De Ruyter and Minister for Home Affairs (Migration) [2019] AATA 1392 (21 June 2019)
Division:GENERAL DIVISION
File Number: 2019/1876
Re:Vincent De Ruyter
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:21 June 2019
Place:Brisbane
The Tribunal affirms the reviewable decision, being the decision of a delegate of the Minister for Home Affairs on 1 April 2019 not to revoke the cancellation of Mr De Ruyter’s Class TY Subclass 444 Special Category (Temporary) Visa.
.............[sgd]........................................................... Senior Member A. Nikolic AM CSC
MIGRATION – Mandatory visa cancellation – citizen of New Zealand – Class TY Subclass 444 Special Category visa – violent and serious criminal offending – failure to pass good character test – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – decision affirmed
Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999
SECONDARY 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
Senior Member A. Nikolic AM CSC
21 June 2019
The applicant, Mr Vincent De Ruyter, seeks review of a decision by a delegate of the Minister for Home Affairs, made under s 501CA(4) of the Migration Act 1958 (“the Act”), not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) Visa (the visa).
The hearing was held in Brisbane on 11 June 2019. The applicant was represented by his sister, Ms Melanie Le Bherz. The Minister was represented by Ms Rachael Law of Clayton Utz.
Pursuant to s 500(6L) of the Act, the Tribunal must discharge its review function in respect of this application by 24 June 2019.
For the reasons that follow, the Tribunal affirms the decision under review.
BACKGROUND
Mr De Ruyter is a 29-year-old citizen of New Zealand who first arrived in Australia on
4 October 2000[1] as a 10-year-old child with his mother. Apart from eight relatively brief overseas departures…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
De Ruyter and Minister for Home Affairs (Migration) [2019] AATA 1392
Case
[2019] AATA 1392
Decision Date
CaseChat Overview and Summary
This matter concerned an application by Mr De Ruyter, a New Zealand citizen who had resided in Australia since childhood, for review of the Minister's decision not to revoke the mandatory cancellation of his visa. Mr De Ruyter's visa was cancelled under section 501(3A) of the *Migration Act 1958* (Cth) following his conviction for numerous offences, for which he was sentenced to five years imprisonment. The Administrative Appeals Tribunal was required to determine whether to exercise the discretion under section 501CA(4)(b)(ii) of the Act to revoke the visa cancellation.
The Tribunal was tasked with assessing the nature and seriousness of Mr De Ruyter's criminal offending, considering factors outlined in Part C of the relevant Direction. This included evaluating the violent and dangerous nature of his crimes, the cumulative effect of his repeated offending, and whether he had re-offended after being warned about the consequences for his migration status. The Tribunal also had to consider any personal circumstances and the best interests of any children affected by the decision, while balancing these against the risk of harm to the Australian community.
In its reasoning, the Tribunal placed significant weight on the sentencing remarks from the District Court, which detailed Mr De Ruyter's extensive criminal conduct over a 13-month period, including violent offences committed while armed and in company, and participation in a riot while in custody. The Tribunal noted a pattern of offending that escalated in seriousness, with Mr De Ruyter committing further offences while on bail and in custody, demonstrating a disregard for Australian laws. While acknowledging Mr De Ruyter's claims of rehabilitation efforts and positive relationships with his son and other family members, the Tribunal found these efforts to be recent and untested in the community. Crucially, there was no corroborating expert evidence to confirm that his issues with alcohol and drugs had been adequately addressed, leading the Tribunal to conclude there was an unacceptable risk of recidivism.
