Dennis and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 356
•1 March 2022
Dennis and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 356 (1 March 2022)
Division:GENERAL DIVISION
File Number(s): 2021/9846
Re:Ratu Taniela W C Ramatak Dennis
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:1 March 2022
Place:Sydney
The decision under review is affirmed.
...............................[sgd]....................................
Chris Puplick AM, Senior Member
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction 90 – protection of the Australian community – nature and seriousness of offending conduct – risk of reoffending – expectations of the Australian community – impediments to removal – strength, nature and duration of ties to Australia – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 500, 501 and 501CA
CRIMES (SENTENCING PROCEDURE) ACT 1999 (NSW) S 7
CASES
BATSON V MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS [2021] FCA 1660
CFHQ AND MINISTER FOR HOME AFFAIRS (MIGRATION) [2018] AATA 3858
CGX20 V MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS (NO 2) [2020] FCA 1842
CONTRERAS V MINISTER FOR IMMIGRATION AND BORDER PROTECTION [2015] FCAFC 47
CZCV AND MINISTER FOR HOME AFFAIRS (MIGRATION) [2019] AATA 91
DHARMA AND MINISTER FOR HOME AFFAIRS (MIGRATION) [2018] AATA 2757
Do and Minister for Immigration and Border Protection [2016] AATA 390
FHHM V MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS [2021] FCA 775
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19
FOX V PERCY [2003] HCA 22
FYBR V MINISTER FOR HOME AFFAIRS [2019] FCAFC 185
LE V COMMISSIONER OF TAXATION [2021] FCA 303
MINISTER FOR ABORIGINAL AFFAIRS V PEKO-WALLSEND LTD (1986) 162 CLR 24
MINISTER FOR HOME AFFAIRS V HSKJ [2018] FCAFC 217
MINISTER FOR IMMIGRATION AND CITIZENSHIP V SZJSS [2010] HCA 48
SON AND MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS (MIGRATION) [2021] AATA 2947
SULEIMAN V MINISTER FOR IMMIGRATION AND BORDER PROTECTION [2018] FCA 594
TANIELU V MINISTER FOR IMMIGRATION AND BORDER PROTECTION [2014] FCA 673
TEWHARE AND MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS (MIGRATION) [2021] AATA 2875
YNQY V MINISTER FOR IMMIGRATION AND BORDER PROTECTION [2017] FCA 1466
SECONDARY MATERIALS
Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Chris Puplick AM, Senior Member
1 March 2022
Mr Ratu Taniela W C Ramatak Dennis (the Applicant) is a citizen of Fiji and is 21 years of age. He first arrived in Australia in August 2008 as the holder of a Dependent Child (Subclass 445) visa which was converted in September 2018 into a Return Resident (Subclass 155) visa.
That visa was cancelled by a delegate of the Minister (the Respondent) on 6 April 2021 because the Applicant was taken to have failed the “character test” set out in subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) as a result of being sentenced to a term of imprisonment of 12 months or more.
On 4 May 2021 the Applicant sought a reconsideration of that visa cancellation decision which was, nonetheless, reaffirmed by the Respondent on 8 December 2021.
On 17 December 2021 the Applicant applied to this Tribunal for a review of that non-revocation decision and the matter was heard on 21 February 2022.
The hearing was conducted using the Microsoft Teams platform and in accordance with the Tribunal’s COVID-19 protocols. The Applicant appeared from the detention centre at Yongah Hill (Western Australia) and was self-represented.
Once again, the Tribunal draws attention to the difficulties faced when critical issues of credibility and truthfulness are before it for consideration, but it is deprived of the opportunity of face-to-face contact and discussion with, in this instance, the Applicant. It is mindful of the comments of Logan J to the effect that decision-making is compromised:
given that the then prevailing public health restrictions dictated that the hearing be conducted by the impersonalising, technologically capricious, audio-visual medium of Microsoft Teams, rather than by the superior means of an appearance in person in the courtroom.[1]
[1] Le v Commissioner of Taxation [2021] FCA 303 at [9]. The Tribunal notes another judicial authority raising warnings about the need for a more critical approach to the questions of determining matters of personal credibility as follows: Fox v Percy [2003] HCA 22 per Gleeson CJ, Gummow and Kirby JJ at [30]-[31].
Nevertheless, given present circumstances, that is the basis upon which the Tribunal must proceed.
VISA CANCELLATION
Subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) provides that the Minister (the Respondent) must cancel the visa of a visa-holder who has been convicted to a term of imprisonment of 12 months or more on the basis that they are defined as thus having “a substantial criminal record”. Being so convicted and having a substantial criminal record means that a person has failed the “character test” set out in subsection 501(6) of the Act. Visa cancellation in these circumstances is mandatory. Following the Applicant’s conviction on 7 December 2020 and the imposition of an aggregate sentence of 14 months imprisonment by the Local Court in NSW, the automatic cancellation occurred on 6 April 2021.
The Act goes on to provide that where a person has had their visa cancelled on character grounds, they may appeal to the Minister for a revocation of that visa cancellation if there is “another reason” why that should occur. In doing so they are invited to make representations in support of the cancellation revocation, and the Applicant did so on 4 May 2021. The Respondent’s decision not to revoke the visa cancellation in spite of the Applicant’s representations is now before the Tribunal for review.
