Donaldson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2020] AATA 3389

Donaldson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3389 (4 September 2020)

Division:GENERAL DIVISION

File Number(s):      2019/5612

Re:Jabin Donaldson

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member Rebecca Bellamy

Date:4 September 2020

Place:Brisbane

The decision under review is affirmed.

.............................[SGD]...........................................

Member Rebecca Bellamy

CATCHWORDS

MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special category (temporary) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)

CASES

Afu v Minister for Home Affairs [2018] FCA 1311

FYBR v Minister for Home Affairs [2019] FCA 500; [2019] FCAFC 185

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337

Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548

Minister for Home Affairs v Buadromo [2018] FCAFC 151

Uelese v Minister for Immigration and Border Protection [2016] FCA 348

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIAL

Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

Member Rebecca Bellamy

4 September 2020

THE ISSUE BEFORE THE TRIBUNAL

1. The Applicant is a 44-year-old citizen of New Zealand. In 2003, at the age of 27 he relocated to Australia with his partner and their son.  

2. On 28 June 2017, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s TY444 Special Category (temporary) visa (“the visa”) under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and he was serving a full time custodial sentence.[1]

   [1] Exhibit G1, s 37 T-documents, T3, page 9.

3. The Applicant subsequently made representations and provided supporting material as to why that cancellation should be revoked.

4. On 7 August 2019, the Respondent decided not to revoke the cancellation.[2] On 8 September 2019 the Applicant lodged an application for review of that decision. The Tribunal has jurisdiction to review the decision pursuant to s 500(1)(ba) of the Act.

   [2] Ibid, T19, page 49.

5. The hearing of this application proceeded on 23 April 2020. The Applicant gave evidence by telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.

   LEGISLATIVE FRAMEWORK

6. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:

   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.

7. The Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[3]

   “…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[4]

   [3] [2018] FCAFC 151.

   [4] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).

8. There are therefore two issues presently before the Tribunal:

   ·whether the Applicant passes the character test; and

   ·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.

9. If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[5] I will address each of these grounds in turn.

   [5] Ibid.

   Does the Applicant Pass the Character Test?

10. The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.

11. In 2014, the Applicant was sentenced to six years imprisonment with a non-parole period of nearly three years. Accordingly, there is no doubt that the Applicant has a “substantial criminal record” as defined under s 501(7)(c) and therefore, he does not pass the character test. He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.

    Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?

12. In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.

13. For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 6.3 of the Direction contains several principles that must inform a decision maker’s application of the considerations in paragraphs 7 and 8.

14. Paragraph 7(1) of the Direction provides that:

    Informed by the principles in paragraph 6.3 above, a decision maker:

    …

    b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[6]

    [6] The Direction, sub-paragraph 7(1)(b).

15. Paragraph 8(1) of the Direction provides that:

    Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse or grant a visa to a visa Applicant, cancel the visa of the visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C...

16. Part C provides for the decision-maker to take into account “Primary Considerations”[7] and “Other considerations”.[8]

    [7] Ibid paragraph 13.

    [8] Ibid, paragraph 14.

17. The Primary Considerations are set out in paragraph 13.(2) of the Direction (contained in Part C) and they are:

    (a)Protection of the Australian community from criminal or other serious conduct;

    (b)The best interests of minor children in Australia; and

    (c)Expectations of the Australian community.

18. The Other Considerations are set out in paragraph 14(1) of the Direction (contained in Part C) and they are:

    (a)International non-refoulement obligations;

    (b)Strength, nature and duration of ties;

    (c)Impact on Australian business interests;

    (d)Impact on victims; and

    (e)Extent of impediments if removed.

19. I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[9]

    “…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[10]

    [9] [2018] FCA 594.

    [10] Ibid at [23].

20. The principles set out in paragraph 6.3 of the Direction, that should inform the decision-maker’s application of the primary considerations and other considerations are summarised as follows:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;

    (2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;

    (3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or 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;

    (5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;

    (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 be allowed to come to or remain permanently in Australia; and

    (7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.

    THE APPLICANT’S BACKGROUND AND OFFENDING HISTORY

    Offending in New Zealand

21. In June 1993, the Applicant committed the offences of assault police (x2) and wilful damage (x4). He said he had just turned 17 and was drunk with a friend. They smashed a car window, the police attended, they argued with the police, damaged a window on the police car and got blood on the seats of the police car.[11] He said he stood on a police officer’s arm, and could not recall committing a second assault police, saying that the two charges must have been a duplication.[12] A supervision order was imposed for those offences.

    [11] Exhibit G1, s 37 T-documents, T37, page 447.

    [12] Transcript page 46, lines 10 to 21.

22. On two occasions in 1994 the Applicant committed common assault, and for these offences he was sentenced to 100 hours of community service. He subsequently breached that community service order by committing theft in December 1994. He was sentenced to four months of periodic detention.[13] In early 1995 he committed another theft, for which he was fined.

    [13] Exhibit G1, s 37 T-documents, T40 page 465.

23. The Applicant offended on 11 more occasions in 1995, committing the following offences:

    ·“Unlawful Takes Motor Vehicle”;

    ·assault police;

    ·assaults with intent to injure, and wilful damage (x2);

    ·“Unlawful Takes Motor Vehicle”; and “Burgles (Oth prop) ($500-$5,000) By Ngt”;

    ·“Burgles (Oth prop) ($500-$5,000) By Ngt”;

    ·“Burgles (Oth prop) ($500-$5,000) By Day”;

    ·obstruct/hinder police;

    ·wilful trespass;

    ·enters with intent, and wilful damage;

    ·common assault, and breach of parole; and

    ·common assault.

24. For the offences committed in the first six sentencing episodes, the Applicant was sentenced to three months of corrective training. For the offence of obstruct/hinder police, he was fined $100.

25. For the offences committed in the last four offending episodes, he was sentenced to various terms of imprisonment ranging between 14 days and two months. He said the sentence of two months’ imprisonment, for common assault, related to a fight that he got into at a party and another fight that he got into at a service station.[14]

    [14] Ibid, T37, page 447.

26. During 1997 and 1998 the Applicant committed the following offences: possess counterfeit note, possession of cannabis, receives property ($500-$5000), receives property (under $500), and “Wilf Break Glass Pvt Pla No Consent”.  He was given non-custodial sentences for these offences.

27. In 2000 and 2001, the Applicant committed the following offences: disorderly behaviour and resist police, wilful damage and possess cannabis, resist police, theft property (under $500), possession of cannabis and disorderly behaviour. He was sentenced to fines and community service.

28. With respect to the Applicant’s traffic history between 1994 and 2002, the Applicant committed the following traffic infringements:

    ·drove dangerously causing death or injury;

    ·drove a motor vehicle in a dangerous manner (x3);

    ·drink-driving (x2);

    ·operated a vehicle carelessly; and

    ·drove while disqualified (x2).

29. The penalties imposed for these offences included – in addition to disqualification from driving – periodic detention, short terms of imprisonment, community service, and a six-month suspended sentence.

30. In relation to “drove dangerously causing death or injury”, before the Tribunal is a copy of a newspaper report dated 4 October 2001 relating to the Applicant, entitled “Judge accepts man’s effort to be a better parent”.[15] The article quotes the learned sentencing Judge as saying “This chapter of dangerous driving was as horrendous as it was sustained”. The report contains the following information about the offending and the court proceedings:

    ·     the Applicant was driving a borrowed vehicle at speeds exceeding 80 km/h in 50 km/h zones. Police chased but failed to catch him;

    ·     a short time later he made a right turn at speed forcing a woman to jump out of the way. He ran over her toe and she fell over. He then sped off. She sustained heavy bruising;

    ·     he made another turn at speed, lost control of the vehicle, skidded to a stop on a footpath, then sped off again;

    ·     later that day police again pursued him before he skidded to a stop at a petrol station. He had been drinking; and

    ·     he was described as “belligerent, abusive and struggled so hard that he had to be handcuffed”.