Ultimately, the Tribunal affirmed the decision under review, finding that Mr De Ruyter did not pass the character test. Despite acknowledging that revoking the visa cancellation might slightly favour the development of his relationships with his son and other children, the Tribunal determined that the serious and violent nature of his offending, coupled with the ongoing risk of harm to the Australian community, outweighed these considerations. Consequently, the mandatory cancellation of Mr De Ruyter's visa was not revoked.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
For the reasons that follow, the Tribunal affirms the decision under review. BACKGROUND Mr De Ruyter is a 29-year-old citizen of New Zealand who first arrived in Australia on 4 October 2000[1] as a 10-year-old child with his mother. Apart from eight relatively brief overseas departures between 2001 and 2014,[2] Mr De Ruyter has resided permanently in Australia for the last 18 years.[1] Exhibit R1, 70.[2] Ibid 69-70. Mr De Ruyter attended primary and high school in Australia to Year 11. After leaving high school he worked in the construction industry for about a year, and then held various jobs in the service and hospitality industries for approximately seven years.[3][3] Ibid, 59. On 19 June 2017 Mr De Ruyter’s visa was mandatorily cancelled under s 501(3A) of the Act. This followed his conviction on 18 May 2017 of multiple charges in the Southport District Court, for which he was sentenced to five years imprisonment.[4] At the time of his visa cancellation Mr De Ruyter was serving a full-time sentence of imprisonment and remains imprisoned at the Maryborough Correctional Centre.[4] Ibid, 32 [16]. Mr De Ruyter was invited to make representations to have the visa cancellation decision revoked, and did so on 20 June 2017 within the period and in the manner specified under the Act. After considering his representations, the Minister advised Mr De Ruyter on 1 April 2019 that the cancellation of his visa would not be revoked. By application dated 6 April 2019, Mr De Ruyter applied to the Administrative Appeals Tribunal for a review of the non-revocation decision, stating through Ms Le Bherz:I believe the decision was wrong as there has not been enough weight or recognition placed on the genuine effort Vincent has made towards successful rehabilitation and that the period of offending was brief and out of character. This decision has also not given adequate consideration to the long term, damaging effects on Vincent’s son [child’s name redacted].EVIDENCE BEFORE THE TRIBUNAL In addition to the G-documents numbering 155 pages and Supplementary G-documents numbering 355 pages,[5] other documents taken into evidence were:(a)an undated letter from Mr De Ruyter;[6](b)an undated, unsigned letter from Mr De Ruyter’s mother;[7](c)an undated letter from Mr De Ruyter’s biological child;[8](d)two letters from general practitioner Dr Ken Cameron, both dated 17 April 2019;[9](e)a letter from Mr De Ruyter’s brother;[10](f)Minutes of a meeting dated 28 February 2019 of the Maryborough Correctional Centre’s Prisoner Advisory Committee;[11] and(g)A copy of the applicant’s academic transcript from the University of Southern Queensland and Certificate of Achievement from ‘Atrius’.[12][5] Exhibit R2.[6] Exhibit A1[7] Exhibit A2.[8] Exhibit A3.[9] Exhibit A4.[10] Exhibit A5.[11] Exhibit A6.[12] Exhibit A7. The only witness called at the hearing was Mr De Ruyter.National Police Certificate and Sentencing Remarks Mr De Ruyter’s National Police Certificate discloses that in 2008 and 2015 he answered three relatively minor public nuisance and dishonesty matters, which the courts dealt with through fines, a good recognisance period, and without recording convictions.
Evidence
Evidence Before The Court
By application dated 6 April 2019, Mr De Ruyter applied to the Administrative Appeals Tribunal for a review of the non-revocation decision, stating through Ms Le Bherz:I believe the decision was wrong as there has not been enough weight or recognition placed on the genuine effort Vincent has made towards successful rehabilitation and that the period of offending was brief and out of character. This decision has also not given adequate consideration to the long term, damaging effects on Vincent’s son [child’s name redacted].EVIDENCE BEFORE THE TRIBUNAL In addition to the G-documents numbering 155 pages and Supplementary G-documents numbering 355 pages,[5] other documents taken into evidence were:(a)an undated letter from Mr De Ruyter;[6](b)an undated, unsigned letter from Mr De Ruyter’s mother;[7](c)an undated letter from Mr De Ruyter’s biological child;[8](d)two letters from general practitioner Dr Ken Cameron, both dated 17 April 2019;[9](e)a letter from Mr De Ruyter’s brother;[10](f)Minutes of a meeting dated 28 February 2019 of the Maryborough Correctional Centre’s Prisoner Advisory Committee;[11] and(g)A copy of the applicant’s academic transcript from the University of Southern Queensland and Certificate of Achievement from ‘Atrius’.[12][5] Exhibit R2.[6] Exhibit A1[7] Exhibit A2.[8] Exhibit A3.[9] Exhibit A4.[10] Exhibit A5.[11] Exhibit A6.