By virtue of subsection 500(6L) of the Act the Tribunal is required to make its decision by 3 March 2022, in the absence of which determination the Respondent’s refusal to revoke the visa cancellation would stand.[2]
[2] For details of relevant dates see Respondent’s Statement of Facts, Issues and Contentions at [31].
THE APPLICANT’S OFFENDING HISTORY
The Australian Criminal Intelligence Report reveals that the Applicant committed a number of offences in the period from June 2020 until February 2021.[3]
[3] G-documents at 21-25.
The Tribunal accepts the characterisation of this record, given by the Respondent’s representative at the hearing, as “not unduly extensive”. The issue in large part is less about the number of convictions or sentences involved than it is the responses of the Applicant to those sentences, his subsequent behaviour as well as his understanding and acceptance of the gravity and consequences of his actions. They of course must be assessed within the prescribed framework of Ministerial Direction 90 (set out below at paragraphs 41-53 of the decision).
The Applicant appeared before the Court on two separate occasions when sentences were imposed on him:
(a)on 24 June 2020, when the Applicant was convicted of “Enter inclosed land not presc premises w/o lawful excuse” and two counts of “Destroy or damage property <=$2000” and sentenced by Fairfield Local Court to a 12-month Community Correction Order (CCO), commencing 24 June 2020 and concluding 23 June 2021; and
(b)on 7 December 2020, when the Applicant was convicted by Fairfield Local Court of one count each of “Destroy or damage property”, “Affray”, “Assault occasioning actual bodily harm” and “Assault officer in execution of duty”, in addition to two counts of “Common assault”. He was sentenced to an aggregate 14 months’ imprisonment to be served by way of an Intensive Correction Order (ICO), commencing 7 December 2020 and concluding 6 February 2022.[4]
[4] G-documents at 21-22. On 7 December 2020, the Applicant was also called up for breach offences which included “enter inclosed land not presc premises w/o lawful excuse”, “destroy or damage property <= $2000 – T2”, but these resulted only in fines. For completeness, the Applicant was also called to the Court on 8 February 2021 for travelling without a valid ticket, but only a section 10A conviction was recorded.
In the latter matter the Applicant pleaded guilty to the charges. The Court, comprising the same Magistrate who had dealt with the June 2020 offence, in passing its sentence of a “term of imprisonment to be served in the community by way of an Intensive Corrections Order”, made the following remarks:
HIS HONOUR: Thank you. Now, listen, you think you are invincible, okay? I read these papers and I read about a 20 year old who is terrorising people, okay? Listen carefully, because I spoke to you in June and I warned you what would happen if you came back before me. I put you on three good behaviour bonds and it took you four months to breach those bonds…
There is nothing here, there is nothing here that is endearing towards you. Now, that is not the test. What will it take for you to get the message? What will it take? Because, all the other magistrates pander to you because you are and you are still at the early phase of your life and you need an opportunity to learn. I gave you that opportunity in June and you blew it. And no one has spoken to you the way I am speaking to you. No one has dared to raise their voice to you. But, I am going to make it clear to you that if you breach the ICO that I put you on now there is nothing left for you other than full-time gaol, understand?
ACCUSED: Yes, sir.
You do not get four chances and five chances and six chances. You get one. You are only lucky that the first one you got related to a very minor enter inclosed lands, which is a fine only offence, and a destroy property. That is your luck…
If you do not do the things Community Corrections tell you you need to do, you are in breach. That is full-time gaol. If you turn up on the first few occasions and not the next few occasions of community service work, rehabilitation, you are in breach, it is full-time gaol. If you turn up late, drunk or drugged, you are in breach, it is full-time gaol. If you are ill and you do not give them a medical certificate, you are in breach, it is full-time gaol. Are we clear?
ACCUSED: Yes, sir.[5]
[5] Ibid at 26-30.
Despite the clear warnings of His Honour, the Applicant failed to comply with the conditions imposed upon him.
On 11 January 2021 a Breach Notice in relation to the Intensive Corrections Order was raised by the Fairfield Community Corrections Office (NSW Department of Corrective Services). It identified a series of alleged breaches of the ICO, namely:
(a)fail to comply with orders to remain at an approved residence on three known occasions; and
(b)fail to comply with conditions requiring the charging of his electronic monitoring equipment.
As a result of the breaches alleged above, among other incidents, the Applicant was found to have become “unsatisfactory” in terms of his engagement with supervision arrangements and the Community Corrections Office identified that:
“[w]hilst the alleged breach doesn’t correlate to his offending behaviour, it does demonstrate and apparent disregard for the conditions of his Intensive Corrections Order.”[6]
[6] Respondent’s Tender Bundle (Tender Bundle) at 75-77.
Apparently, this Breach report led to a decision by the State Parole Authority on 19 January 2021 to revoke the Intensive Corrections Order[7] which was reviewed and affirmed on 10 March 2021.[8]
[7] Crimes (Sentencing Procedure) Act 1999 (NSW) s 7; G-documents at 70-74.
[8] G-documents at 33-34.
Following the 19 January 2021 decision, the Applicant was taken into custody on 5 February 2021 to serve the remainder of his term of sentence, being one year, two weeks and five days.[9] It appears that his date for consideration of parole was 7 April 2021[10] and a favourable decision must have been made in his case as it was the Applicant’s evidence that he was transferred to Immigration Detention on 11 April 2021.
