Dick and Minister for Immigration and Border Protection (Migration)

[2016] AATA 590

Dick and Minister for Immigration and Border Protection (Migration) [2016] AATA 590 (11 August 2016)

Division	GENERAL DIVISION
File Number(s)	2016/2408
Re	Reuben Dick
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	N Isenberg, Senior Member Dr L Bygrave, Member
Date	11 August 2016
Place	Sydney

The Tribunal affirms the decision under review.

....................[sgd]....................................................

N Isenberg, Senior Member

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – mandatory cancellation of visa – application for revocation of cancellation decision – failure to pass character test – substantial criminal record – discretion to refuse applicant's visa – Ministerial Direction No 65 applied – protection of the Australian community – seriousness and nature of the relevant conduct – the risk conduct may be repeated – expectations of Australian community – familial ties to Australia – few impediments to removal – decision under affirmed

LEGISLATION

Migration Act 1958 ss 501(3A), 501CA(4)

CASES

Do and Minister for Immigration and Border Protection [2016] AATA 390

SECONDARY MATERIALS

Direction No. 65 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

N Isenberg, Senior Member and Dr L Bygrave, Member

11 August 2016

INTRODUCTION

1. Mr Dick is a 20 year old citizen of New Zealand. He arrived in Australia on 11 February 2009 as the holder of a Class TY Subclass 444 Special Category (Temporary) visa (Subclass 444 visa) accompanied by his parents and two siblings.

2. On 31 August 2015, Mr Dick’s visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act) after he failed to pass the character test when he was sentenced to a term of imprisonment[1] of more than 12 months.

   [1] As defined by s 501(12) of the Act.

3. On 8 September 2015, Mr Dick requested the Minister revoke the cancellation pursuant to s 501CA(4) of the Act. The Minister’s delegate declined to do so on 28 April 2016 and Mr Dick appealed this decision to the Tribunal.

4. The matter was heard in Sydney on 5 July 2016. Mr Dick attended the hearing in person and was unrepresented.

   BACKGROUND

5. Mr Dick has an extensive criminal record with over 60 convictions between 3 May 2010 and 19 August 2015.

6. Mr Dick’s criminal history records a number of violent offences and offences against law enforcement and other criminal justice officials. These include two instances of ‘Robbery armed with offensive weapon’, two instances of ‘Assault occasioning actual bodily harm’ offences, three instances of ‘Assault officer in execution of duty’; and convictions for ‘Aggravated assault with intent to take/drive motor vehicle – in company’, ‘Threaten/injure person for being judicial officer’ and ‘Assault law officer (not police officer)’. His offending also includes negligent and reckless driving, and damage to property.

   RELEVANT LEGISLATION AND ISSUES

   The power to revoke a visa cancellation

7. The Minister must cancel a visa that has been granted to a person (under s 501CA(3A of the Act) if the Minister is satisfied that the person does not pass the character test. A person is taken not to pass the character test if he or she has a ‘substantial criminal record’. A person who has been sentenced to a term of 12 months imprisonment or more has a ‘substantial criminal record’ as defined in ss 501(6)(a) and (7) of the Act.

8. As the applicant has a ‘substantial criminal record’, he does not pass the character test.

9. Under s 501CA (4) of the Act, the Minister (and therefore the Tribunal on review) has the discretion to revoke the original cancellation decision.

10. When considering whether to revoke the cancellation decision, we are required under s 499(2) of the Act to have regard to the guidance contained in Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction).

11. The Direction sets out the policy of the government and includes a number of introductory statements including the expectation that non-citizens will obey Australian laws and behave in accordance with Australian community values and standards if they wish to retain the privilege of coming to or remaining in this country.

12. The Principles set out in cl 6.3 of the Direction provide a framework to approach deciding whether to cancel a visa. Relevantly, the Principles include:

    (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 vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or 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 consideration may be insufficient to justify not cancelling or refusing the visa.

    …

    (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. [emphasis added]

13. The operational provisions of the Direction in relation to revocations of mandatory cancellations are found in Part C. Clause 13 identifies three primary considerations which must carry particular weight, although other considerations may also be relevant. We will deal with each of these considerations in turn.

    Protection of the Australian community

14. Clause 13.1(1) restates the government’s commitment to protecting the Australian community from harm at the hands of non-citizens. Clause 13.1(2) requires that we then focus on two concerns in particular. The first of these is the nature and seriousness of the applicant’s conduct to date.

