the 2011 offences). He has remained in custody since.
[13] G2. 32.
[14] G2, 31-32.
The 2011 offences
In July 2013, the applicant indicated that he intended to plead of guilty to the five 2011 offences. He appeared before the District Court of New South Wales on 27 September 2013. He was represented by a Legal Aid lawyer. A document headed Agreed Facts was placed before the Court. Two of the five offences were taken into account on a Form 1.
Count 1: Assault with intent to rob, in company, while armed with a dangerous weapon.
According to the Agreed Facts, at 3:15 am on 9 December 2011, the applicant and two co-offenders forced the rear door to a gaming pub in Southwestern Sydney. One of his co-offenders was armed with an axe and the third carried a bag, which he told staff contained a shot gun. The applicant was armed with a black replica pistol. The intruders were unable to get to the day’s trading, which had been secured in an office safe, whereupon they assaulted a security guard. This gave rise to the first count on the charge sheet, and a conviction for assault with intent to rob, in company, while armed with a dangerous weapon.
The intruders also accosted the bar manager, CB, and stole his wallet and contents, approximately $100 and some bank cards. This gave rise to a charge of larceny, the first offence listed on the Form 1. The applicant frankly admitted that he carried the replica pistol, and was properly convicted.[15]
[15] Transcript, 25 November 2020, at 100/40.
On Sunday 11 December 2011 at 12.45 am, the applicant and three co-offenders forced entry into a bowling club. A security guard activated the security alarm and they fled. The applicant admitted to the Tribunal that he brandished the toy replica pistol, and was properly convicted of the offence, namely break and enter with intent to steal, in circumstances of aggravation (in company). This was the second offence included on the Form 1.[16]
[16] Transcript, 25 November 2020, at 101/25.
Count 2: Armed robbery in company, whilst armed with a dangerous weapon: s 97(2) Crimes Act.
According to the Agreed Facts, on Saturday 24 December 2011 at 5:30 am the applicant and an accomplice entered a service station in Southwestern Sydney. The applicant was armed with a replica pistol and his co-offender was armed with a knife. They robbed the teller, who was working alone, of $1,500.
This gave rise to a conviction for aggravated robbery in company, which was the second count on the charge sheet.
The applicant stated at the hearing that he did not commit this offence.[17]
[17] Transcript, 25 November 2020, 102/5.
Count 3: Armed robbery in company, whilst armed with a dangerous weapon: s 97(2) Crimes Act.
According to the Agreed Facts, on Sunday 25 December 2011, at 3:40 am, the applicant and two others entered a gaming pub in South Sydney by kicking in and smashing a door. They confronted staff and patrons with their weapons, demanding they lie on the floor before dragging the bar manager to the office and robbing him of $19,000 in cash. The applicant was pointing the replica pistol and one of the other offenders hit the manager on the head.
This gave rise to the third count on the charge sheet, a further charge of aggravated robbery in company. The applicant pleaded guilty and was convicted on this count.
As with the offence contained in the second count, the applicant told the Tribunal that he did not commit this offence.[18]
[18] Transcript, 25 November 2020, 103/40.
I note that on 31 March 2015, the Court of Criminal Appeal dismissed an appeal against the sentences. His sentencing appeal to the Court of Appeal did not challenge any of the convictions.[19]
[19] G2, 44.
The applicant told the Tribunal that he was not guilty of the two counts of aggravated robbery in company. He was not present when the offences were committed. He said that he was at home in bed. He said that he pleaded guilty in 2013 on the advice of his Legal Aid lawyer but now regretted taking this advice.
I also note that in a letter dated 6 November 2020, his representative AW wrote that the applicant “did not commit two out of the three burglaries for which he has been found guilty…There is no evidence that demonstrates he committed the robbery at the…Service Station …or the robbery [on 25 December 2011]…”
When asked why he pleaded guilty to offences he did not commit, he said that he pleaded guilty to all charges on the advice of his lawyer, on the basis that he would get a significantly reduced sentence. The respondent’s solicitor examined the applicant closely on this matter:
[Respondent’s representative] I put it to you that the reason that you entered a plea of guilty is because the Crown did have a strong case against you?
[Applicant] Right, okay. Now what I’d like to say against that is the items of clothing that they had of mine, which had my DNA on it, was a black jumper, a full black jumper. This doesn’t match the jumpers that were against the Metro Service Station, and the…pub. That’s not me. Also what I’d like to point out is the height. There’s heights of ATMs and heights of counters that I can assure you, I clear. I’m a tall guy, I’m 193 centimetres tall. The two people that you see in the CCTV footage don’t even clear some of these objects, which I would clear clearly. I understand that I admitted to it, I wrote about it – I signed it, sorry. I can honestly tell you that I didn’t even – when I got given my brief at the time, I didn’t even read the majority of it. It was just overwhelming and I felt – I felt like I was stuck, you know? I just felt helpless and stuck and alone, and it sounds very stupid why you’d plead guilty to something that you didn’t do, but when you’re in a situation like this, and where you’re thinking you’re facing 20 plus years – I even asked my lawyer how long I would get, and I remember him something along the lines saying that, “You’d get four years and a bit of change.” Now at that time when I was (indistinct) a sentence, he’d done a video link with me a week before, and it was a week or two weeks before, and said that, you know, like you know – taking the offer will be your best chance, because you know, you’ll be getting a decent sentence. And I felt like you know, I just – I felt cornered. I felt like I was trapped and I was drowning, and I didn’t know what to do. I didn’t even read it. Like when I was trying to read, I couldn’t match things together, and you know, it’s not until later on when I actually had a read of my brief that there’s a lot of holes…in the statements of the police and their evidence that they have against me. I wish that I had done something about it beforehand, that I didn’t listen to my lawyer, and that I just went on with it. What I know now, because I know a lot more – a lot more now. I shouldn’t have – to me, I felt like I took the easy way out. It was just an easy way out and I felt like you know, all right, my lawyer reckons he’s going to get me another two years in gaol probably, maybe. I’ll do another two years. I’ve done two years already. Okay, maybe hopefully you know, I’ll just – do the two years and I’ll be out, you know? It’ll be over and done with. Same thing will happen with me with the assault. I can tell you the God’s honest truth, I didn’t start that assault. He’s the one who started, and actually swung at me first. But ‑ ‑ ‑[20]
[20] Transcript 25 November 2020, 104-105.