[9] Ibid at 115.
[10] Ibid at 31.
Returning to the two offences for which the Applicant was convicted, it is clear that both involved elements of anti-social behaviour, acts of aggression against people and objects and that both were committed while the Applicant was “well affected by alcohol” or otherwise intoxicated by an illicit substance.[11]
[11] Tender Bundle at 7.
In the first instance (20 June 2020) the Applicant was trespassing on private property and engaging in what the Police record describes as “anti-social behaviour”. There is no indication of what this behaviour might have been nor its degree of seriousness. The owner of one such property was alerted by some noise which turned out to be the Applicant somehow causing “damage to her rear shed”[12] – again the details are unspecified. The owner demanded the Applicant leave and he shouted abuse at her, apparently saying “[y]ou old white lady”. The owner and her children were frightened and hid in a bedroom while the Applicant continued to roam the property and went on to cause considerable damage to a motor vehicle on the premises. The Police were called and on arrival they located the Applicant some distance from the property. When they arrested the Applicant, he accused them of being racist, treating him like a “slave” and threatened them saying, “I remember faces and names. I will find you and fuck you up.” The Police report notes that the Applicant was “well affected by a substance believed to be alcohol.”[13]
[12] Ibid at 6.
[13] Ibid at 7.
The second instance (23 October 2020) involved the Applicant and a co-accused randomly assaulting a group of five men otherwise unknown to them in a public park. Several members of this group suffered punches to the head, face and stomach. There appears to be no motivation for this attack. There was no element of robbery associated with the offence. Once the men in question had retreated from the park, the co-accused pursued one of them until apprehended by another person and held until the arrival of the Police. The Applicant wandered off separately until he came to a house where another stranger, a lady, was sitting on her front porch smoking. From across the fence the Applicant “asked for a puff of her cigarette”. When this was refused the Applicant then struck the motor vehicle parked at the front of the residence causing a degree of damage. Upon arrest, the Applicant spat in the face of the arresting officer.[14]
[14] Ibid at 43-45.
In relation to both incidents the Applicant told the Tribunal that he had been drinking at the time but that otherwise he denied having any recollection at all of any of the details of either incident. He also stated that, while he had pleaded guilty to the charges arising from the second event, he had never seen the Police Fact sheet or any statement of agreed facts, had not been represented in court and believed that pleading guilty was the “quickest way to get out of court.”
EVIDENCE BEFORE THE TRIBUNAL
The Tribunal had before it the Respondent’s Statement of Facts, Issues and Contentions (SFIC) and two bundles of documents, those being the so-called G-Documents filed under section 501G of the Act and the Respondent’s Tender Bundle containing information obtained under summons from the Courts and law enforcement authorities relating to the Applicant.
On 24 December 2021 a Case Management Directions Hearing (Directions Hearing) was held before another Senior Member of this Tribunal at which the Applicant was directed to file with the Tribunal, on or before 21 January 2022 any material which he wished to have considered by it. By further direction the Applicant had until 15 February 2022 the opportunity to file any final material after final documents had been lodged by the Respondent.
Unfortunately, the Applicant did not avail himself of either opportunity to put before the Tribunal any written submissions which he wished to make or details of any witnesses he wished to call on his behalf. He admitted that this was entirely his fault, also claiming that he had misunderstood details of the relevant dates.
As a result, the only material provided, albeit indirectly, by the Applicant was his initial Request for revocation of a mandatory visa cancellation under s501(3A) dated 28 April 2021 and a Personal Circumstances Form of the same date.[15]
[15] G-documents at 35-37 and 38-51 respectively.
When questioned about this lack of submissions the Applicant agreed that he had been present at the Directions Hearing but that he had taken no steps to secure any additional material or to contact any of his family or friends to give testimony on his behalf.
None of this in any way prohibits the Tribunal from eliciting further information from the Applicant by way of taking evidence and cross-examination in the Tribunal hearing if the information to which the evidence pertains is already set out in the material before the Tribunal[16] and indeed the Applicant gave such sworn evidence.
[16] Act s 500(6H).
In his “Reasons for Revocation” document, the Applicant writes:
“Reason for my Revocation caused most of my family is here, I was raised here in Australia most of my childhood and there is more opportunity for me as a young man. I came to Australia when I was eight years old when my mother pass away and my auntie adopted my older sister and I. Coming to Australia was the best thing that ever happen to me. One year before my first charge I lost my father to kidney failure. I drop out of my TAFE course (cert 3 in heavy fabrication) due to corona virus. I was young and relentless and very remourseful for my action. I do take to account I was depress and I’ve seek concle to help me through depression. I’ll provide more in the future [as written].”[17]
[17] G-documents at 37.
In his Personal circumstances form the Applicant also indicates that there is other information about matters such as the possible impact on his family members of any negative decision in his appeal that he will “provide in the future”.[18]
[18] Ibid at 46.
Elsewhere in that form the Applicant writes:
“I was lost and depress. I kept it in wasn’t sharing my promblems to help. I’ve been talking to councle regarding my depression as well as I’m taking some course since I’ve been here, to help me to not reoffend and come back here.
I’m in process in doing courses.
I will not re-offend ever again. It was a big learning curb going to jail and coming here I’ve been doing courses and talking to the councle to help me.