    [15] Ibid, T42 page 470 to 474

31. The learned sentencing Judge noted that the Applicant had five previous convictions for resisting and obstructing police, two previous dangerous driving convictions and one conviction for driving with excess breath alcohol. The Judge noted that the Applicant had said that he was “totally ashamed” and that he was genuinely motivated to stop offending. The prosecutor told the court the Applicant had sole custody of his four-year-old son. His Honour imposed a sentence of six months imprisonment fully suspended for two years, a community service order, and he disqualified the Applicant from driving for two years. For drink driving he was sentenced to 60 hours of community service.[16]

    [16] These sentences were imposed in April 2001. See Exhibit G1, s 37 T-documents, T40 page 468.

32. In the hearing, the Applicant agreed with most of the facts of the offending that were reported in the newspaper article.[17] However, he denied having lost control of the vehicle or having driven onto a footpath. He also said that he had not consumed alcohol during the police chase but had consumed alcohol afterwards before the police later apprehended him. I am satisfied that, as reported, the Applicant was speeding, he evaded police, he ran over a woman’s foot and kept driving, that when he was eventually apprehended by police he had been drinking and that his behaviour towards police was as described. I am satisfied, based on his conviction, that he drove dangerously and caused injury. I am further satisfied that the rest of the newspaper article, save for the parts disputed by the Applicant, are accurate.

    [17] Transcript, page 47.

33. Sixteen months later (in August 2002), during the period of the suspended sentence and the period of his disqualification from driving, the Applicant committed a further driving offence, being “drove a motor vehicle in a dangerous manner”.

    Relocation to Australia

34. In July 2003, while on bail for that offence and for driving while disqualified, the Applicant relocated to Australia. In an incoming passenger card completed by the Applicant, he answered the question “Do you have any criminal convictions?” by ticking the “No” box.[18] In a written statement that is before the Tribunal, the Applicant said he could not remember what he thought when he filled in the card, and that he must have panicked when he saw the question about his criminal history and that it was likely that he answered “no” to avoid being asked awkward questions about his past.[19] In the hearing the Applicant told the Tribunal that he felt he answered “no” because of:

    “…the fear of not being allowed to be – to go to Australia and to try and change my life, try and make a fresh start, getting away from bad relationships…”[20]

    [18] Exhibit G1, s 37 T-documents, T41 page 469.

    [19] Ibid, T36, page 438.

    [20] Transcript, page 49, lines 20 to 22.

35. The Applicant said that he moved to Australia for multiple reasons including better work opportunities and a desire to have a fresh start away from the trouble he kept getting into in New Zealand.[21] When asked if he left New Zealand to avoid the charges against him, the Applicant denied knowing that there were charges against him (which is consistent with representations he previously made in his statement dated April 2019).[22] I find this implausible given the Applicant’s extensive prior experience with the criminal justice system in New Zealand. I find that the Applicant left New Zealand knowing that he was facing charges for offences that were committed in breach of a suspended sentence of imprisonment, and that he knowingly concealed his criminal history from the Australian authorities because he did not want to be denied entry to Australia.  

    [21] Exhibit G1, s 37 T-documents, T37, page 448.

    [22] Ibid, T36, page 438. See also, Transcript page 48 line 44.

    Offending in Australia

36. The Applicant has a lengthy history of traffic infringements in Australia, spanning October 2003 to October 2013. His infringements include:[23]

    [23] Exhibit R1, Summonsed Records, page 14 to 15.

    ·fail to keep left of double continuous dividing lines;

    ·exceed speed limit in speed zone by more than 40 km/h;

    ·exceed speed limit in speed zone by more than 30 km/h (x3);

    ·exceed speed limit in speed zone by more than 20 km/h;

    ·exceed speed limit in speed zone by more than 13 km/h (x4);

    ·drive defective vehicle (x2);

    ·an incident where the Applicant failed to stop at a red light, failed to signal his intention to change direction several times, and failed to stop at a stop sign;

    ·unlicensed driving (x2);

    ·fail to stop at a red traffic arrow;

    ·disqualified driving; and

    ·driving while using a hand-held mobile phone.

1. On 3 June 2012, the Applicant committed an armed robbery at his ex-partner’s place of work. He was subsequently convicted of “robbery whilst armed or pretending to be armed with an offensive weapon or instrument/in company/violence/wound” after pleading not guilty. On 7 October 2014, he was sentenced to imprisonment for six years with a parole eligibility date of 15 September 2017. The sentencing remarks include the following:[24]

   “The offence occurred on a Sunday morning at about 8 am in Fortitude Valley. You must have known the routine at the Royal George Hotel. You have or had a relationship with the mother of your son, who had worked there, and it is likely that from her you deduced the routine of the hotel. I don’t suggest that there is reason to assume she was aware of your intention to commit an armed robbery. You removed the number plates from the car of your girlfriend, another woman. You drove it to the hotel car park and parked outside. You were disguised, wearing a hooded jacket and a mask. You went in with a knife. You approached the complainant from behind and slid the knife over her left shoulder. You said, “It’s okay. I’m not going to hurt you. Just put the money in the bag.” She was at the time, as you must have known, counting the takings from the night before and placing them in a bag. It yielded $63,900. You took the money, ran out and drove away.

   …the young woman from whom you took the money has been significantly affected since. She has been seeing a psychologist and a psychiatrist…. Fortunately, she was not physically harmed and I am sure you had no intention to physically harm her. You have left her significantly psychologically damaged. She has not been able to work in hospitality or return to it and it is now more than two years since the offence. It’s so affected her that she attributes the changes in her – the anxiety and worry that she feels and her nightmares – to the break-up of her relationship with her boyfriend at the time. She has been receiving WorkCover payments because she cannot return to her former occupation.

   …

   Other matters I should mention, because they have been the subject of submissions, are these: the prosecution submitted that it’s also a relevant feature, related to the degree of sophistication of the offending, that you split up the money afterwards in a way that might have made detection more difficult. You gave some to the mother of your child, you gave some to your girlfriend, who was expecting your child. You spent some and gave some to your friend.”

   [Underlining added]

   [24] Exhibit G1, s 37 T-documents, T21, pages 70 to 73.

2. The Applicant appealed against his conviction, and his conviction was upheld. The appeal judgement contains a detailed summary of the evidence.[25] It is readily apparent that the prosecution case was strong. For present purposes, the following evidence is significant:

   [25] Exhibit G1, s 37 T-documents, T22, page 73 to 90.