….
[Respondent’s representative] Yes. And [Applicant], you’ve said that you took the easy way out by pleading guilty to these offences because you thought you’d get a lighter sentence?
[Applicant] No, well I just thought that you know, I didn’t know much of my case and anything like that, and I just thought I just want it over and done with. I mean I was on remand for over a year, being in remand, and that’s like being in limbo and not knowing your fate. And I just – at that point, I just wanted it over and done with. I didn’t care anymore. I just – whatever. Just okay, all good, I’ll just cop it on the chin as they say, and that’s the honest truth.
…
[Respondent’s representative] Well I put it to you that what you’re doing once again is trying to take the easy way out. You’re trying to get the tribunal to accept that you didn’t do these offences, when in fact you admitted to them a long time ago, and the sentencing judge found that you probably pleaded guilty because the Crown had a very strong case against you?
[Applicant] Well I don’t agree with that, but you know, it’s not an easy way out because it doesn’t matter – even if I prove myself innocent of those two, it doesn’t take away the fact that I still done something really bad. You know, I’m not trying to take away from that at all. I’m not trying to take the easy way out. I mean even if – let’s just say an argument’s sake that you know, I am innocent. Youse actually – we actually prove it. We’ve gone to court and I’m innocent of that. That doesn’t excuse the fact that I’ve already offended with the other two matters.
…
[Respondent’s representative] So you accept responsibility for the two less serious offences, but you’re now asking the tribunal, or you’re now making an argument ‑ ‑ ‑?
[Applicant] It’s not less – it’s not less serious offence. It’s – they’re still very serious offences. These aren’t – what’s less about it?
[Respondent’s representative] Well the two later offences were regarded by the court as being more serious, that’s why the first two were dealt with on a Form 1?
[Applicant’s] Well I understand that, but to me that’s – it’s still a serious offence (indistinct). It doesn’t matter, it doesn’t shy away from the fact, that’s what I’m trying to get at.
…
[Respondent’s representative] So you’re now, a number of years later, changing your story?
[Applicant] Yes.
[Respondent’s representative] Why should the tribunal believe you?
[Applicant] Right, so at the time when I was going for my appeal, I felt like – I still hadn’t read the whole matter of my brief, and not thinking – I was just thinking, you know, I’ve got – I’m hoping that I can go for an appeal and just get a lesser sentence, and just deal with it. I wasn’t thinking about, you know, anything taking it to retrial and all that.[21]
[21] Transcript 25 November 2020, 106-107.
In assessing the nature and seriousness of the offending, or the likelihood of reoffending, the Tribunal is entitled to have regard to the entirety of the applicant’s conduct, including the nature and seriousness of the conduct which led to the convictions, and make its own assessment of the significance of such conduct. There is no general rule that the Tribunal may not consider material which challenges the grounds on which a prior conviction was based.[22]
[22] See HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202, per McKerracher J, [69], citing with approval Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 62 ALD 673, per Branson J, [43], [45].
However, there are some important qualifications on the Tribunal’s broad power of review. In relation to the offence or offences relied upon as triggering the mandatory cancellation, neither the conviction nor sentence can be challenged or impeached in order to show that the applicant is not a person who does not pass the character test; or that there is ‘another reason’ why the original decision can be revoked.[23] Impugning the conviction would undercut the jurisdiction of the Tribunal, which under subsection 501CA(4) of the Act is founded upon the non-citizen having been convicted of an offence and sentenced to imprisonment for 12 months or more.[24]
[23] See HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202, per McKerracher J, [68].
[24] Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135; Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) 63 FLR 441, per Sheppard J, 468; per Fox J, 445; Mlinar and Minister for Immigration and Multicultural Affairs (1997) 48 ALD 771; Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234, Branson, Lindgren and Emmett JJ, 244, [40]-[42]; Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 62 ALD 673, per Branson J, [45]; cited with approval in HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202, per McKerracher J, [69]; HZCP v Minister for Immigration and Border Protection [2018] FCA 1803, per Bromberg J, [78]-[79]; Minister for Home Affairs v Sharma [2019] FCA 597, per Anastassiou J; Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155.
In the present case, the Notification of Decision not to revoke the Visa Cancellation made under s501(3A) of the Migration Act 1958 sent by letter dated 16 September 2020 includes the Decision Record. The Record refers to in-company assault w/I rob while armed dangerous weapon (Count 1) as the offence triggering the mandatory cancellation (see paragraph 6). The Minister’s delegate does not appear to have relied on the counts of aggravated robbery (Counts 2 and 3) as a ground for cancellation. There is therefore no in principle impediment to receiving evidence which tends to show that the applicant did not commit the offences contained within Counts 2 and 3.
I note in passing that a notice of visa cancellation was issued to the applicant on 28 February 2020 and reissued in identical form on 10 March 2020.[25] The Notice(s) refers explicitly to the Count 1 offence of aggravated assault together with Form 1 matters that resulted in a sentence of 7 years imprisonment. In the next part of the Form, which deals with Imprisonment on a full time basis, the Notice(s) refers to the offence of aggravated robbery, for which he was sentenced to five year and three months imprisonment. This is a reference to the third count relating to the offence on 25 December 2011.[26]
[25] G2, 57; G2, 64.