I’m a law-abiding citizen pay my taxes in time. I was just lost and depress during them times. I’m really sorry and deeply remourseful for my action [as written].”[19]
[19] Ibid at 47 and 50. As written.
His documents also reveal that he has the following members of his family in Australia:
·Mr PD – uncle – Australian citizen – born 1960;
·Ms ND – auntie – Fijian citizen – born 1969;
·Ms SD – sister – Fijian citizen – born 1979; and
·PAD – “cousin sis” – Australian citizen – born 2011.[20]
[20] Ibid at 46.
The Applicant declares that, in relation to Fiji, “I have no family that can help me back home.”[21]
[21] Ibid at 50.
There is also a travel record for the Applicant which shows that since his first arrival in Australia in 2008, the Applicant has left the country on seven occasions, returning to Fiji and that he lived in Fiji from June 2013 to November 2017.[22] Throughout this latter 5-year period it was the Applicant’s testimony that he either resided with his grandmother (since deceased) or travelled around the Fijian islands with his biological father (also since deceased).
[22] Ibid at 52-53.
Apart from the sentencing remarks of the Court outlined above, there are a number of reports from Police and Correctional Centre sources which were explored in the Tribunal hearing. A number of those were put specifically before the Tribunal by the Respondent as being relevant for the purposes of this hearing:
·A Sentencing assessment report dated 3 December 2020 records that “Mr Dennis appeared to be proud to report that he had instigated the physical violence and appeared to consider that is aggressive behaviour was justified.” Further, “Mr Dennis was dismissive of the impact of his behaviour on the victims”. In his oral evidence the Applicant denied that these were accurate statements as to his attitude or beliefs but did agree with a further recorded entry that “Mr Dennis claimed to have no memory of his offending behaviour due to his level of intoxication.”[23]
·The same report states: “[h]e reported that despite experiencing memory loss on the night of the offences, he has since engaged in alcohol consumption which has resulted in his hospitalisation.”[24] These are matters which the Applicant denies outright.
·In an Intensive corrections order Reinstatement report dated 31 March 2021 it is reported that, “during discussions with the Custodial Management Case team [the Applicant] initially refused to attend the IDAPT [Intensive Drug and Assessment Program and Treatment] as he does not perceive his drug and alcohol intake to be problematic.”[25] Again this was denied in oral testimony and the Applicant indicated that he had commenced some alcohol-related course (details of which he could not recall) at the Detention Centre.
·The same report notes that, “[h]e reflected that he is ‘embarrassed’ by his actions and he has lost some family support due to his anti-social choices. Mr Dennis said he had brought ‘shame’ to his family and cannot return to his family residence, upon release.”[26] In his oral evidence the Applicant agreed that this was true for family members he described as his “cousins” but nevertheless said that upon release he would be able to live with is sister who would also provide him with financial and employment support.
·An Incident Detail Report dated 4 September 2021 at the Yongah Hill Detention Centre suggests that the Applicant made some sort of threat to “burn this place down, kingfisher compound”.[27] The Respondent, in their SFIC (at [54(f)]) suggests that this constitutes some form of threat. The Applicant in his oral testimony stated that this report misreports or constitutes a mishearing of what he said and reading the whole report in context the Tribunal is inclined to agree. The whole report suggests a conversation in which the Applicant is attempting to get away from the Kingfisher compound and get into “segro” (segregation) to access medical services and that the whole place is “sending us mad, don’t be surprised what happens next”. When pressed his answer suggests that the outcome of general frustration might be to burn the place down, not that he would himself contemplate doing that.
·NSW Department of Corrective Services Case Note Report dated 26 March 2021 records that the Applicant missed his three community corrections appointments because he was engaged with his mates in drinking “kava”[28] and that he also engaged in frequent use of the opioid buprenorphine (“bupe”) which he obtained from a mate on the opioid-substitution programme where it is used to treat heroin addiction.[29] In his oral evidence the Applicant initially denied any recent use of illicit substances but when pressed admitted to use of “bupe” to treat depression.
·Another set of such Case Notes dated 3 March 2021 records, “Ratu is from Fiji, though communicates quite well with English being his second language. he can speak and understand English well. Ratu is a lawful non citizen who holds a permanent visa to stay in Australia. He did advise he misses being around people from his Island culture.”[30] In oral evidence the Applicant agreed that he spoke the local Fijian language, although had not done so regularly in Australia but otherwise denied that he had any longing for or sense of loss of cultural affinity with Fiji.
[23] Tender Bundle at 67.
[24] Ibid.
[25] Ibid at 83.
[26] Ibid.
[27] Ibid at 235.
[28] A drink made from fermented root of the kava plant, with numbing alcoholic-like effect and of cultural importance in Polynesian societies. There are YouTube videos of both Queen Elizabeth II and Pope John Paul II drinking kava during official visits to Fiji.
[29] Tender Bundle at 138.
[30] Ibid at 128.
ANOTHER REASON AND MINISTERIAL DIRECTION 90
As set out above the Tribunal must determine whether or not there is another reason to set aside the mandatory visa cancellation but must do so within the general framework of Ministerial Direction 90.
Another Reason
Section 501CA of the Act provides, relevantly:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
In making a determination as to whether “another reason” exists, the Tribunal is bound by the provisions of section 499:
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
…
(2A) A person or body must comply with a direction under subsection (1).