   ·the Applicant denied that he was the offender and he gave an alibi, which was that he was at his mother’s house at the time of the robbery (which was around 8am);

   ·several witnesses gave evidence in support of his alibi:

   o   his ex-partner (Shannon) gave evidence that she was living at the house at the time and that she recalled hearing the Applicant’s voice at the house early that morning. This was in contrast to what she told the police the day after the robbery, being that she had not seen the Applicant for a long time;

   o   his mother gave evidence that she saw him in her home at around 8am;

   o   his son gave evidence that he heard the Applicant’s vehicle pull up at approximately 6:30am, he watched a movie with the Applicant, and the Applicant left around 10am. This was in contrast to what he told the police the day after the robbery which was that he did not have much contact with his father. He told the police at that time that he would not lie for his father; and

   o   the Applicant’s brother-in-law said he drove the Applicant to his parents’ house at around 6.30am and that around 10:00 or 10:30am he drove him back to his girlfriend’s house;

   ·     in the days following the robbery, the Applicant cut his hair and put new “mags” (wheels) and new seat covers on his girlfriend’s car, which was the car he used to travel to and from the venue that he robbed;

   ·     at 6:14pm on 5 June the Applicant was recorded on CCTV entering the Treasury Casino in a vehicle that had been hired by Shannon. The vehicle left at 8:20pm;

   ·     still photographs showed the Applicant in a strip club later on the night of 5 June. Two employees, Ms C and Ms Z, told police that on 5 June, a customer told them that he had committed the armed robbery. They gave the following evidence in the trial;

   o   Ms C described the customer’s appearance and related a conversation in which the customer had asked if there were any cameras or recording devices in the room before discussing aspects of his personal life and asking her if she had watched the news the previous night. He told her he had robbed the RG (Royal George Hotel) and “held a lady at knife point”. He said he got around $60,000. She denied that he had shown her any footage of a news broadcast about the robbery. The following day she found a report of the robbery on the Internet which stated that there was a male involved who had held a woman at knife point; and

   o   Ms Z said that Ms C had told her it was worth talking to the customer and his friend because they “had money on them”. She said the customer told her he “did an armed robbery at the RG”, and that he had taken $60,000 with a knife. He said it was done in a red hatchback car but on the newsfeed the car was described as orange. He said the car was his girlfriend’s car. Ms Z did not recall the customer taking his phone out and showing her any pictures. She recalled the customer telling her he had to go to and see his bank manager which he said referred to a bag of money in the boot of a car down the road.

   ·     CCTV footage showed Shannon in a hotel on Mary street in the Brisbane CBD on 6 June. She was recorded using the lift to travel between floor 40 to the basement and vice versa on that day and the following day. The Applicant admitted that he had stayed at that hotel on 6 June. He said he had stayed there on numerous occasions and that sometimes Shannon would book the hotel and sometimes he would book the hotel;

   ·     on 7 June, the Applicant and his brother-in-law drove to Sydney. While there, he asked his girlfriend to fly to Sydney and bring her passport. In Sydney he asked her to open two bank accounts and deposit $4900 in each, and she did;

   ·     while in Sydney they booked flights to New Zealand for travel on 8 June. The Applicant’s son and Shannon (his son’s mother) also had tickets for flights to New Zealand on 8 June; and

   ·     the Applicant and his girlfriend did not catch their flight in Sydney on 8 June. They drove to Melbourne the next day and booked flights to New Zealand. However, they were stopped by customs officials at the airport.

3. In the present proceedings, the Applicant admitted that he committed the armed robbery. At the hearing he admitted that the alibis provided by his son and brother-in-law were untrue, although he later said they did not lie, but that “they told what they remembered”.[26] He said his mother had seen him at her home at around 7.30am on the morning of the robbery.[27] I am satisfied that her evidence – that she saw him at around 8.00am – was untrue. I reject the contention that the Applicant’s son, mother, and brother-in-law gave evidence of what they remembered, and I find that they knowingly gave false evidence in support of the Applicant’s alibi.     

   [26] Transcript, page 67, line 36.

   [27] Transcript, page 60, line 22.

4. The Applicant gave evidence that he did not slide the knife over the shoulder of the victim,[28] and that he had not put the knife “anywhere near her”.[29]  He denied that he had told Ms C or Ms Z that he had held a woman at knifepoint. He claimed that he had shown them footage of a news report of the robbery in which it was reported that the robber had held a woman at knifepoint and this is why they said he told them he robbed a woman at knifepoint.[30] He said he had been at the strip club with his stepfather to celebrate his stepfather’s 60^th birthday.[31]

   [28] Transcript, page 31, line 12.

   [29] Transcript, page 30, line 45.

   [30] Transcript, page 34 line 27 to 30.

   [31] Transcript, pages 35 to 37.

5. The Applicant gave evidence that he had not meant to make the victim of the robbery feel threatened. He said “I’d never, ever threaten or cause any harm to anyone else”.[32] In light of the fact that the Applicant was holding a knife and demanding that the victim give him the night’s takings, I reject his evidence, and I find that he certainly did intend to threaten the victim by holding a knife where she could see it.

   [32] Transcript, page 30, lines 37 to 38.

6. The Applicant was asked why he travelled from Brisbane to Sydney after the armed robbery to which he replied:

   “I was with my girlfriend at the time and she had time off work and, yes, we were travelling. We decided we wanted to go to New Zealand. I decided I wanted to go to New Zealand as soon as I found out my son was going there, so we were going to make a holiday out of it.”[33]

   [33] Transcript, page 58, lines 25 to 30.

7. He had previously given evidence that Shannon had told him that she and their son were flying to New Zealand. He was asked why he then drove from Sydney to Melbourne. He said:

   “Because I missed the plane in Sydney and, then, so therefore we couldn’t book another one until the next day. So we decided we would drive down to Melbourne.  I’d never been to Melbourne before.

   …That was my first time in Sydney and I – because we were going to – we missed that plane, so then we decided we would hire a car and drive to Melbourne, catch a plane from there, but we were going to stay the night in Melbourne.[34]

   [34] Transcript, page 58, lines 37 to 47

8. This explanation does not make sense as the time taken to drive to Melbourne significantly reduced the time the Applicant had available to spend in Melbourne, and the Applicant had the financial means to fly. The Applicant’s conduct in driving, rather than flying, to Sydney and then driving, rather than flying, to Melbourne is unusual and the Applicant has not provided a plausible explanation for it. The same can be said of his driving, rather than flying, from Brisbane to Sydney on 7 June. The Applicant’s movements appear to have been designed to evade law enforcement, and in the absence of reliable evidence to the contrary, I find that they were.  

9. In the nine years since the Applicant had moved to Australia, he had never travelled back to New Zealand. However, within days of committing the armed robbery he booked flights to New Zealand. The Applicant denied that he was intending to flee Australia.[35] He said he had booked a return airfare to Australia and this was proven in his bail hearing and that he was granted bail.[36]  There was no independent evidence of a return flight before the Tribunal, although the Applicant was granted bail as he claimed. In any event, if the Applicant did book a return flight, that does not necessarily mean he intended to use it. I find that his planned travel to New Zealand was at least partly motivated by a desire to evade law enforcement.

   [35] Transcript. Page 59, lines 1 to 3.

   [36] Transcript, page 37, lines 26 to 31.

10. I am satisfied that the Applicant committed the armed robbery as described in the sentencing remarks. Whether he slid a knife over the victim’s shoulder or held it at a distance away from her, the fact is that he used a knife to intimidate the victim into complying with his demands. I am further satisfied that in the days following the robbery he did several things to avoid being caught, including altering his appearance and the appearance of the car he had used, depositing some of the proceeds of the robbery in bank accounts in his girlfriend’s name, driving to Sydney and then to Melbourne, and booking a flight to New Zealand. Further, while he told the Tribunal that he did not ask anyone to lie for him,[37] several of his family members did lie to police, and three gave false evidence that supported his alibi. I find that he had some involvement in his family lying for him. I am further satisfied that two days after committing the armed robbery, the Applicant bragged to Ms C and Ms Z about it. 

    [37] Transcript, page 67, lines 35 to 36.

11. The Applicant told the Tribunal that he did not realise that pleading not guilty would mean the victim would have to give evidence in court. He said he had not thought about it and did not understand the situation.[38] I find it implausible that he did not expect that the victim would have to give evidence given that: he had legal representation; he and several members of his family gave evidence; and the victim was a key prosecution witness. I am satisfied that the Applicant was never in any doubt that he was guilty of the offence charged and that he knew that if he pleaded not guilty, the victim would likely have to give evidence about what he did to her.

    Relocation to New Zealand

    [38] Transcript, page 60, lines 40 to 47.