[12] Exhibit A7. The only witness called at the hearing was Mr De Ruyter.National Police Certificate and Sentencing Remarks Mr De Ruyter’s National Police Certificate discloses that in 2008 and 2015 he answered three relatively minor public nuisance and dishonesty matters, which the courts dealt with through fines, a good recognisance period, and without recording convictions. On 18 May 2017 Mr De Ruyter was convicted in the Southport District Court of offences committed during an approximately 13-month period between June 2015 and August 2016 as follows:(a)Burglary and commit indictable offence;(b)Assault occasioning bodily harm whilst armed/in company;(c)Three counts of Enter premises and commit indictable offence by break;(d)Three counts of Unlawful possession of weapons category d/h/r weapon - short firearm in public;(e)11 counts of Unlawful use of a motor vehicles;(f)Two counts of Enter premises and commit indictable offence; (g)Enter premises with intent;(h)Two counts of Dangerous operation of a vehicle;(i)Possess weapon with altered identification marks;(j)Seven counts of Receiving tainted property;(k)Common assault;(l)Four counts of Stealing;(m)Three counts of Wilful damage;(n)Two counts of Possess dangerous drug;(o)Possessing anything for use in the commission of crime; and(p)Riot or mutiny endangered the security of the facility.Sentencing Remarks In sentencing Mr De Ruyter, Judge Katherine McGinness of the District Court of Queensland, stated:[13]Mr De Ruyter, you have pleaded guilty to numerous offences, namely 43 offences on indictment, summary offence and 34 matters which you have not pleaded guilty to, but which are being taken into account today and you accept guilt in relation to those. The offences to which you have pleaded guilty included numerous dishonesty offences, receiving stolen property, breaking and entering business premises and cars, stealing property…You entered the complainant’s apartment at night-time with others, in an attempt to retrieve a phone. You burned the complainant on the leg with a lighter. You abused him, before taking some property from him and the keys to his car, which you then drove away in. Fortunately he was not seriously injured. On the 16 of January 2016, whilst on bail, you and others assaulted a second complainant. You were armed with a bat, you struck him to the head and he fell to the ground and then you and others continued to punch and kick him. He suffered some bruising and other, relatively minor injuries…you then stole his car. You have also pleaded guilty to offences of possession of weapons, to wilful damage, dangerous operation of a motor vehicle, when you were driving on the wrong side of the road and a police vehicle which happened to be in the vicinity had to swerve off the road to avoid a collision with you. You have also committed a number of drug offences as well…And whilst you were in custody, you took part in a riot. It is accepted that you were not one of the instigators of the riot. Nevertheless, it is clear on the facts that you played an active role that day.…As is often the case, you have had a history of drug and alcohol abuse, which is often seen in offending of this kind. It is important that you address that upon your release, or otherwise you will end up back in custody. I note that you have also been medicated with some mood stabilising drugs and, again, it is important that things like that are managed both whilst you remain in custody and upon your release.…Firstly, I must have regard to the very serious nature of the offences…I also have regard to the period of the offending…, over which time you committed some of the offences whilst on bail and one offence in custody. A concerning feature is the fact that dangerous weapons were found in your possession on occasion and also what is particularly serious are the offences of violence which you committed. They were in company and in one case, you were armed. The offending on both of those occasions involved standover-type behaviour intended to provoke fear and cause distress to your victims. It was cowardly and gratuitous behaviour…Sentences do, however, need to be imposed to deter you and others from offending in such a serious manner. As I have already stated, the riot offence is also serious, it having occurred in custody. Balanced against that, I must have regard to a number of factors personal to you. Firstly, you did cooperate significantly in the administration of justice by your pleas of guilty. Due to the nature of the charges and the number, you have saved the cost of what would have otherwise been a number of very lengthy trials by your cooperation... I also note that for someone in this situation, you have a surprisingly minor criminal history. There are no previous offences of violence and that is a factor that I also have regard to. Although, having regard to the cases, the court of appeal has previously decided…I was initially of the view that a sentence in the range of six years would have been appropriate, I intend to impose a head sentence of five years imprisonment, to reflect the total criminal behaviour and set a parole eligibility date on 17 June 2017…[13] Ibid, 30-34.Information purportedly from Queensland Police Service
Decision
Reasons for decision