Those binding directions are set out in Ministerial Direction 90 (MD90 or the Direction) which commenced to have effect on 15 April 2021.
MINISTERIAL DIRECTION 90
The Direction commences with a Preamble which applies to all parts of the Direction and establishes a number of guiding principles which provide a framework within which decision-makers should approach the task of deciding whether to revoke a mandatory cancellation under section 501CA of the Act.
In particular, the Direction provides inter alia that:
·being able to come to or to remain in Australia is a privilege conferred 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;
·non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia;
·there is an expectation that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct that raises serious character concerns, regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community; and
·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 for a short period of time.
Sub-paragraph 8.1(2) of Part 2 of the Direction starts with a general instruction for a decision-maker to consider the “nature and seriousness of the conduct”.
In terms of the “nature and seriousness of the conduct” the decision-maker is obliged to consider the extent to which the conduct involves crimes of a violent or sexual nature, crimes against women and children and acts of family violence. The decision-maker must also (inter alia) consider the frequency of the offending behaviour and whether it displays and trend of increasing seriousness, the cumulative effect of repeated offending and whether an individual has received prior warning about the consequences of further offending.
It is worth noting that the issue of “family violence” was introduced into MD90 as a major addition from the set of criteria which existed under its predecessor Ministerial Direction 79 (MD79). This reflects a clear statement of government/public policy that crimes of family/domestic violence and violence against women or vulnerable people are to be regarded as matters of exceptional seriousness.
The Direction then elucidates four primary considerations which should generally be given greater weight than the other considerations:
·protection of the Australian community from criminal or other serious conduct;
·whether the conduct engaged in constituted family violence;
·the best interests of minor children in Australia; and
·expectations of the Australian community.
Section 9 of Part 2 of the Direction provides that other considerations must be taken into account where relevant, which include (but are not limited to):
·international non-refoulement obligations;
·extent of impediments if removed;
·impact on victims; and
·links to the Australian community, including:
ostrength, nature and duration of ties to Australia; and
oimpact on Australian business interests.
The Tribunal is required to consider each of the items. However, it should be noted that there is ample High Court authority for the principle that it is up to the Tribunal itself to assess the weight which should be given to each of the respective criteria. Explicitly, the Court stated in SZJSS that: “[t]he weighing of various pieces of evidence is a matter for the Tribunal.”[31]
[31] Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [33]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41.
Once weight is assessed for each criterion, where there are competing assessments, and a balance to be arrived at, it becomes a matter of the Tribunal engaging in a process of “calculus” [32] to arrive at a final determination.
[32] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [52].
In most circumstances an applicant puts to the decision-maker (in this instance, the Tribunal) what are called “representations” in support of a decision to revoke the cancellation. These representations trigger both a process and set of responsibilities which the Tribunal must discharge.
These have recently been set out in a judgement of Logan J as follows:
A most helpful summary indeed of what is entailed in addressing a claim as made and thereby exercising the jurisdiction consigned to the Tribunal is to be found in the Full Court’s judgment in Minister for Home Affairs v Omar (2019) 272 FCR 589 (Omar). In short, what follows from Omar is:
(a)The decision-maker is obliged to “engage in an active intellectual process with significant and clearly expressed representations” made in support of the request for revocation: Omar, at [37].
(b)This obligation demands an honest confrontation with the human consequences involved with refusing an application for revocation: Omar at [38]; see also Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628, at [3] (Allsop CJ).
(c)Whether a particular matter raised in the representations is significant and clearly expressed so as to give rise to that obligation, is a question of fact: Omar at [34](i); or put another way, there must be “nothing ambiguous” about the claim or matter: Kwatra v Minister for Immigration [2021] FCA 58, at [36] (Burley J).
(d)Practically, the obligation requires more than acknowledging or noting that representations have been made. Depending on the nature and content of those representations, the Tribunal may be required to make specific findings by reference to relevant parts of the representations in order to discharge the obligation according to law: Omar at [39]; see also: QHRY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 827 (QHRY) at [43] – [47] (Rangiah J). [33]
[33] Batson v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1660 [12].
As already noted, the Applicant himself has put forth no submissions as to what might constitute “another reason” for the cancellation revocation and so the Tribunal proceeds on the basis of the material already discussed and other evidence given by the Applicant at the hearing and under cross-examination.
The Tribunal turns now to consideration of the criteria set out in Ministerial Direction 90.
PRIMARY CONSIDERATIONS
Protection of the Australian Community
The Tribunal must give consideration to:
(a)the nature and seriousness of the non-citizen's conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
In assessing risk, the Tribunal accepts that there is no such thing as an entirely risk-free guarantee of future conduct. The degree of risk is related to both the likelihood of reoffending and the potential gravity of such future offences.[34] Any such assessments must necessarily be speculative and weigh what an Applicant says about his or her own future conduct against what the evidence before the Tribunal suggests.
[34] Dharma and Minister for Home Affairs (Migration) [2018] AATA 2757 at [26]; Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 at [89]-[104].
The gravamen of the Respondent’s case lies in the fact that the Applicant has been convicted on two occasions of some 13 separate offences several of which involve acts of gratuitous violence perpetrated against strangers. There are also instances of damage done to motor vehicles (none apparently using a weapon or tool, all by hand) and a general record of (unspecified) anti-social behaviour.