12. While the Applicant was on bail for the armed robbery, he breached his bail once, he used a hand-held mobile phone when driving, and on two occasions he exceeded the speed limit by at least 30km/h.[39] After he was convicted, he served his sentence without any incidents or breaches.[40] He was granted parole the first time he applied. By then his visa had been cancelled. Rather than staying in Immigration Detention, in October 2017, he returned to New Zealand while he sought to have his visa cancellation revoked.[41]

    [39] Exhibit R1, Summonsed Records, page 14.

    [40] Exhibit G1, s 37 T-documents, T30, page 193.

    [41] Ibid, T35, page 433.

13. The Applicant said he made that decision to avoid being a burden on the Australian taxpayer.[42] He said he held various jobs there and I have no reason to doubt that evidence. I accept that the Applicant went to New Zealand with the aim of obtaining gainful employment and helping his family rather than being a financial burden on the Australian community.

    [42] Transcript page 52.

14. After arriving in New Zealand, the Applicant was arrested for breaching bail in 2003 and for the outstanding traffic offences. He pleaded guilty and was sentenced for those. There is no evidence that the Applicant has offended since returning to New Zealand and I am satisfied that he has not.   

15. At the hearing in April 2020, the Applicant said he had a wife and baby in New Zealand. He said he met a Brazilian lady in August 2018, married her in October 2018, and they had a six month old baby.[43] None of the materials that were provided by the Applicant, including a statement by him dated 26 April 2019,[44] mention his wife. In fact, in that statement he said:

    “My partner Shannon and I have gradually drifted apart over the last six months.  We have been struggling with the long-term separation for some time and it has taken a toll on our relationship. She came to New Zealand recently to visit her mother but we didn’t see each other…Our romantic relationship is over.”[45]

    [Underlining added]

    [43] Transcript, pages 16 line 47 to page 17 lines 1 to 2.  

    [44] Exhibit G1, s 37 T-documents, T37, page 451.

    [45] Ibid, page 451, paragraph 40.

16. Shannon was the Applicant’s long-term partner, the mother of his adult son. The Applicant admitted in the hearing that she had moved to New Zealand in February or March 2018.[46] Therefore, at the time the Applicant indicated he and Shannon started drifting apart because of distance, he was married to another woman and Shannon was living in New Zealand.       

    [46] Transcript, page 15, lines 19 to 23.

17. Since the Applicant has been back in New Zealand, his mother, son and other family members have visited him. He remains in contact with his family in Australia.  

    PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY

18. In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

19. In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to 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.

    The Nature and Seriousness of the Applicant’s Conduct to Date

20. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:

    (a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

    (b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

    (c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or Government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

    (d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;

    (e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

    (f)The cumulative effect of repeated offending;

    (g)  Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

    (h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);

    (i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.

21. The Applicant has an extensive record of offences and traffic infringements in New Zealand. He has committed two criminal offences and numerous traffic infringements in Australia.

22. The Applicant has committed numerous violent offences, including several in which he assaulted police officers in the execution of their duty. He admits to, on one occasion, having stood on a police officer’s arm. The imposition of a custodial term is normally a measure of last resort in the hierarchy of sentencing options available to a sentencing court, and the Applicant was, on many occasions, given the benefit of non-custodial sentences including fines, supervision, community service and non-residential periodic detention for his offending, including the violent offences. The Applicant was under the age of 20 at this time and it is reasonable to infer that his relative youth attracted some lenience. However, in late 1995, he was sentenced to two months imprisonment for an assault. 

1. In 2001, while evading police while driving the Applicant ran over a woman’s foot causing severe bruising. I accept that he did not intend to harm the woman, but he did harm her while engaging in illegal behaviour. This is a violent offence against a woman. The learned sentencing Judge said of the Applicant’s offending: “This chapter of dangerous driving was as horrendous as it was sustained”. Having been informed by the prosecutor that the Applicant had sole custody of his four-year-old son and having accepted that the Applicant was genuinely motivated to stop offending, the Judge imposed a six-month suspended sentence of imprisonment. Such a sentence, albeit suspended, reflects serious offending.

2. The armed robbery committed in 2012 represents a sharp increase in the seriousness of the Applicant’s offending. It also represents a return to offending (if one disregards the traffic offences) after a 10-year break. This was an offence that was premeditated and involved a lethal weapon. While the Applicant denied that he would have harmed the victim, objectively there was an obvious implied threat that he would use the knife to harm her, and as such this is an offence of violence. Further, it was committed against a young woman.

3. In the victim impact statement that the victim provided two years and three months after the offence,[47] she said that at the time of the offence she felt scared for her life and that afterwards she was worried about what would happen if the Applicant came back. She said the offence significantly impacted her physically, emotionally, financially, psychologically, and in terms of her relationships and her work. She said she had lost a significant relationship (with her boyfriend) because of depression, anger and stress. She lost trust in people, particularly strangers, limiting her ability to go out and engage with people. She said because she was on WorkCover, rather than the income she had before the offending, she could not get a lease and as a result she had not had stable housing for some time.  She experienced flashbacks for a long time and would lock herself in the bathroom on occasion because she felt so scared. Leading up to the court case she suffered from panic attacks. While reviewing her police statement she had a “breakdown” that resulted in her self-harming and being hospitalised. She needed help from a psychologist, a psychiatrist, and her GP on a regular basis for emotional support, medication and in relation to her fitness for work. She stated she was diagnosed with post-traumatic stress disorder, and adjustment disorder with mixed anxiety and depressed mood. She was unable to return to work in the hospitality industry. She was still suffering from depression, anxiety and nightmares. At the end of her statement she wrote:

   “THIS ACT OF VIOLENCE HAS RUINED MY LIFE!”.

   [47] Exhibit R1. Summonsed Bundle, pages 20 to 22.

4. It appears from the sentencing remarks, that the victim impact statement was not challenged, and it was accepted by the learned sentencing Judge. I accept that the offence affected the victim as described in her victim impact statement. The lengthy sentence of imprisonment (six years) and the lengthy non-parole period (nearly three years) indicates that the court considered this to be very serious offending.

5. There is little evidence before the Tribunal about the impact of the numerous assault offences committed by the Applicant in New Zealand. However, it is reasonable to infer that physical harm, and possibly psychological harm, was caused to several victims. Further, assaulting police officers in the execution of their duty is a direct challenge to the lawful authority that governs the community. Attacking those persons who are performing their duty to protect the community from crime is very serious indeed.

6. The Applicant’s offending in New Zealand was frequent and persistent. He continued to offend despite intervention from the criminal justice system, and even re-offended after persuading a Judge that he was genuinely motivated not to re-offend. After moving to Australia, he continued to commit traffic offences. His traffic infringements in New Zealand and Australia involved excessive speeding, dangerous driving, failure to obey traffic signals, drink driving and driving without a licence or while disqualified. Less than 18 months after moving to Australia, the Applicant was caught crossing double lines and (in a separate episode) driving at more than 40km/h over the speed limit. He engaged in this behaviour knowing that in New Zealand he had run over a woman’s foot and injured her as a result of reckless driving. The Applicant went on to commit more offences that are of a kind that put the safety of other road users at risk, e.g. speeding over 30km/h over the limit, and failing to stop at a stop sign.

7. The Applicant also committed some trespass, theft and wilful damage offences in New Zealand. These offences indicate a lack of regard for other’s people’s property and they are serious given the impact on the owners of property that is stolen or damaged.

8. The Applicant provided false and misleading information on his incoming passage card when he relocated to Australia. He deliberately stated that he did not have any criminal convictions. He did that because he thought that if he revealed his convictions, he might not be allowed to enter Australia. Concealing evidence of bad character so the Australian authorities cannot make an informed assessment of whether to allow a person to enter Australia is conduct that strikes at the heart of the immigration system. It undermines the Australian Government’s ability to protect the Australian community from harm. Further, the Applicant was also misleading about his family ties to New Zealand in the statement he provided to the Respondent in April 2019 – omitting the fact that he was married and living with his wife in New Zealand. Omitting information that is relevant to the Direction undermines the Respondent’s ability to apply s 501CA(4) of the Act.