[26] The overall sentence structure was that the individual sentences were to be served consecutively with a partial accumulation. At the time of visa cancellation, the applicant was on his third and last ‘sentence’.
As to whether it is against public policy to receive evidence before the Tribunal which contradicts a previous conviction of a criminal court, I refer to a passage in the judgment of the Full Federal Court in Re Denise Ridley v Secretary, Department of Social Security [1993] FCA 213 (Spender, Gummow and Lee JJ):
29. With regard to the submission that it was "contrary to public policy" and an "abuse of process" to permit Mrs Ridley to "re-litigate" before the Tribunal an issue determined against her by the convictions recorded in the Court of Petty Sessions, it is necessary to re-state the function of the Tribunal. The Tribunal has been established to review decisions of administrators and, if necessary in conducting that review, to exercise the powers and discretions of such decision-makers. The provision of a forum in which a party has an opportunity to present material and make submissions pertinent to the exercise of administrative powers does not make a hearing of that type a proceeding within a federal system for the administration of justice. The adoption by the Tribunal of an adversarial procedure in the conduct of its review does not make that review part of the process of litigation. It follows, therefore, that review of an administrative decision does not involve consideration of whether the conduct of the review may bring the administration of justice into disrepute. Whatever procedure the Tribunal may adopt to carry out its statutory duties, it performs solely administrative functions in deciding what administrative decision is appropriate. The AAT Act provides to a person affected by the exercise under an enactment of an administrative decision-making power the right to seek to have a reviewing authority (the Tribunal) exercise that decision-making power. That person is entitled to present to the Tribunal any material that ought to be taken into account in the making of that decision. If that material also challenges facts that were essential for the conviction of that person of an offence, it is not a requirement of law under the rubric of public policy that the review of an administrative decision and the exercise of an administrative discretion or decision-making power be carried out by excluding from the consideration of the reviewing authority material which challenges the grounds on which the prior conviction was based.
[emphasis added]
As this passage amply demonstrates, in proceedings before the Tribunal conducting a review of an administrative decision, there is no absolute exclusionary rule in relation to material that challenges facts that are essential to a conviction. It is not the case that consideration of material that conflicts with a previous conviction will necessarily bring the criminal court into disrepute or cause some embarrassment to the administration of justice.
Is the evidence sufficient to cast doubt on the two disputed convictions?
Leaving aside the fact that the applicant pleaded guilty to all five offences considered by the District Court on 27 September 2013, the case against the applicant on the second and third counts was largely circumstantial. The sentencing Judge commented that there was “reasonably strong case” against him. I do not think that it could be described as an exceedingly strong or irresistible case. However, I am not persuaded that the material put before the Tribunal justifies a finding that the applicant did not commit the offences on 24 and 25 December 2011.
The applicant pointed to the following: the telephone-intercept evidence, the DNA evidence; the CCTV footage and his sworn testimony that he was not at the scene of the crime at all, but at home in bed. He said that the telephone-intercept evidence, which indicated that the applicant used coded words to his co-offenders to plan the raids, was equivocal (because the relevant transmission towers covered not only the crime scene but also his home). He also said that other persons had access to his mobile phone. With regard to the CCTV evidence, he said that the persons indicated therein did not match his height profile. He also stated that other persons had access to the car that was used on the various occasions.
I note that the 2015 appeal to the Court of Criminal Appeal was confined to an appeal against sentence; it did not challenge any of the convictions.[27]
[27] G2, 44.
I have read the judge’s sentencing remarks closely, and listened carefully to the applicant’s denials. I have re-read the transcript. Apart from his vehement protestations of innocence, the applicant was unable to point to any material before the Tribunal that would undercut his previous plea of guilty.
The applicant admitted to committing the offences on 9 and 11 December 2011 associated with Count 1. He accepted that those offences were serious in their own right.
Looking at the case as a whole, and taking into account the common elements linking all of the 2011 offences, I am satisfied that the applicant was involved in the commission of all five offences. I note but do not accept the applicant’s vehement denials with regard to the offences of aggravated armed robbery contained within counts 2 and 3.
Relevant factors
Paragraph 13.1.1 of Direction No. 79 outlines various factors that must be considered in relation to the nature and seriousness of the applicant’s conduct. I turn to those factors.
Violent crimes – paragraph 13.1.1(1)(a)
The offences of assault and robbery committed as an adult in 2008 and 2011 involved actual violence.
Crimes of a violent nature against woman – Paragraph 13.1.1(1)(b)
The offences did not involve crimes against women.
Vulnerable members of the community or government representatives/officials – Paragraph 13.1.1(1)(c)
Crimes committed against vulnerable members of the community, or government representatives or officials, are serious. Some of the offending involves this principle; for example, the second count relating to the service station committed on 24 December 2011. The victim of this offence was working alone in the early hours of the morning. The sentencing judge found that this was an aggravating element under section 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The sentence imposed – Paragraph 13.1.1(1)(d)
In relation to the 2011 offences, parole was due to commence on 30 April 2020 and the last of the sentences to expire on 30 April 2023. The following sentences were imposed:
(a)First count: five years and three months non-parole period with a balance of one year and nine months.
(b)Second count: four years and three months non-parole period with a balance of 17 months.
(c)Third count: two years and three months non-parole period with a balance of three years.
The sentencing judge imposed a discount of 12.5% because of the late guilty plea.[28] His sentence is due to expire on 30 April 2023. The non-parole period was 8 years and 3 months.