The Respondent concedes that the Applicant’s offending behaviour was “not excessively frequent” and that the offences of June 2020 were “minor compared to the very serious December 2020 convictions”.[35] The Respondent then goes on to characterise the December 2020 convictions as involving very serious offences with an increasing level of seriousness. The Tribunal notes that none of the violent offences were committed against women or children, and although the Applicant behaved abusively towards Police (making threats and spitting) it does not appear that he was charged, let alone convicted of any offences against Police.
[35] Respondent’s SFIC at [46].
The Tribunal agrees that the Applicant’s offences were serious although it places them in the lower end of that range, noting that the Magistrate thought it safe enough for the sentences imposed to be served in the community.
It was upon the breach of the ICO (on three occasions related to curfews and failure to charge electronic monitoring equipment) that the community turned into a prison.
As to the risk of reoffending, this was assessed by Community Corrections as “T2/Low”.[36] The Respondent seeks to elevate this to a level of “moderate” on the basis of the Applicant’s repeat offending and on the basis of his behaviour at Yongah Hill[37] which the Tribunal has already considered and come to a somewhat different conclusion about.[38] In addition, the Respondent draws attention to a lack of support for the Applicant should he be released into the community and the lack of any diagnosis that the Applicant has actually suffered from clinically defined depression.[39]
[36] Tender Bundle at 68.
[37] Respondent’s SFIC at [55].
[38] At [36] of this decision.
[39] Ibid at [54(g)] and [54(c)] respectively.
Once again, the Tribunal is confronted with the difficulty which arises from a lack of submissions on the Applicant’s behalf. On the one hand there is evidence that the Applicant himself agrees he has forfeited some family support because he has brought “shame” on the family. On the other hand he claims that if released into the community he will reside with his sister and be provided with financial and employment support. He claims that his sister has a business (which he could not remember the name of) involved in the somewhat unusual combination of “beauty products and foreign exchange” (or in the alternate “online trading”) where he would be employed “transporting goods and services to the Post Office” for six days a week at the rate of $30.00 per hour. None of these arrangements can be verified and in the absence of any supporting evidence about these arrangements the Tribunal cannot accord them any significant weight in its deliberations.
Perhaps the most significant issue is the extent to which the Applicant addresses the obvious problems of his alcohol consumption. When asked directly by the Tribunal about his drinking habits the Applicant described them as essentially “a beer or two with mates at the end of the week, especially Friday.” That is simply not consonant with all the other evidence that the Applicant has a serious drinking problem which leads him to losing control, becoming aggressive and apparently even hospitalisation on at least one occasion. The denial of a problem, the initial resistance to the IDAPT programme and the failure to engage meaningfully with any alcohol-related programmes while in custody or detention gives the Tribunal no sense of confidence that the Applicant, on release, would not revert to the misuse of alcohol in a way which would eventually result in harm to others.
Apart from that issue, it was also apparent to the Tribunal that the Applicant lacked real insight into the nature of his offending behaviour. Throughout his evidence he referred to himself as being “young and relentless” as if this was a mitigating excuse; and he claimed he was depressed because of his lack of work which in turn was the consequence of the COVID-19 pandemic and its economic impact. At no stage did he accept a degree of personal responsibility nor did he express any genuine understanding of, or regret for, the harm inflicted on other people who he had assaulted or frightened. His expressions of remorse were formulaic and needed to be prompted by questions from the Respondent’s representative.
There is a real risk of reoffending on the part of the Applicant and that constitutes a real risk to the community.
This criterion must count quite significantly against the Applicant.
Family or Domestic Violence
It is worth noting that the issue of “family violence” was introduced into MD90 as a major addition from the set of criteria which existed under its predecessor MD79. This reflects a clear statement of government/public policy that crimes of family/domestic violence and violence against women or vulnerable people are to be regarded as matters of exceptional seriousness.
However, in this instance there are no allegations that the Applicant has ever been engaged in acts of family or domestic violence and so this criterion carries a neutral weight in the Tribunal’s considerations.
Best Interests of Minor Children
This is a somewhat more problematic issue in this application. The Applicant has no children of his own but he lists among his family members a “cousin sis” (PAD) who would be 10 years and some months old. The exact nature of his relationship with this young person is not clear but when pressed on the matter he indicated to the Respondent that he “did not want to get her involved”. Whether she is part of his family who have withdrawn support because of the “shame’ occasioned by the Applicant’s behaviour or whether she shares some other relationship with the Applicant is unclear. It does not appear that she is the daughter of his sister as his descriptions of that relationship and household did not include any such mention of her. The Tribunal notes it is sometimes unclear, when dealing with extended Polynesian family structures, exactly what relationships are being described by the use of labels such as “cousin”, “brother”, “sister” or “auntie”.
In any event, there is no evidence before the Tribunal which would allow it to come to any conclusions, one way or another, about the impact of the potential removal of the Applicant on this particular minor child and the Tribunal therefore treats it as having neutral weight in its deliberations.
The expectations of the Australian community
Sub-paragraph 8.4(1) of the Direction provides that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.