9. I do not consider factors (h) or (i) of paragraph 13.1.1(1) of the Direction apply in this matter.

10. The rest of the sub-paragraphs of paragraph 13.1.1(1) of the Direction, in their totality, weigh very heavily against revocation of the reviewable decision.

    The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

11. Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:

    ·paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    ·paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.

    The Nature of the Harm to Individuals or the Australian Community were the Applicant to Engage in Further Criminal or other Serious Conduct

12. The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.

13. The nature of harm should the Applicant commit further armed robberies includes harm in many forms to any victim present at the robbery. As the victim’s statement illustrates, she suffered psychological harm which in turn caused harm to her relationships (with her boyfriend and friends) and limited her ability to earn income and thus maintain stable accommodation. The armed robbery impacted her boyfriend who was not even present because of the impact it had on her. Those who are close to a victim of an armed robbery are potentially impacted psychologically and financially. Financial harm is caused to the victim whose property is stolen and possibly their family or business. The nature of harm is therefore serious and far reaching.

14. The nature of harm should the Applicant commit further violent offending of the kind he has committed includes physical injury and possibly psychological injury including to police officers in the performance of their duties.

15. The nature of harm should the Applicant commit further traffic offences of the kind he has committed is physical or psychological injury, or death, to other road users. 

16. The nature of harm from property offences of the kind committed by the Applicant includes property loss and damage.

    The Likelihood of the Non-Citizen Engaging in Further Criminal or Other Serious Conduct

17. The Applicant’s New Zealand criminal and traffic history is dated. Further, he has not committed an offence or traffic infringement in Australia since October 2013 when he exceeded the speed limit by at least 30km/h. However, since October 2014 he has either been incarcerated or in the wider community seeking the return of his visa. These are not normal circumstances. The Applicant has not undertaken any rehabilitation courses or counselling with respect to his driving or his ability to cope with emotional stress. The Applicant’s ability to abstain from offending in an unstructured environment when he is not seeking the return of his visa is unknown.      

18. The Applicant claims he will never re-offend.[48] He has provided letters of support from family members attesting to his good character. His criminal history belies those attestations and I give them limited weight. Further, in assessing the reliability of any evidence from the Applicant, or from his son, mother or brother-in-law in his favour, I am mindful that these four people lied under oath in the Applicant’s armed robbery trial.    

    [48] Transcript page 14, lines 4 to 6.

19. In relation to the armed robbery, the Applicant said at the time he was very vulnerable and stressed, suffering feelings of anxiety and depression.[49] He said he was extremely stressed due to the breakdown of his relationship with, and short separation from, his long-term partner, Shannon, after finding out she had been unfaithful, and the unexpected loss of his employment.[50] Several family members have corroborated this in letters of support. However, during this period, he went out with his stepfather celebrating at the casino and a strip club, bragged about having committed the armed robbery, stayed overnight in a hotel with Shannon, and took various calculated evasive actions. That behaviour does not seem consistent with the Applicant suffering from depression and there is no professional diagnosis of depression. I accept that the Applicant was upset about his personal life and the loss of his employment, but I am not satisfied that he was suffering from a psychological illness at the time he committed this offence.

    [49] Exhibit G1, s 37 T-documents, T23, page 95.

    [50] Exhibit G1, s 37 T-documents, T24, page 113 and T26, page 146.

20. It was contended on behalf of the Applicant that the armed robbery offence was impulsive.[51] However, the Applicant removed the numberplates of the vehicle he used[52], he wore a hooded jacket and mask, and he took a knife with him. Further, the learned sentencing Judge referred to “the degree of planning” in his sentencing remarks. I do not accept that the offence was impulsive.

    [51] Ibid, T25, page 127.

    [52] Exhibit G1, s 37 T-documents, T21, page 71, lines 17 and 18.

21. Several of the Applicant’s immediate family members have provided letters stating that they will support the Applicant if he is allowed to return to Australia. The evidence of the Applicant and his family is that they are close-knit and loving. I note that the Applicant had the support of his family before and it did not stop him from offending. Further, the Tribunal has little confidence that those family members who lied to police and in their evidence in court could act as protective factors.

22. I am satisfied that the Applicant will have stable accommodation with family members if he returns to Australia and I am satisfied that he has good employment prospects here.   

23. The Applicant gave evidence that his Brazilian wife was in the process of obtaining a partner visa for New Zealand.[53] He did not know whether she would be able to obtain a visa to live in Australia. It therefore appears uncertain whether she or their baby would join the Applicant if he were to return to Australia.

    [53] Transcript page 14, lines, 4 to 6.

24. I have before me a report by Associate Professor James Freeman, consultant psychologist dated 24 January 2018.[54]  Dr Freeman conducted a telephone interview with the Applicant and spoke with Shannon for the purposes of the report. Dr Freeman said the Applicant was able to express an appropriate level of remorse for the armed robbery. He did not think the Applicant met the criteria for any personality disorder, however he thought there was evidence that he could react excessively to emotional stressors, during which time he was vulnerable to engaging in reckless behaviour with little consideration for the consequences.[55] Applying an actuarial risk assessment, he concluded that the Applicant did not present with risk factors associated with psychopathy and/or an elevated risk of violent recidivism. I note that in coming to this conclusion Dr Freeman said that the Applicant accepted responsibility for his actions and openly discussed the offence and his behaviour.

    [54] Exhibit G1, s 37 T-documents, T27, page 451.

    [55] Ibid, page 155.

25. I note that after committing the offence, far from taking responsibility for his actions, the Applicant engaged in evasive behaviour, pleaded not guilty, gave false evidence at his trial (more than two years later), and appealed against his conviction (nearly three years later). When asked about his not guilty plea and his appeal at the Tribunal hearing, he said he felt remorseful for the offending but he desperately needed to be with his family and was exercising his legal rights, according to him to “see if I had a legal right to remain with my family”.[56] The Applicant’s efforts to avoid the lawful consequences of his offending came at a cost to others: his not-guilty plea meant the victim gave evidence at the trial, and his family members perjured themselves for his benefit. The Applicant’s actions undermine his claims of remorse in the years following the offence. These aspects of the Applicant’s behaviour were not addressed by Dr Freeman and it appears they were not known to him at the time he prepared his report.        

    [56] Transcript, page 61, lines 1 to 31.

26. Further, it does not appear that even at the time of the hearing, the Applicant genuinely accepted responsibility for his conduct. I specifically refer to his steadfast denial that he never intended to threaten the victim, as the following exchange demonstrates:

    Q: Okay. So she saw the knife. You agree that you wanted her to see the knife?

    A: Yes, I had it in my hand but it wasn’t anywhere near – it was down by my side and I was – and I tapped her on the shoulder with my left hand and I was a clear distance away from her.  I wasn’t imposing at all.  I never meant to scare anyone in that way.

    Q: How did you think you were going to get her to give you that money, if she wasn’t scared?

    A: I hadn’t thought into it that much.  But all I did is I – even though I’ve taken responsibility, I asked her to put the money in the bag.  I didn’t swear.  I didn’t raise my voice and nor did I threaten anyone ever.  She opened the zipper and put the money in the bag and then I left...

    Q: Are you telling this Tribunal that you did not have that knife there to threaten her?

    A: I didn’t use it in a threatening way.  I had it in my hand.  I guess in the same way as I had a balaclava and gloves on.  I don’t know what I was thinking at the time, but I’d never – I never was threatening in any way.  And her original statement states that she said to the police officer that she felt that I was even sorry at the time.  I told her I would not hurt her.  I never would.  And she believed me.  (Indistinct).