[28] G2, 33.
His earliest possible parole release date (EPRD) was originally 30 April 2020,[29] but was amended to a release date of not later than 11 April 2020 for reasons relating to the Covid-19 pandemic[30], and he was released on 8 April 2020.
[29] G8, 211.
[30] R37, 104.
The sentencing judge formed a very low opinion of the applicant, and suggested that he was neither credible nor remorseful.[31] He took this into account in determining the sentence to be served.[32] The very experienced judge rejected a psychological assessment which provided favourable insights into the applicant’s behaviour. He was very critical of the methodology of the report, which was not included in the material before the Tribunal. He did however accept a pre-sentence report that he considered to indicate a lack of remorse.[33] A pre-sentence report dated 23 September 2013 states:
[The applicant] was forthcoming with the information contained in this report. He presents as a 29 year old man with a history of problematic alcohol, illicit drug use and gambling issues. He attempted to blame the breakdown of his relationship as the catalyst for his increase in criminal behaviour and to justify his unabated gambling, alcohol and illicit drug use. With regard to the offences [the applicant] accepted responsibility for his actions but displayed no regard for the victim, being self focused on the impact this had to him.[34]
[31] G2, 39.
[32] G2, 42.
[33] G2 40.
[34] R11, 47.
I note that the unfavourable view held by the judge is also, to some extent, reflected in the 2020 pre-release report prepared by Corrective Services NSW:
[The applicant] acknowledges the reasons which led to the offences and he appeared to have accepted responsibility. In recent interviews he has demonstrated some insight into his offending behaviour and spoken of his growing maturity. However, this has not been reflected in his conduct and it remains of significant concern that [the applicant’s] most recent offences, in November 2019, include possession of drug implement [sic] and use of methamphetamines and buprenorphine.[35]
[35] Report dated 13 February 2020: R37, 102.
The frequency of offending – Paragraph 13.1.1(1)(e)
The 2011 offences were committed within a narrow time frame of one month after a long period of good behaviour. There is a considerable period between the robbery offences committed as a juvenile and the later offending as an adult.
The cumulative effect of repeated offending – Paragraph 13.1.1(1)(f)
The December 2011 offending involved four major incidents with a similar purpose, to enter premises in the early hours with a view to stealing property, and to strike fear into those encountered by the bluff of being armed. It is fortunate for the community that the behaviour of this group was interrupted by the police before it escalated to the level of a full-blown crime-spree.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
I note the risks specifically identified at 13.1.2(1), namely,
(a) the nature of 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 reoffending.
If the applicant engages in further similar acts it is highly probable that members of the community may be injured.
Remorse is not of itself a factor referred to within Direction No. 79, although it is relevant to an assessment of the likelihood of reoffending.
In my view, the applicant’s capacity to express genuine remorse is tempered by a sense of grievance that his total sentence was overly harsh. As noted by the Court of Appeal “the Sentencing Judge formed a most unfavourable view of the Applicant. He found him to be neither remorseful nor credible.”[36] The applicant commented that he had done a longer sentence than some of those sentenced for homicide. He is not reconciled with the sentence he received. His sense of injustice has increased rather than decreased with time. He spoke about the need to take responsibility for being ‘inside’, and how he encouraged others to do so, but there is no doubt about the sense of injustice that he feels. However, he did not seek to shirk responsibility for the three offences included in the first count. As he noted, these offences are still very serious.
[36] G2, 52.
In my view there is a moderate risk that the applicant may engage in further criminal or other serious conduct.
Behaviour in prison
I turn to the final aspect of this review, concerning his behaviour in prison and detention. The respondent relied on the internal disciplinary record as further evidence of ongoing recalcitrance.
His record in prison is far from perfect.[37] One troubling aspect in his continued use of non-prescribed drugs in prison. There are five instances of Fail prescribed drug test, three instances of possession of drug or drug implements; three instances of fighting; one instance of disobeying a direction and a single charge of property damage.
[37] See Punishment Details – G5, 197.
When taken through his record in prison, the applicant sought to minimise his responsibility, and in some cases denied the offence altogether. Despite this unfortunate tendency, I note that his record must be set within the context of a relatively long sentence, spanning almost 10 years in prison, including a prior lengthy period on remand.
I also note that the applicant has a history of drug and alcohol dependency, and while it is expected that persons will be abstemious in prison, it appears that in some penal settings drugs are readily available. This is of course no excuse, but considered in isolation I do not regard his prison record as damning.
It is impossible to exclude the possibility that the applicant may return to old ways, diminish his parents, and neglect his sons. He may yet be lost to alcohol, drugs and gambling. And to habits and associates of the past. It is impossible for say that a person will not fall again. If he falls, he will fall far and those members of his immediate family who have stood by him will be prime causalities.
My overall conclusion is that the applicant has very good prospects of rehabilitation, with only a moderate risk of reoffending. The imposition of a long sentence justified by reference to general deterrence will serve to mitigate the risk of reoffending. As to the question of remorse, it is obvious that the applicant has no remorse for those parts of his criminal record that he does not accept. For example, he has no remorse for the aggravated robberies. He claims not to have been involved in them. He did in fact express strong feelings of remorse for the other offences committed in December 2011.
An adverse inference should not be drawn as to the likelihood of his reoffending, because he denied two of the five offences dealt with by the District Court in 2013. I do not think that a denial of wrongdoing which fails to persuade a decision-maker should of itself be treated as evidence of bad character, or a lack of remorse.
Conclusion with respect to PC1
My conclusion with regard to the protection of the Australian community is that it weighs firmly but not heavily against revocation of the mandatory cancellation.