15. The information before the Tribunal was that:

    (a)In 2011, Mr Dick was convicted of ‘Assault occasioning actual bodily harm’ and received a sentence of 12 months’ imprisonment. Also in 2011, Mr Dick threatened a judicial officer and received a sentence of two months’ imprisonment for this offence. He also assaulted a juvenile justice custodial official for which he was convicted of ‘Assault occasioning actual bodily harm’ and received a sentence of two months’ imprisonment.

    (b)In 2013, Mr Dick was part of a small group of males involved in the armed robbery of a man. At this time, Mr Dick was on probation as well as subject to a good behaviour bond. Mr Dick was convicted of ‘Robbery armed with offensive weapon’ and ‘Aggravated assault with intent to take/drive – in company’, and sentenced to a term of 18 months’ imprisonment in respect of each offence. The terms were to be served concurrently. Also in 2013, Mr Dick was convicted of ‘Police pursuit – not stop – drive recklessly’ and ‘Negligent driving’ for which he was sentenced to 12 months’ imprisonment.

    (c)In 2014, Mr Dick assaulted a juvenile justice custodial officer during the course of a search of his room at Cobham Juvenile Remand Centre and was convicted of ‘Assault law officer (not police officer)’ and sentenced to eight months’ imprisonment.

    (d)In 2015, Mr Dick, while on parole for his armed robbery offences, was charged with convicted of ‘Destroy or damage property (domestic violence)’, ‘Resist Officer in execution of duty’ and ‘Contravene prohibition/restrictions in apprehended violence order (domestic)’. He was placed under a two year good behaviour bond in respect of the first two offences. In respect of the last offence he was fined $400 and placed under a 12 month bond.

16. Mr Dick has received custodial sentences of 18 months for 26 offences. This reflects the gravity of Mr Dick’s offending, particularly as custodial sentences are probably less likely in the juvenile jurisdiction.

17. We are satisfied that the frequency and cumulative effect of Mr Dick’s criminal offending between 2011 and 2015, as well as the violent nature and seriousness of his offences, are a matter of serious concern.

18. We are also required to consider the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

19. In a statement filed with the Tribunal on 17 June 2016, Mr Dick took full responsibility for his lengthy criminal record and stated that ‘immaturity had a lot to do with [his] offending and behaviour’. A character reference provided by his aunt, Ms Kerry Flynn, dated 5 June 2016 said that Mr Dick ‘is very remorseful for the hurt he ha[s] caused the people around him and the shame he had brought to his family’ and that he is ‘ready to start living life as an adult in the world outside of detention’.

20. At the Tribunal hearing, Mr Dick was asked about the period between February 2015, when he was released on parole and August 2015 when his parole was revoked. He said that during this time he tried to keep busy and it ‘felt good to earn honest money’ through working intermittently as a casual labourer. He had sought to stay at home unless he was at work and to remove himself from friends who were a bad influence and likely to contribute to him reoffending. He claimed his mindset is now different and he is more mature; he wants to ‘put this behind [him] and move on’. It was while on parole, he conceded that he had commenced using ‘ice’, ‘big time’.

21. Apart from these statements by Mr Dick and Ms Flynn, however, there is little evidence before the Tribunal to suggest that Mr Dick is unlikely to commit further offences or engage in other serious conduct in the future.

22. Mr Dick has acknowledged that drug issues are the main cause of his offending. While Mr Dick attended rehabilitation programs (Getting SMART Program and Cognitive Self Change program) in 2014, he later stopped participating in an Alcohol and Other Drugs rehabilitation program.[2] A breach of parole report dated 29 April 2015 stated that Mr Dick ‘has to date expressed a reluctance to engage in any counselling or interventional programs aimed at addressing his criminogenic factors’ and further, that ‘he presented as ambivalent to a commitment to a long term program’.[3] A police report dated 12 June 2015 recorded that Mr Dick ‘displayed all signs of drug intoxication as he was agitated, his speech was slurred and his pupils extensively dilated’.[4] A pre-sentence report dated 19 August 2015 also observed that Mr Dick ‘admitted that his persistent unresolved addiction to marijuana, crystal methamphetamine and heroin has dominated his personal circumstances, his relationship for the last 7 years’.[5]

    [2] Supplementary Bundle document 7.

    [3] Supplementary Bundle document 10.

    [4] Supplementary Bundle document 18.