    Q: You don’t think the very fact that you were carrying a knife was threatening?

    A: Yes.

    Q: Isn’t that the whole reason you had the knife?

    A: I totally understand. I wouldn’t ever do anything with the knife nor would I hurt anyone.

    …

    Q: Wasn’t the whole reason you had a knife there, that you showed to her, to threaten her into putting the money in the bag and giving it to you?

    A: I didn’t put thought into it.  I think I had gloves and a balaclava and I had the knife, I think, because that’s what I’ve seen. Obviously, I’d never, ever threaten anyone with the knife. And, as I think back, the whole situation was pathetic and embarrassing and I’m so sorry that I’ve done this and caused this pain to anyone.  But I’d never, ever hurt anyone in that way.  Never did I threaten her with my words nor my presence.  I understand that she would have been threatened as in I am a male and I was disguised and she seen the knife in my hand.  But I was never using it in any threatening way, nor did I put it anywhere near her.  I never would.

    Q: Are you saying you go around carrying a knife normally? You didn’t put any thought into the fact that you had a knife?

    A: No, no, never.  The thought for the knife was that was seen with the balaclava and the gloves, I guess it was a costume I put on and, you know, I apologise for my actions.  But I never, I’ve never had a knife ever before that I’ve carried anywhere.  (Indistinct).

    Q: So the balaclava and the gloves are obviously a disguise. The knife is not a disguise.

    A: Yes.  Okay.

    Q: It seems like you don’t want to admit why you had the knife?

    A: I take full responsibility that that’s a threatening situation. I am simply saying I never – I was never – my intent was never to threaten her in any way (indistinct).

    Q: If you didn’t intend to threaten her, how did you think you were going to persuade her to hand over $60,000-odd to you?

    A: I didn’t think.

    Q: Why would she do that? Why would she do that if she wasn’t scared?

    A: I hadn’t thought of it that way….I never intended to hurt her, nor that I threatened her with any violence or any – I didn’t wave a knife or put a knife anywhere near her or even show it as – showing it off by (indistinct)…I take responsibility for that.  I understand that that is threatening....I had no intention of threatening her with the knife.[57]

    [57] Transcript, page 31, line 43 to page 33, line 19.

27. It is clear from this evidence that the Applicant, while claiming to take full responsibility for his actions and for the fact that the victim felt threatened, in fact did no such thing. One of the evils that the offence of armed robbery addresses is the use of a weapon to cause fear in victims. Had the Applicant physically harmed the victim, he would have committed an additional offence. His efforts to mitigate his offending by pointing out that he did not physically harm the victim, are concerning: it is difficult for the Tribunal to have confidence that the Applicant will not engage in similar threatening behaviour in future if he fails to grasp the seriousness of this threatening behaviour and its potential impact on victims.

28. Dr Freeman partly attributed the Applicant’s poor decision making, leading to the offence, to excessive alcohol consumption.[58] There was no mention of excessive drinking or of the Applicant being affected by alcohol during the armed robbery in the sentencing remarks, the Applicant’s revocation request lodged in 2017 or in the Applicant’s evidence in the hearing. It is not apparent from the report how Dr Freeman came to believe that alcohol consumption was related to the armed robbery or exactly how he thought it contributed to it. In the absence of any reliable evidence of any relationship between alcohol and the offence, I do not accept Dr Freeman’s opinion that alcohol was a factor in the Applicant’s decision to commit the armed robbery.

    [58] Exhibit G1, s 37 T-documents, T27, page 158.

1. Dr Freeman provided a supplementary report, dated 26 April 2019.[59] He conducted an additional telephone interview with the Applicant on 15 April 2019 and was provided with some additional material including the Applicant’s New Zealand criminal history and “Appeal documentation”. The Applicant told Dr Freeman that his offending in New Zealand resulted from a troubled family life, separation from his parents, alcohol misuse and being influenced by the wrong crowd. Dr Freeman said the Applicant attributed his false declaration upon arrival in Australia to having panicked in the heat of the moment, his naivety about his responsibilities and that he had not realised that he needed a visa to enter Australia. None of these reasons, even when combined, adequately explain why, when asked a simple question with only two possible answers, the Applicant chose the answer that was false. Even as recently as April 2019, the Applicant was not completely honest to the department about his personal circumstances.   

   [59] Exhibit G1, s 37 T-documents, T37.

2. The Applicant reported to Dr Freeman that his long-term relationship had ended but he maintained regular contact with his son. Dr Freeman provisionally diagnosed the Applicant with an ongoing adjustment disorder with mixed anxiety and depressed mood that he attributed to the emotional stress associated with the Applicant’s current situation, including being in New Zealand, separated from his son and other family. However, he said it did not appear to impair the Applicant’s psycho-social functioning as he had maintained his employment.[60] It is apparent that Dr Freeman was not aware that the Applicant was in a new relationship (married in fact) or that his wife was around three months pregnant. The relationship is not mentioned in the report, and Dr Freeman said the Applicant had no emotional support network in New Zealand and his only confidante was his parole officer.[61] As the reasons provided by the Applicant for committing the armed robbery included the emotional impact of the break-up of a long-term relationship, it would have been helpful if the fact that the Applicant was in another significant relationship had been known to Dr Freeman. The Applicant does not claim to have undertaken any courses or counselling to assist him to deal with emotional distress, and it is not known how stable and supportive his relationship with his wife is. His wife is Brazilian, there is no guarantee that she or their baby will be able to reside in Australia, and it is not known who the baby would live with in the event that the relationship ended  There is an obvious, yet unquantified, risk arising from the Applicant’s current relationship that was not taken into account in Dr Freeman’s risk assessment.        

   [60] Ibid, T37, page 456.

   [61] Ibid, page 458.

3. After applying an actuarial based risk assessment tool, Dr Freeman concluded that there was a low risk that the Applicant would commit further acts of violence. He based his conclusion on several factors. Dr Freeman said it was noteworthy that there was a nine-year gap in offending before the Applicant committed the armed robbery. In fact, the Applicant had committed some reasonably serious traffic offences during that period (and it is not apparent that Dr Freeman was aware of these). 

4. Dr Freeman concluded that:

   “Taken together, [the Applicant] continues to engage in pro-social behaviours despite being exposed to on-going emotional stressors. In regards to the latter, a common theme in his psychological history has been a vulnerability to react excessively to emotional stressors. However, there is now accumulating evidence to indicate he is developing and increasing capacity to control such responses and/or refrain from engaging in impulsive and self-damaging behaviours. That is, he presented as quite pragmatic about the rupture of his relationship, and remains committed to progressing his goal of increasing access (support for) his son who resides in Australia.”[62]

   [Underlining added]

   [62] Exhibit G1, s 37 T-documents, T37, 459.

5. The reference to the “rupture of his relationship” must be a reference to the Applicant’s relationship with Shannon. Dr Freeman did not give evidence in the hearing, so it was not possible to seek his opinion based on complete and accurate information, including that the Applicant was in a new relationship.

6. Dr Freeman is an independent expert with substantial relevant experience. Under normal circumstances his opinion would carry significant weight. However, the reliability of his conclusions is undermined by the fact that they were based on incomplete and inaccurate information. Further, Dr Freeman did not specifically address the risk that the Applicant would commit further driving offences or property offences. Accordingly, while I have regard to Dr Freeman’s reasoning, I do not feel obliged to accept his conclusions. I note, however, that many of the factors Dr Freeman took into account were consistent with the evidence before the Tribunal regarding the Applicant’s circumstances, e.g. no current substance abuse problems, major mental disorders or employment problems.    

7. Taking all of the evidence into account:

   ·     I am not satisfied that the Applicant suffers from an adjustment disorder; and

   ·     I find that there is at least a low risk that the Applicant will commit further violent offences and a moderate risk that he will commit further traffic offences involving risk to other road users.