PRIMARY CONSIDERATION 2 (PC2): THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
The applicant has two minor children, a 10 year old biological son (BC), and a 16 year old stepson (SH).
In considering the best interests of the children, I am required to consider the range of factors specified in paragraph 13.2(4)(a) to (h).
a) Nature and duration of the relationship
I note that less weight should be given where there have been long periods of absence, or limited meaningful contact. The applicant has of course been physically separated from his children for a very long time; in the case of his young son, for virtually his entire life.
Despite this physical separation, there is evidence that the applicant has a very close relationship both boys and especially with his 10 year old son. The relationship has been sustained and nurtured by his mother through regular prison visits, often with one or both of the boys.[38] In the seven years from October 2012 to 5 October 2019, the prison logs show a total of 63 visits by BC in the company of his grandmother or mother, or approximately nine visits per year. The visits started when he was two or three years old. I also note a significant number of prison visits by SH.
[38] Offender Visits. R47, 157-170.
Each of the boys signed an affidavit saying how much they missed him and wanted him to return to live with them.
The applicant said that he hoped to live with his parents when he was released from detention, and that he hoped that his ex-partner and children would be able to live there as well.
The applicant gave evidence regarding the strength of his relationship with his sons.
[Respondent’s representative] How often are you speaking with your son these days?
[Applicant] Every day almost. You know, I speak to my partner and she puts my son on, and I speak to them a lot. I say hello to [SH]. I try to talk to them as much as I can, but you know, being a teenager I think, you know, he’s – you know, it’s not the same when you talk to a little boy, you know? I think he’d rather me out there, because you know, he wants me to play sports with him and all that sort of stuff. So it’s hard, it’s very hard through the phone to talk to a teenager and to keep his attention span on you, for one thing.
But as for my other son, [BC], he – you know, he loves speaking to me. You know, we talk pretty much almost every day. Almost every day, and you know, it has become – our relationship has become a lot more stronger and we’ve become a lot more close, only because this is new territory for both of us. You know, I only got to see him whenever – you know, in gaol and it was only an hour visit or so. And I’m allowed to hug him for five minutes, and then he has to sit in the chair. It was very awkward, and you know, now we can just be ourselves and you know, we don’t have anyone telling us that you know, you have to be finished in the next five minutes, or visits are finishing in 10 minutes, wrap it up, and all this sort of stuff. So yes, it has been a lot better [in Villawood detention centre].[39]
[39] Transcript, 25 November 2011, p 86.
With regard to his stepson SH, the applicant said:
I’ve known [SH] since he was three years old. That is when I started dating my partner. I’ve been in his life since he was three years old pretty much and, you know, I honestly, I love him the same as my own son. I don’t see him as a stepson at all. He’s a really good kid. With [SH] I was able to be there in this life that whole time before I was locked up. He’s got to experience me being there with him and, you know, when we’ve been – me and my partner were both working, I would work – finish work early and go pick him up from my mum’s house because my mum would have him after school. And then I’d take him home, prepare dinner for him and for my partner so when they got back – when she got back, you know, she was really tired, you know, she could enjoy a home-cooked meal. Especially knowing that I was there looking after him, you know, it sort of introduced me into being a father at that time when I had no – probably before I met her I had no probably, like, structure, I would say, in my life. I mean, I had no responsibilities. I never knew what responsibilities were until, you know, I started dating my partner. So I honestly didn’t want, like, to be honest, I honestly didn’t want any children. I used to think, you know, because I was thinking young and just, you know, thinking, I’m just – I don’t want any kids, I just want to live my life and all this sort of stuff but it’s not until I actually started dating my partner and getting to know SH that I actually wanted to have – be a father. I’ve taught SH a lot of things. You know, I’ve – I know it probably sounds a bit silly but, you know, we used to always play the PlayStation all the time. You know, just when you teach someone something and then, you know, you – afterwards you watch them later on and they’re actually doing the thing that you taught them, you know, it sort of gives you a good feeling, you know, that someone’s actually listening to you and – yes, he’s a very good kid. And, you know, he’s older. I mean, you know, I’m worried about his mental health if I was to leave, you know.[40]
(b) The extent to which the applicant is likely to play a positive parental role in the future, taking into account the length of time before the child turns 18.
[40] Transcript 25 November 2020, p 28
The applicant has a history of drug and alcohol use. He has suffered a long sentence, spanning the ages of 27 to 37 years old. After such a long period in prison, it is not clear what sort of role model the applicant will be. There is also some evidence that his offending was caused by an addiction to gambling, which was in turn related to problems in his relationship. Any tendency to return to substance abuse or criminal behaviour will be highly deleterious to the children.
(c) The impact of the applicant’s prior conduct, and whether that conduct has, or will have a negative impact on the child
There is no evidence before the Tribunal as to any negative impact upon his youngest child. His 16 year old stepson was only six years old when the applicant was taken into custody. There is no evidence that the applicant has directed any violence of aggression towards his sons.
As to the possibility of negative impact, it is virtually impossible to predict, in the absence of any professional reports, what the impact will be. There is certainly nothing to suggest that the applicant is proud of his criminal offending, and he says that he is deeply ashamed. If this is a genuine emotion, it may have some use for his boys to see the impact of genuine remorse.
(d) The likely effect that separation will have on the child
The applicant is not a stranger to his boys, but the simple fact is that he has been physically separated from them for most of their lives. His youngest son would have no memory of his father other than in prison. However, the evidence before the Tribunal suggests that the boys are looking forward to the return of the father. His removal is likely to have a negative impact upon them.
(e) Whether there are other persons who already fulfil a parental role in relation to the children.
There are other reliable adults who provide for the children.