No additional considerations were advanced by the parties or identified by the Tribunal as relevant to the specific circumstances of Mr De Ruyter’s application. CONCLUSION Mr De Ruyter does not pass the character test. In determining whether the conditional discretion under s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of his visa should be exercised, the considerations at Part C of the Direction have been applied to the specific circumstances of his case. Mr De Ruyter’s violent criminal offending is objectively very serious. Were he to repeat his crimes, the harm that may be inflicted on members of the Australian community is potentially very serious. Mr De Ruyter has reoffended despite being the beneficiary of lenient treatment by the courts in 2008 and 2015. He committed serious and violent offences soon after his July 2015 court appearance. After being charged and bailed for those violent offences, he committed further serious and violent offences while on conditional liberty. After his bail was revoked and he was placed on remand, he committed a further criminal offence while in custody. Mr De Ruyter’s evidence during the hearing was that he has also been ‘breached’ by corrections authorities for misconduct, specifically for involvement in two fights in 2017 and 2018. Mr De Ruyter has committed numerous traffic infringements and driving offences over a decade, attracting fines, licence suspensions for periods of up to two years, and vehicle seizure. Mr De Ruyter’s conduct reflects a prolonged and regrettable disregard for Australia’s laws. The Tribunal notes Mr De Ruyter’s claims about rehabilitative progress, which all follow the cancellation of his visa in mid-2017. Any such progress is relatively recent and untested in the community. There is no corroborating expert evidence to conclude that the alcohol, drug and other problems Mr De Ruyter says contextualise his offending have been adequately addressed, or that he represents an acceptably low risk of recidivism. The Tribunal concludes there is a real risk of Mr De Ruyter reoffending, which constitutes an unacceptable risk of harm to the Australian community. Mr De Ruyter’s evidence is that he severed all connection with his family in 2014, including with his biological child, nieces and nephews. The Tribunal acknowledges his aspiration to reconnect with and play a more prominent role in the lives of these children in the future. Less weight is placed on these relationships, however, because Mr De Ruyter’s role during the last five years has been non-parental and there have been long periods of absence and meaningful contact. Apart from the letter from his son, there is no evidence from the other children (nieces and nephews) about how their interests may be affected if Mr De Ruyter was unable to remain in Australia. It is not possible to differentiate how the interests of these children may differ. That said, the Tribunal accepts that Mr De Ruyter has positive relationships with the children whose interests he invokes. The Tribunal also accepts that there are prospects of him re-establishing a more meaningful relationship with his son, which the letter purportedly from his former partner appears to welcome. Further developing the relationships with his son, nieces and nephews would clearly be more difficult if Mr De Ruyter was returned to New Zealand. This primary consideration weighs in favour of revoking the cancellation of Mr De Ruyter’s visa, but for the reasons adduced, only slightly so.
Ratio Decidendi
Legal Principle Established
Paragraph 13.1.1(1) sets out factors to be considered in determining the nature and seriousness of a 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 seriously.b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious; c) The sentence imposed by the courts for a crime or crimes;d) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;e) The cumulative effect of repeated offending;f) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;g) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);h) 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.Tribunal consideration: The nature and seriousness of the conduct The Tribunal places considerable weight on the sentencing remarks dated 18 May 2017, which reflect very serious criminal conduct by Mr De Ruyter over an approximately 13 month period. He was found in possession of dangerous weapons and committed violent crimes while armed and in company with co-offenders. Her Honour described some of Mr De Ruyter’s offending as involving ‘standover-type behaviour intended to provoke fear and cause distress to victims.’ Mr De Ruyter committed offences while police were trying to detain him. On another occasion he actively participated in ‘Riot or mutiny endangering the security of the facility’. It is clear from the evidence that Mr De Ruyter’s offending has occurred while he was free in the community, while on conditional liberty, and in custody. In his oral evidence, Mr De Ruyter stated that he had been ‘breached’ on two occasions in 2017-2018 for involvement in fights with other inmates. He contextualised these fights as self-defence and on one occasion, says prison authorities contributed to the altercation by putting him in a situation he ‘never should have been put in.’ The Tribunal notes that Mr De Ruyter’s decade-long history of traffic infringements and driving offences reflects an increase in objective seriousness over time, encompassing licence disqualification of up to two years and vehicle seizure.Tribunal findings: The nature and seriousness of the conduct