Sub-paragraph 8.4(2) also provides that non-revocation of the cancellation of a non-citizen’s visa may be appropriate simply because the nature of the character concerns or offences committed is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
That norm referred to in the Direction is to be understood as providing that:
·the Australian community expects non-citizens to obey Australian laws while in Australia;
·where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk they may do so, the Australian community expects the Australian Government to not allow such a non-citizen to enter or remain in Australia; and
·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 not continue to hold a visa.
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).
This consideration is about the expectations of the Australian community taken as a whole, and in this respect, decision-makers are required to proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).
This consideration has been the subject of extensive judicial discussion which is ultimately determinative.[40] That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in MD90 at paragraph 8.4. Although these principles are discussed in relation to the former MD79, those principles are relevantly analogous in principle with respect to MD90.
[40] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J.
It has further been held that the consideration is “[i]n substance … adverse to any applicant” in virtually all circumstances and was indeed, designed to be so.[41]
[41] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76] per Mortimer J.
There is nothing before the Tribunal which would allow it to do anything other than to accept that this criterion weighs against the revocation of the cancellation decision. However, as noted, the weight to be given to this (or any other consideration) is a matter for the Tribunal itself to determine.
In doing so the Tribunal has come to the conclusion that, considering all of the evidence, the weight accorded to this criterion should be limited.
“OTHER” CONSIDERATIONS
Having considered what the Direction designates as “primary” considerations, the Tribunal must turn to those designated as “other”. As Colvin J has made clear in Suleiman that,
[t]o treat the other considerations as secondary irrespective of its character in this particular case does not conform to the language of Direction 65.[42]
[42] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [28]. Ministerial Direction 65 was a precursor of MD90 and was operative from 23 December 2014 to 28 February 2019.
His Honour made it clear that the weight of “other” considerations could, in appropriate circumstances, overbear the weight of the primary considerations to the advantage of the Applicant.[43]
[43] Ibid at [26].
Colvin J’s statement was considered and not disapproved by the Full Federal Court in HSKJ[44] and more clearly supported by Wigney J in FHHM. [45]
[44] Minister for Home Affairs v HSKJ [2018] FCAFC 217 at [31]-[35].
[45] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775 at [21].
This principle has been affirmed in a number of Tribunal cases,[46] for example being made explicit in CFHQ where Deputy President Redfern, referencing Suleiman stated:
…factors set out in Direction 65 as ‘other considerations’ should be given appropriate weight, which may, in some cases, outweigh the primary considerations.[47]
[46] Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947 at [131]-[137].
[47] CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858 at [88].
In Tewhare the Tribunal made it clear that:
While affording to primary considerations more weight than the other considerations is generally the case, I am not precluded, in the context of any particular matter, from giving equal or greater weight to any consideration. As such, in an appropriate case, other considerations may, for instance, be given more weight than primary considerations.[48]
[48] Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875 at [50].
In CZCV the Tribunal stated:
When read in light of the Full Court’s comments in HSKJ, in the Tribunal’s opinion, it would be correct to state that although the Tribunal cannot elevate an other consideration to become a primary consideration, it can give greater weight to an other consideration over a primary consideration.[49]
[49] CZCV and Minister for Home Affairs (Migration) [2019] AATA 91 at [164]. As noted above, Ministerial Direction 65 (effective 23 December 2014 to 28 February 2019) is an analogous predecessor of Ministerial Direction 90 and the relevant parts are expressed in the same terms.
International non-refoulement obligations
The Applicant is a citizen of Fiji and has raised no issues or fears about a potential return to that country which touch upon his safety or physical well-being. No issues have been raised which would raise consideration of Australia’s international obligations under this criterion which is thus taken to have a neutral weighting in deliberations.
Impediments if removed
Fiji is one of those nations to which removal is a real possibility, so if the decision under review is affirmed the Applicant would not be facing the prospect of indefinite detention. It is likely he would be removed in accordance with sections 197C and 198 of the Act.
In his Personal Circumstances form the Applicant left blank the section which asked, “[d]o you have any concerns or fears about what would happen to you if you were to return to your country of citizenship?” He thus made no claims in this regard.
The Applicant is a young man with no apparent health concerns. He has a high degree of familiarity with Fiji having lived there for many years (including in the period from 2013 to 2017), speaking the language and being familiar with the culture and mores of the nation.
He has some skills in terms of employment in the sheet metal industry and has undertaken some degree of study in the field of heavy fabrication. There is no suggestion that he would not be able to find employment in Fiji.
Otherwise, the Applicant would be entitled to those levels of support and assistance which are available to all other Fijian citizens and he has no criminal record in that country.
The Tribunal accepts that what family the Applicant has are located in Australia and it would cause the Applicant distress to be separated from them. It would also be difficult for him to relocate to a different country and it is clear that he has little or no financial capacity to manage such a transition.
There is no doubt that the Applicant would suffer some impediments if removed to Fiji and that this criterion must count with some moderate weight in favour of the Applicant.
Impact of revocation upon victims
Sub-paragraph 9.3(1) of Direction 90 provides:
Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
In this instance there are no identified victims of the Applicant’s offences nor evidence of any proposed impact on them in these proceedings and so this criterion must carry a neutral weight in any deliberations.