(f) known views of the children
The positive views of the children have been conveyed to the Tribunal in affidavits dated 30 October 2020.
(g) Evidence of abuse or neglect
There is no such evidence.
(h) evidence of physical or emotional trauma arising from the applicant’s conduct.
The fact that the applicant received a long prison sentence for his criminal offending has naturally led to emotional distress for his children, indeed for his family generally. But there is no evidence of any physical or emotional trauma directed specially at the children. Quite the contrary. The evidence such that the applicant has a very close relationship with his son and also with his stepson.
Conclusion with respect to PC2
The respondent concedes that this primary consideration weighs in favour of revocation of the mandatory cancellation. I agree and I find that it weighs firmly in favour of revocation. I cannot find that it weighs heavily in favour because the children appear to have some stability in their lives and a strong anchor point in their grandparents. The introduction of the applicant into that environment injects an element of uncertainty. Nevertheless, overall PC2 weighs firmly in favour of revocation of the mandatory cancellation.
PRIMARY CONSIDERATION 3 (PC3) – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The principles contained within paragraph 6.3 of Direction No. 79 are stated to be of ‘critical importance’ in furthering the government’s objective of protecting the Australian community from harm as a result of criminal activity: paragraph 6.2(1). These principles ‘reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable’: paragraph 6.2(1).
One of the principles is that a non-citizen who has committed a serious crime should ‘generally’ expect to be denied the privilege of staying in Australia: paragraph 6.3(3). Another principle is that in some circumstances the criminal offending and the harm that would be caused if it were 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 the visa: paragraph 6.3(4).
Paragraph 13.3(1) provides as follows:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision makers should have due regard to the Government’s views in this respect.
I note that paragraph 6.3(5) provides that:
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.
[Emphasis added]
The applicant was born in 1984 and arrived in Australia on 30 March 1987 at the age of two. In the 33 years since his arrival he has spent six years offshore, mostly in New Zealand. Since being taken into custody on 31 January 2012, he has spent almost nine years in prison or detention as a result of the five offences committed in December 2011. It is undoubtedly true that he has spent most of his life in the Australian community, and from a very young age. The ‘higher level of tolerance’ would seem to apply fairly to the applicant, given the age at which he came and the duration of his residence, and without discounting his time spent in detention and prison, or offshore.
Decisions of the Federal Court suggest that PC3 necessarily weighs, at least to some degree, against revocation. But it is for the Tribunal, as decision-maker, to determine how decisively PC3 operates in favour of revocation of the mandatory cancellation decision, in light of the particular circumstances of the case.[41] The individual circumstances of the applicant are necessarily in the front and centre of this decision-making process.
[41] FYBR v Minister for Home Affairs [2019] FCAFC 185.
I note the following factors. The applicant does not have a long history of criminal offending as an adult. There is a conviction for assault, considered by the sentencing judge to be relatively minor, a conviction for using an unregistered vehicle, and a minor driving offence. For the five offences committed by the applicant over the course of December 2011, he was sentenced to consecutive sentences with a partial accumulation to implement the principle of totality.
But nevertheless, given the nature of the offending by the applicant, and especially the effect of terrorising the victims of the robberies, PC3 weighs firmly (though not heavily) in favour of non-revocation.
Conclusion with respect to PC3
This consideration points firmly against revocation of the mandatory cancellation; tempered somewhat by the length of time the applicant he has spent in the Australian community.
OTHER CONSIDERATIONS
OC1: International non-refoulement obligations
The issue of non-refoulement has no application in this case.
OC2: Strength, nature and duration of ties
As noted above, the applicant was born in 1984 and arrived in Australia on 30 March 1987 at the age of two. In the 33 years since his arrival he has spent six years offshore. Since being taken into custody on 31 January 2012, he has spent almost nine years in prison or detention.
I am required to give less weight where the non-citizen commenced offending soon after arriving in Australia, and more weight to time the non-citizen has spent contributing positively to the Australian community.
It cannot be said that the applicant started offending soon after arriving in Australia. His first offences, as a juvenile, occurred when he was 15 years old.
I am required to give more weight to time spent contributing positively to the Australian community. The applicant worked as an audio-visual technician for a period prior to his imprisonment. The Tribunal does not have a comprehensive employment history for the applicant.
The Tribunal has received and read letters of support from the applicant’s mother and father and siblings and various other members of his family, friends and a pastor.
(a)LR (mother) (dated 13 May 2020);[42]
[42] G2, 104–105.
(b)DR (father) (dated 13 May 2020);[43]
(c)AR (sister) (dated 13 May 2020);[44]
(d)LM (sister) (dated 13 May 2020);[45]
(e)DJR (nephew) (dated 14 May 2020);[46]
(f)AJ (uncle) (dated 11 May 2020);[47]
(g)AP (partner) (dated 18 May 2020);[48]
(h)FW (friend) (dated 16 May 2020);[49]
(i)LW (friend) (dated 12 May 2020);[50]
(j)LP (friend) (dated 13 May 2020);[51]
(k)PH (Pastor) (dated 15 May 2020).[52]
[43] G2, 101-103.
[44] G2, 99-100.
[45] G2, 117–118.
[46] G2,108–109.
[47] G2, 110-111.
[48] G2, 106–107.
[49] G2, 112.
[50] G2, 113–114.
[51] G2, 115–116.
[52] G2, 119–120.
The applicant’s family situation is as follows.
(a)His parents are elderly;
(b)His mother and father live with their adult daughter, who has serious health problems;
(c)He has three older sisters;
(d)He has two half-siblings, a half-sister living in England and a half-brother living in Australia;[53]
(e)He has two children in Australia, his biological son BC and his stepson SH;
(f)His mother looks after his son every weekend;
(g)His sister AR gave evidence at the hearing, strongly in his favour;
(h)His partner did not wish to give evidence in the proceedings;
(i)There is no evidence that his partner will deny him access to the children.