    [5] Supplementary Bundle document 15.

23. While Mr Dick told the Tribunal that he believes he can stay away from drugs, we are not satisfied that his drug issues have been resolved.

24. Given the history of Mr Dick’s serious offences, his long-standing drug use and his apparent disinclination to rehabilitate until recently, we cannot be confident that he will not relapse and reoffend should he be released into the Australian community.

25. The protection of the Australian community therefore weighs strongly against revoking the cancellation decision.

    The best interests of minor children in Australia affected by the decision

26. As there are no minor children in Australia affected by the decision, this primary consideration is not relevant to this matter.

    The expectations of the Australian community

27. The Direction says the Australian community expects non-citizens to obey the law. It also notes that the nature of the character concerns or offences are such that the community would not expect the decision-maker to revoke the cancellation.

28. The Direction does not refer to studies or other evidence which would enable us to formulate a precise view of public attitudes and values. We note a recent decision by the Tribunal in Do and Minister for Immigration and Border Protection (Migration) [2016] AATA 390 [at 23], with which we agree, which states:

    A decision-maker is, to some extent, required to guess at the community’s expectations… I must form my view having regard to contents of the Direction (which is, after all, a statement prepared by the community’s elected representatives), the sentencing remarks of the court and common sense. As I begin my deliberations, I assume the Australian community would be fair-minded and mature… The community would certainly not be vengeful. The applicant has already been punished for his offence, and the community would not want to see visa cancellation misused to inflict further punishment. I would also expect the community to be conscious of the length of time the applicant has lived in Australia and other circumstances which might assist the community to form a proper judgment about the individual and what should be done.

29. Mr Dick has lived in Australia since he was 12 years old. With his family, he moved from a small town in New Zealand and settled in Sydney. Mr Dick told the Tribunal that he met the wrong friends after starting high school, and began smoking cannabis and skipping school. From the age of 13 years, Mr Dick’s frequent criminal offences have become increasingly serious and violent. Given that drug use has been a cause of Mr Dick’s offending and there is no evidence that he has rehabilitated as he claimed, we cannot be confident that Mr Dick will not reoffend if he is released into the Australian community.

30. We are satisfied the community expectations would be that a person having Mr Dick’s significant and long-standing criminal history, and notwithstanding his professed rehabilitation, should not be permitted to remain in Australia. In those circumstances, we are satisfied the third primary consideration counts against the applicant.

    Other considerations

31. While the primary considerations carry particular weight, the Direction acknowledges (at cl 14) that other considerations might also be relevant.

32. There are no international non-refoulement obligations at stake in this case. We were not provided with any evidence about the impact of Mr Dick’s removal on any Australian business interests. There is no evidence of any impact on victims.

33. Mr Dick has familial ties to Australia. His parents and two siblings reside in Sydney, as does his mother’s extended family. He maintains contact with his father and sister, who visit him in Villawood. Ms Flynn has also visited him in Villawood. While Mr Dick mentioned a long-term girlfriend, he admitted during the hearing that this relationship was probably over as she had not visited him in Villawood. Notwithstanding Mr Dick’s claimed close family support and influence, he began offending at a young age and reasonably soon after he arrived. He has continued to engage in criminal conduct throughout his time in Australia. We are not satisfied his ties to Australia count strongly in his favour.

34. There are few impediments to Mr Dick’s removal from Australia. He told the Tribunal that his father’s family resides in New Zealand. Mr Dick is in good health. There is no reason to doubt he would be in a position to live and obtain work in New Zealand, particularly as he claimed to have acquired some work skills while he was on parole. There is also no reason to doubt he is eligible to use the social welfare and health care systems. There are no substantial barriers that would prevent him resuming his life in New Zealand.

    CONCLUSION

35. We have already indicated that the first and third primary considerations weigh heavily against Mr Dick. The other considerations, where relevant, do weigh in favour of Mr Dick, but the weight we give these considerations is low and do not outweigh the primary considerations. In those circumstances, it would not be appropriate to revoke the cancellation decision. The decision under review must therefore be affirmed.

    DECISION

36. The Tribunal affirms the decision under review.

I certify that the preceding 36 (thirty -six) paragraphs are a true copy of the reasons for the decision herein of

...........................[sgd].............................................

Associate

Dated  11 August 2016

Date(s) of hearing	5 July 2016
Applicant	In person
Solicitors for the Respondent	Australian Government Solicitor