Strength, nature and duration of ties to Australia
Paragraph 9.4.1 of Direction 90 requires decision-makers to have regard to the strength, nature and duration of a person's ties to Australia. This consideration has three elements:
(a)first, the Tribunal should have regard to the impact that a person's removal might have upon the person's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely (paragraph 9.4.1(1)); and
(b)secondly, the Tribunal should have regard to the person's broader ties to the Australian community, including by reference to how long that person has resided in Australia (although less weight should be attributed to this factor where a person commenced offending shortly after their arrival), how long the person has been contributing positively to the Australian community, and the strength, duration and nature of social ties with Australian citizens, permanent residents or people who have an indefinite right to remain in Australia (paragraph 9.4.1(2))
(c)thirdly there is a requirement (paragraph 9.4.2) to consider any impact on Australian business interests with particular reference (in an employment sense) on the delivery of a major project or important service in Australia.
Once again there is no evidence before the Tribunal to allow a clear assessment of this criterion. When asked whether there would be any impact on his family were the Applicant to be removed he replied, “I don’t know how but there would be for sure.” There are no submissions from family members and the issue of loss of support due to the “shame” element has been noted. The fact that there are no submissions does not however relieve the Tribunal of the obligation to consider the possible impact on family members of the Applicant’s removal.[50]
[50] CGX20 v minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs(No 2) [2020] FCA 1842 at [20].
The Applicant’s uncle and aunt live in Bendigo (Victoria) and there is no evidence that the Applicant is regularly in touch with them, although they are his “adopted” parents. The position of his sister and his “cousin sis” who live in Sydney have been mentioned but nothing further in their respect can be added under this criterion.
There is no evidence that the Applicant is involved in any community activities or organisations or has made any contribution to the community other than his legal obligations to pay his taxes.
There is nothing relevant to the consideration of Australian business interests.
The Applicant has lived for most of his life in Australia (13 of his 21 years) and thus must be taken as having some ties to the country. All the evidence pertaining to this criterion suggests that it should be given limited weight in favour of the Applicant.
ADDRESSING THE CALCULUS
The summary of the Tribunal’s findings on the criteria is as follows:
(a)Protection of the Australian community – against the Applicant to a significant degree;
(b)Family or domestic violence – of neutral weight;
(c)Best interests of minor children – of neutral weight;
(d)Expectations of the Australian community – against the Applicant to a limited degree;
(e)Non-refoulement obligations – of neutral weight;
(f)Impediments if removed – in favour of the Applicant to a moderate degree;
(g)Impact on victims – of neutral weight; and
(h)Ties to the Australian community – in favour of the Applicant to a limited degree.
DISCUSSION AND CONCLUSIONS
Of the eight criteria there are four which count neutrally in these deliberations, two which count against the Applicant (one significantly and one to a limited degree) and two in favour of the Applicant (one moderate and one limited).
The Applicant made a final statement in closing to the Tribunal asking for a “second chance”. This is not a request to which the Tribunal is indifferent, recognising the foundational nature of second chances in Australia’s history. [51] However, it cannot but be noted that the Sentencing Magistrate had already indicated that the Applicant had run out of chances when he appeared before him on the second occasion. The chance to get his life back on track was squandered by a clear disregard of the terms of a community corrections order which had been imposed by the Court, as an alternative to imprisonment, to allow him to do just that.
[51] Do and Minister for Immigration and Border Protection [2016] AATA 390 at [23].
What must be determinative is that the negative criteria are both those which are designated as “primary” and the two in favour are “other”. Section 7 of MD90 provides under the heading “Taking the relevant considerations into account”:
(2) Primary considerations should generally be given greater weight than the other considerations.
Even had all the criteria been taken without reference to primary and other considerations, those against, having been weighted as “significant” and “limited” would have overborne those in favour, weighted “moderate” and “limited”, although the Tribunal appreciates these are fine and subjective distinctions.
Nor is this to discount the authorities on the significance of “other” considerations but rather to indicate that in the calculus which must be made, the balance in this instance falls on the side which is against the Applicant.
In this respect, the Tribunal notes the decision just last month of a Full Bench of the Federal Court in which the principles laid down in Suleiman were considered at length. The Full Court considered “[t]he way in which the weighing process should be undertaken when it comes to other considerations being given greater weight than one or more primary considerations”[52] and believes that its approach is consistent with the guidelines provided therein.
[52] FHHM v Minister for Immigrations, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 per O’Callaghan and Colvin JJ, Derrington J agreeing.
In many ways this is an unfortunate decision in that the index events before the Courts were not at a particularly high level of seriousness; the Court itself preferred a sentence to be served in the community; the Applicant had no social or personal network of support and his breaches of his community correction orders were unfortunate and related to his (unmanaged) alcohol/kava use. As an unrepresented litigant, he failed to make any meaningful submissions to the Tribunal on his own behalf and indeed this is reflective of the fact that when given a (second) chance by the Court to take control of his own life he failed to take the opportunity presented to him. There are, inevitably, consequences to such choices.
All that said, the Tribunal must make its decision, bound as it is by the provisions of Ministerial Direction 90 and based upon the conclusion that there is not “another reason” for the visa cancellation to be revoked.
DECISION
The decision under review is affirmed.
I certify that the preceding 110 (one hundred and ten) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
......................................[sgd]..................................
Associate
Dated: 1 March 2022
Date(s) of hearing: 21 February 2022 Applicant: In person Solicitors for the Respondent: Ms A Zinn, Mills Oakley
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