[53] Transcript, 25 November 2020, 56.
The applicant’s sister, AR, gave evidence to the Tribunal.[54] She was asked about the impact upon her family of the removal of the applicant. She said:
Yes, so my father, he - like I said, he’s a sick man. He has undergone major surgery because he’s got stomach cancer, and there’d be periods where he’d be fine, and then there’d be periods where the cancer spread a little bit, so we always have to monitor that. So he’s quite limited in his, like, mobility and so forth. He’s also elderly, 75 years old. Both of my parents are elderly parents, so my mother is 70 at least, she’s 72 years old. She’s also had operations on her knee and she has a few medical issues, although not as bad as my dad, and it will impact them because they have to rely on someone. They rely on us to an extent, but we’re actually (indistinct) we’re the youngest in our family. He was born in the 80s and I was born in the 70s. I’m 45, my sister…is currently living with my parents too. She has limited mobility issues as well. She works but she has limited mobility issues, so it’s - we need somebody that is going to be there that can actually take care of my parents that is physically fit. [The applicant] is the physically fit one out of all of the siblings, and also he’s a lot younger than us, so he’s an advantage. And also it will impact the rest of our family because we haven’t seen him for nine years, and so we have a sibling bond with him. He also has a son here. He has two, he has a step-son, a teenage step-son and he has a boy, a young son who’s 10 years old, so it will impact severely. It’s already impacted our family already, so it would severely impact - of course his son is growing up without a father.[55]
[54] Transcript, 26 November 2020, 158.
[55] Transcript, 26 November 2020, p 159.
Under cross-examination she said that she was aware of the fact that he had used drugs and alcohol in his twenties but she was unaware of the full extent of the problem. She was unaware that he had used heroin.[56]
[56] Transcript, 26 November 2020, p 162.
She was asked about the possibility of relapse.
[Respondent’s Solicitor] So it’s obvious that you want the best for your brother and you genuinely hope that he’s rehabilitated, but given his long history of - with substance abuse, do you have any reservations about whether he’ll be able to remain drug free and stay out of trouble if he’s released into the community?---
[Witness] Yes, because when you say long history, the thing is so he was 17 when he went into juvenile - sorry, 16 juvenile, came out at 17. He didn’t re-offend. He didn’t, like, have any crimes up until the - 27. So there was this big huge gap there, many years, you know, where he got into a stable relationship, he became a father and he was working and supporting his family. He, you know, was really supportive to us, our family and my parents, and he was a good son. There was a just problem when he became, you know, long-term unemployed, he became unemployed and then it sorted led to more than six months, more than nine months, and that’s when the - you know, the changes happened, that’s when the drug addiction, the alcohol, that’s when, yes, it led to crimes, the crimes. That’s when that happened at 27, but there was a big chunk there where he was really good, and he was very responsible.
[Respondent’s Solicitor] Yes, but I guess the question is if he finds himself in a situation like that again where there are triggers, for instance, if he had difficulty finding employment when he gets out of jail, sort of, if he and his partner split up again, do you have confidence that he will be able to get through that crisis without turning to drugs?---
[Witness] Yes, I do, because (1) he is a different - he’s in a different age category now, he’s 36; and (2) he’s changed a lot. I’ve seen massive changes in his character. Not that he was in my opinion as his sister that he was a bad person before. He did something bad. It’s not a reflection of him himself. What he did was bad, but him as a person he’s not a bad person, and, yes, I have every confidence that he will be able to come out, you know, rejoin society and, like, have no problems, and if there were any, like, temptations or whatever he’s got a very strong network, family support and his partner and his children, so, yes, I have very - I’m very confident in him, yes. [57]
[57] Transcript, 26 November 2020, 162-164.
I am required to consider the effect of non-revocation on the applicant’s immediate family. I have no hesitation is saying that the removal of the applicant to New Zealand will be a tragic loss both to his parents, especially his mother, and to his sons, especially his ten year old. It is hard to avoid a sense that this outcome would constitute a double punishment especially for his mother, who has steadfastly maintained the link despite the arduous nature of her visits to Bathurst and other prisons over so many years.
The mother impressed me as an outstanding and caring individual who had done a lot to keep the family together and mend the damage done by her son’s offending, for which she was deeply ashamed. She is a person of considerable religious conviction and indicated, when pressed about the potential hazards of living with her son should he revert to old habits, that “I will not abandon my son”.[58] She was pressed very strongly on this point.
[Respondent’s Solicitor] …I understand that you’re very hopeful that if he’s given the opportunity your son will turn – will prove that he’s turned his life around. But if you’re wrong about that and he continues to have issues with drugs is it in the best interests of your grandson to be living in the same household with a parent who has those issues?
[Witness] I don’t really know what to say. Like I said, the only answer I think – I believe and trust my son, that he’s change and that will never happen. That’s all I believe and that’s my answer, my final answer.[59]
[58] Transcript, 26 November 2020, 172.
[59] Transcript, 26 November 2020, 174.
Removal of the applicant would deprive his 10 year old son of an opportunity to grow through teenage years with the benefit of a father. His stepson will turn 18 in less than two years but in the short term the applicant’s removal will constitute a serious loss of opportunity. The evidence is that the stepson’s natural father has indicated that he will not allow his son to travel to New Zealand. Neither the applicant nor the applicant’s former partner (the mother of his son and stepson) favoured separating the boys. The applicant’s removal to New Zealand would therefore dramatically limit the opportunities for physical contact between the applicant and his sons.