8. I do not consider a low risk to be an insignificant risk. Rather, I consider that there is a real and significant risk that Applicant will engage in further violent offending.   

   Conclusion: Primary Consideration A

9. Primary Consideration A weighs heavily in favour of non-revocation.

   PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

10. Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

11. The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:

    ·the nature and duration of the relationship between the child and the person, noting that less weight should generally be given where there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

    ·the extent to which the person is likely to play a positive parental role in the future, taking into account the time until the child turns 18, and including any Court order relating to parental access and care arrangements;

    ·the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

    ·the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizens ability to maintain contact in other ways;

    ·whether there are other persons who already fulfil a parental role in relation to the child; and

    ·any known views of the child.

12. The Applicant does not claim to have any minor biological children in Australia. He claims to have four minor nephews and two minor nieces in Australia whose best interests are affected by his visa cancellation. They are:

    ·Child A who is 14 years old;

    ·Child B who is 12 years old;

    ·Child C who is 12 years old;

    ·Child D who is eight years old (born in mid-2012);

    ·Child E who is seven years old (born in late 2012); and

    ·Child F who is three years old.

13. When the Applicant was incarcerated for the armed robbery offence in October 2014, Child D was barely two years old, Child E was less than two years old and Child F was yet to be born. Since that time, the Applicant has been in prison, Immigration Detention and New Zealand. Child E and Child F have each been taken to New Zealand once, and been taken to visit the Applicant while they were there. Child D, Child E and Child F have each had a very limited relationship with the Applicant to date.

14. Child E and Child F are the daughters of one of the Applicant’s sisters. She is currently separated from the children’s father. She fulfils the parental role for them. According to the Applicant, the father of the children is a good father who spends time with them.[63] In the hearing the Applicant claimed to have spent “a lot of time with” Child E,[64] however any time the Applicant spent with her must have been before she was two years old and briefly when she visited him in New Zealand.

    [63] Transcript, page 25, lines 15 to 35.

    [64] Transcript, page 25, lines 44 and 45.

15. The Applicant has never met Child D despite him having been born two years before the Applicant was imprisoned. He does not know Child D’s date of birth (he asked his mother for the purpose of submitting his revocation request) and he has never met him or spoken with him on the telephone.[65] Child D lives with the Applicant’s brother and his partner, who both fulfil parental roles. The father of Child D provided a letter of support in which he said that both his children “love [the Applicant] a lot”.[66] However, according to the Applicant’s own evidence, he has never had any contact with Child D.  

    [65] Transcript, page 24.

    [66] Exhibit G1, s 37 T-documents, T32, page 231.

16. Child C is Child D’s older brother and is 12 years old. The Applicant told the Tribunal that when his brother used to visit, he brought Child C with him. He said has not had any contact with Child C since Christmas 2013.[67] There is no evidence before me about the nature of the relationship between the Applicant and Child C, or how much contact they had, prior to his incarceration, except that there was no contact between Christmas 2013 and October 2014 (when the Applicant was incarcerated).

    [67] Transcript, page 24, lines 45 to 47.

17. There is no evidence to suggest that the respective parents of Child C, Child D, Child E and Child F will not continue to fulfil parental roles in their lives or that the Applicant would ever fulfil such a role. I accept that if the Applicant lived in Australia, he would have some involvement in the lives of these children in the role of their uncle, and that there is potential for him to do so for several years, given their ages. However, the Applicant has had very limited involvement with these children so far and there is no evidence that he has any meaningful relationship with any of them. In these circumstances, I find that the best interests of each of these children weighs only very slightly in favour of revoking the cancellation of the Applicant’s visa.

18. Child A and Child B are the sons of another of the Applicant’s sisters. Both children live with their parents. Child A’s mother provided a letter of support in which she said the Applicant acted as a mentor to Child A when Child A came to live with them in 2010.[68] Child A is not her biological son but an adopted relative. Child B is in the same family. The Applicant claims that Child A and Child B are like sons to him and that he played games with them.[69] Child A provided a letter of support in late 2017 in which he said the Applicant was one of his closest uncles and was always there when he was having a bad day – and he would play “touch or soccer” with him.[70] He said he was looking forward to the Applicant returning so that he could take him to football games. He said he loves and misses the Applicant.[71] Child B provided a letter of support in late 2017 in which he said he missed the things that the Applicant and he used to do together like playing with his dog, playing games and talking about cars. He would like the Applicant to return Australia.[72] There is not any more recent evidence about the views of these two children, and I note that they have been physically separated from the Applicant for a further two and a half years since they wrote those letters. While I do not accept that Child A and Child B were like sons to the Applicant, I do accept that the Applicant had a meaningful, positive relationship with both children before his incarceration six years ago and that both children wish to resume that relationship. I do not think the evidence goes any further than that. I am satisfied that the best interests of Child A and Child B warrant more weight than the best interests of the other children in favour of returning the Applicant’s visa to him. However, the Applicant has had very limited involvement in these children’s lives since his incarceration and any future involvement in their lives will be in the capacity of an uncle, not a parent.    

    Conclusion: Primary Consideration B

    [68] Exhibit G1, s 37 T-documents, T32 page 227 to 230.

    [69] Transcript page 26 lines 4 to 5.

    [70] Exhibit G1, s 37 T-documents, T32 page 240.

    [71] Ibid, T32, pages 240 to 241.

    [72] Ibid, page 242.

19. Overall, Primary Consideration B weighs slightly in favour of revocation.

    PRIMARY CONSIDERATION C – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

    The relevant paragraphs in the Direction

20. In making the assessment for the weight to be allocated to Primary Consideration C, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. Moreover, I should proceed on the basis that the Australian community expects that the Australian government can and should cancel a person’s visa if they commit serious crimes. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. I must have due regard to the Government’s views in this respect and any overarching principles in the Direction.

21. The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of the community. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Government’s views in relation to community expectations are to be found in the Direction.[73]

    [73] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.

22. This approach was confirmed recently by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.

    Analysis – Allocation of Weight to this Primary Consideration C

23. In assessing the weight attributable to Primary Consideration C, it is necessary to have regard to the following matters:

    ·the Applicant moved to Australia when he was 27 years old and spent 14 years here;

    ·he had committed numerous violent offences, including assault police, and numerous traffic offences, in New Zealand;

    ·he deliberately concealed his New Zealand criminal history from the Australian authorities when he entered Australia;

    ·he committed some reasonably serious traffic infringements within 18 months of his arrival in Australia, and he continued to commit the sort of traffic infringements that pose a risk to other road users until 2013;

    ·he committed a premeditated armed robbery in Australia that had far-reaching negative consequences for the female victim. While he expressed a great deal of remorse, he showed little insight into this offending;

    ·there is at least a low risk that if he is returned to the wider Australian community, he will commit further violent offences and a moderate risk that he will commit further traffic offences that would involve risk to the safety of other road users;  

    ·he was gainfully employed for much of his time in Australia;

    ·he was on a temporary, not permanent, visa; and

    ·his absence from Australia will adversely impact members of his family – as discussed in Primary Consideration B above and Other Consideration (b) below.

    Conclusion: Primary Consideration C

24. The nature of the Applicant’s offending is such that the Australian community would expect that he should not hold a visa. Considering all relevant factors, Primary Consideration C weighs heavily in favour of non-revocation of the decision under review.

    OTHER CONSIDERATIONS

25. It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).

    (a) International non-refoulement obligations

26. The Applicant is currently living in New Zealand. He does not claim to fear harm and none of the evidence suggests a risk of harm. This consideration is not relevant to the determination of this application.