Given the breadth and depth and duration of the applicant’s family ties in Australia, I find that OC2 weighs heavily in favour of revocation of the mandatory cancellation decision.
OC3: Impact on Australian business interests
There is no evidence of any impact on Australian business interests that would significantly compromise the delivery of a major project or delivery of an important service in Australia. This factor is neutral.
OC4: Impact on victims
There is no evidence before the Tribunal relating to the impact on any particular victims. This factor is neutral.
OC5: Extent of impediments if removed
This consideration relates to the extent of any impediments that the applicant may face if removed to New Zealand, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of New Zealand) taking into account his age and health, language or cultural barriers, and any social, medical and economic support available in New Zealand.[60]
[60] Direction No. 79 Paragraph 14.5(1)
The applicant may face extreme hardship is removed to New Zealand, for the following reasons:
(a)He has a criminal record involving a lengthy period of incarceration;
(b)He has no employment in New Zealand and limited job prospects given his criminal record and lack of connections;
(c)He has no practical support systems in New Zealand. The evidence is that he has only a few distant relatives living in New Zealand;
(d)It is not unlikely that he will experience extreme financial hardship;
(e)It is unlikely that any member of his existing Australian family will be able to afford to visit him in New Zealand;
(f)It is unlikely that any member of his existing Australian family will be able to support him in New Zealand;
(g)He stated at the hearing that he was fit and healthy. However, he has in the past experienced drug and alcohol abuse;
In this context, it is relevant to refer to an Information Sheet entitled FAQs for Returning Offenders dated January 2019 and provided by the New Zealand government to deportees returning from Australia.[61] It is clear that the government of New Zealand takes a keen interest in this issue and provides support and supervision for returning offenders, who remain subject to parole conditions in New Zealand for the duration of their Australian sentence. The following is extracted from the FAQ document.
On your arrival in New Zealand
What can I expect at the airport?
On your arrival you will be met and spoken to by NZ Police. If you are subject to a Returning Offenders Order, you will also be met by staff from Community Corrections who will discuss the details of your Returning Offender Order, assess your current situation and immediate needs. They will be able to assist you getting in touch with People at Risk Solutions [PARS] if you need help with obtaining a benefit, finding employment and/or sourcing longer term employment. Once you are off the plane and have passed through Customs these discussions are held in private.
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Where will I stay?
In most cases, Australian authorities will work with you to arrange short-term accommodation for your return to New Zealand. If you are subject to a Returning Offenders Order, the accommodation will need to be approved by a New Zealand probation officer. If the accommodation is deemed unsuitable, your probation officer will assist you in finding suitable alternatives. Please advise your probation officer if you have family/whānau who might be able to assist you in New Zealand.
What if I have no money?
Work and Income in New Zealand is like Centrelink in Australia. They will talk to you about finding employment and can provide income support. They’ll sort out some immediate things to support you in the first few days and they’ll continue to work with you to support your relocation to New Zealand...
[61] See: (accessed 2 December 2020)
There would appear to be a level of support and supervision provided to returning offenders by various authorities in New Zealand, but this is not to detract from the personal hardship the applicant will suffer if removed from the affections of his immediate family.
The applicant has some technical training in the area of audio-visual installations and spoke of his love of that work. The extent to which his experience has been overtaken by technological developments is unclear. However, it is not inconceivable that with some retraining in New Zealand he would be able to find employment in this area again.
Moreover, as the following passage shows, the applicant is a young man in the prime of health.
And you know, I’ve got no health issues. I’m strong as anything. I’m willing to do the work. I’m willing to go and do what I need to do to keep my family safe and healthy and happy. You know, it’s not fair that my mum has to suffer because of my choices that I made. Like I said, I just – I’m ready to, you know, make amends for everything that I’ve done, and I’m willing to do anything.[62]
[62] Transcript, 25 November 2020, 79.
I also note that New Zealand has an advanced social welfare system to which the applicant will have recourse should the need arise.
My overall conclusion with respect to OC5 is that it weighs in favour of revocation, but only moderately so. He will undoubtedly face challenges in establishing himself and maintaining basic living standards. As a former long serving prisoner, he will require a considerable level of support from social services on a number of levels, in terms of accommodation, financial support, training and assistance in securing employment.
WEIGHING THE FACTORS
The ‘protection of the Australian community’ (PC1) weighs firmly against revocation of the mandatory cancellation. The ‘expectations of the Australian community’ (PC3) also weighs firmly in favour of non-revocation. Neither weighs heavily against revocation.
The ‘best interests of minor children affected by the decision’ (PC2) weighs firmly in favour of revocation of the mandatory cancellation. The breadth and depth and duration of the applicant’s family ties in Australia (OC2) weigh heavily in favour of revocation of the mandatory cancellation decision. The ‘extent of impediments if removed’ (OC5) weighs moderately in favour of revocation. All other considerations are neutral.
The role of the Tribunal is to take into account all of the considerations identified in the Direction No. 79 and make the correct or preferable decision.
Taking all relevant considerations into account, I find that there is ‘another reason’ why the mandatory cancellation decision should be revoked.
DECISION
The decision of the delegate of the Respondent dated 15 September 2020 is set aside and, in substitution, the mandatory cancellation of the applicant’s Class TY Subclass 444 Special Category (Temporary) visa is revoked.
I certify that the preceding 129 (one hundred and twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member
................................[sgd]........................................
Associate
Dated: 9 December 2020
Date(s) of hearing: 25 and 26 November 2020 Representative for the Applicant: AW (Friend) Solicitors for the Respondent: Ms S Roberts, Mills Oakley Lawyers
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