    (b) Strength, nature and duration of ties

27. The Applicant was an adult when he relocated to Australia. He has lived here since the age of 27. He committed the armed robbery nine years after arriving here. While he committed some traffic infringements soon after arriving, he is entitled to some measure of weight in his favour under paragraph 14.2(1)(a) of the Direction on account of the length of time he was in Australia before committing the armed robbery.

28. The Applicant spent most of his time in Australia in gainful employment. This adds some weight in his favour pursuant to paragraph 14.2(1)(a)(ii) of the Direction.

29. Each of the Applicant’s siblings, and his mother and stepfather provided letters of support speaking to their respective relationships with the Applicant and his importance in their family unit. Further, the Applicant’s mother has some health concerns although there is no evidence that she requires the Applicant’s assistance to manage those. I am satisfied that the Applicant has strong and enduring ties with his siblings, mother and stepfather and his adult son, all of whom live in Australia. The Applicant gave evidence that they are “all permanent in Australia”.[74] In the absence of direct evidence of their visa status, I am prepared to find that they hold permanent visas.      

    [74] Transcript, page 14, line 22.

30. In a letter dated June 2018, the Applicant’s son, who is currently 24 years old described the impact of the Applicant’s return to New Zealand on him.[75] He reported extreme stress that had affected his physical and mental health. He said he also spent his savings and took out a $50,000 loan to help the Applicant. There is a medical certificate before me, dated 3 May 2019, from Dr Wimalaguna, that states that the Applicant’s son:[76]

    ·was suffering from insomnia;

    ·had suffered from asthma in the past that was well controlled with medication;

    ·had, in June 2018, been suffering from depression brought on by the Applicant going to New Zealand and financial pressure;

    ·had suffered weight gain from the depression medication; and

    ·in March 2019, had experienced work stress after some co-workers left.

    [75] Exhibit G1, s 37 T-documents, T35, 435 to 436.

    [76] Ibid, T45, 512 to 513.

1. Dr Wimalaguna then stated that in March 2019, the Applicant’s son was unable to do his work due to stress “most probably due to his depression and anxiety” which is not quite the same as the preceding information, being that he was stressed because some co-workers left. Dr Wimalaguna concluded that the Applicant’s son’s mental health had deteriorated after the Applicant’s “deportation” and that the Applicant’s return to Australia would help his son to improve his mental health and physical health, especially his asthma. I unable to find anything in the report that could explain how the Applicant’s return would help with his son’s asthma and I reject that contention.   

2. By the time of the hearing, the Applicant’s son had visited him in New Zealand three times.[77] He also assisted the Applicant in the hearing. He impressed as a responsible and courteous young man.

   [77] Transcript, page 21, lines 45 and 46. 

3. I have no doubt that the Applicant and his son have a close relationship. The cancellation of the Applicant’s visa resulted in his son suffering psychologically and financially. It is very unfortunate that his offending has impacted his son in the ways that it has, from the time of the offence to the present day, and I note that the Applicant has expressed regret about some of that.

4. The Applicant gave evidence that his son has a close and supportive relationship with his family in Australia. His son, mother and stepfather, and siblings all live in the Brisbane area. He said his son used to live with his mother and stepfather but now lives elsewhere. When asked about his family’s ability to provide emotional support to his son, the Applicant did not give a straight answer. Rather, he indicated that he did not know and pointed to reasons why they might not, such as having their own issues and his son not living with his parents anymore.[78] I consider that the Applicant was trying to downplay the extent to which his family could support his son. The preponderance of evidence is that the Applicant’s family are close and supportive, and I am satisfied that the Applicant’s son would be able to turn to them for emotional support. I am further satisfied that the Applicant’s son has sought help, and obtained treatment, for his depression and anxiety.

   [78] Transcript, page 65.

5. There are some letters of support before me from people who are not family members. The Applicant has lived in Australia for a considerable period and been employed. I accept that he has some social ties to the Australian community.  

6. With respect to paragraph 14.2(1)(b), the Applicant has some social ties to Australia, some strong and enduring familial ties to Australia, and his family, in particular his adult son, will be adversely impacted if the cancellation of his visa is not revoked.

7. I am satisfied that the strength, duration, and nature of ties to the Australian community weighs heavily in favour of revocation.

   (c) Impact on Australian business interests

8. The Applicant does not claim that his removal from Australia has adversely impacted on Australian business interests. This consideration is not relevant to the determination of this application.

   (d) Impact on victims

9. This Other Consideration (d) requires a decision-maker to assess the impact of a non-revocation decision (i.e. where the Applicant does not get his visa restored to him) upon, inter alia, the Applicant’s victim(s). There is no evidence before the Tribunal relating to the impact that the Applicant’s return to Australia would have on the victim of the armed robbery. This Other Consideration (d), is therefore neutral.

   (e) Extent of impediments if removed

10. As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    (a)the non-citizen’s age and health;

    (b)whether there are any substantial language or cultural barriers; and

    (c)any social, medical and/or economic support available to that non-citizen in that country.

11. The Applicant is currently living in New Zealand. He has accommodation and employment. He reported that he had previously lost a job in New Zealand and had a period of unemployment and depression due to missing his family.[79] However, at the time of the hearing he was living with his wife and baby and he was employed. The Applicant has a good work history and he has a qualification in asbestos removal, so I find that he has good continuing employment prospects. As a New Zealand citizen, the Applicant is entitled to income support from the government if he becomes unemployed.  

    [79] Transcript, page 12, lines 25 to 40.

12. At 44 years old, the Applicant is relatively youthful. He does not claim to have any serious medical problems and the only evidence of psychological problems is a diagnosis of adjustment disorder which I have rejected.

13. It is reasonable to find that the level of medical care and governmental/social support in New Zealand is at or about the same level as that currently available to the Applicant in Australia.

14. The Applicant grew up in New Zealand and spent the majority of his life there. He does not face any substantial language or cultural barriers.

15. In terms of social support, the Applicant has his wife in New Zealand, and he keeps in touch with his family in Australia.[80] His family members occasionally visit him in New Zealand.

    [80] Exhibit G1, s 37 T-documents, T26, page 151.

16. Accordingly, I am of the view that this Other Consideration (e) weighs only slightly in favour of revocation of the reviewable decision.

    Findings: Other Considerations

17. The application of the Other Considerations in the present matter can be summarised as follows:

    (a)international non-refoulement obligations: not relevant;

    (b)strength nature and duration of ties: weighs heavily in favour of revocation;

    (c)impact on Australian business interests: not relevant;

    (d)impact on victims: neutral; and

    (e)extent of impediments if removed: weighs slightly in favour of revocation.

    CONCLUSION

    Is there Another Reason to Revoke the Cancellation of the Applicant’s visa?

18. In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I find as follows:

    ·Primary Consideration A weighs heavily in favour of non-revocation;

    ·Primary Consideration B weighs slightly in favour of revocation;

    ·Primary Consideration C weighs heavily in favour of non-revocation; and

    ·To the extent that Primary Consideration B and Other Considerations (b) and (e) weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh Primary Considerations A and C.

19. Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.

20. Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.

    DECISION

21. The decision under review is affirmed.

I certify that the preceding 137 (one hundred and thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

..............................[SGD]..........................................

Associate

Dated: 4 September 2020

Date of hearing:	23 April 2020
Applicant:	By telephone
Solicitors for the Respondent:	Mr Jake Kyranis Sparke Helmore Lawyers

ANNEXURE A – EXHIBIT LIST

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 37 T-documents (paged 1 to 513)	R	-	21 NOV 2019
R1	Summonsed Records (paged 1 to 22)	R	-	21 FEB 2020
R2	Respondent’s Statement of Facts, Issues and Contentions	R	21 FEB 2020	21 FEB 2020
A1	Statement of the Applicant's Son	A	17 JAN 2020	18 JAN 2020
A2	Applicant’s Submission Bundle	A	-	16 JAN 2020