DZHK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 2634
•16 July 2020
DZHK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2634 (16 July 2020)
Division:GENERAL DIVISION
File Number(s): 2020/2563
Re:DZHK
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Linda Kirk
Date:16 July 2020
Date of written reasons: 3 August 2020
Place:Sydney
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision under review, being the decision of the Respondent dated 22 April 2020 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
............................[SGD]............................................
Senior Member Linda Kirk
CATCHWORDS
MIGRATION – Class TY subclass 444 Special Category (Temporary) visa – citizen of New Zealand – failure to pass character test – affray offences – assault offences – behaviour in criminal and immigration detention – whether discretion to revoke mandatory visa cancellation should be exercised – considerations under Direction No. 79 – primary considerations – other considerations – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Dalley and Minister for Home Affairs [2019] AATA 3738
DKXY v Minister for Home Affairs [2019] FCA 495
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 116; (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
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tuioti and Minister for Home Affairs [2019] AATA 4423
Uelese v Minister for Immigration and Border Protection [2016] FCA 348YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
WRITTEN REASONS FOR DECISION
Senior Member Linda Kirk
3 August 2020
Ms DZHK (‘the Applicant’), a citizen of New Zealand, was born in 1997.[1] She first arrived in Australia on 7 December 1999 when she was two years old.[2] Prior to its cancellation, the Applicant held a Class TY Subclass 444 Special Category (Temporary) visa (‘the visa’).[3]
[1] G-documents, G14, 87.
[2] Ibid.
[3] Ibid G2, 9.
On 30 June 2016, the Applicant’s visa was cancelled by a delegate of the Minister (‘the Respondent’) under subsection 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) (‘2016 visa cancellation’)[4] after being convicted of Affray by the Maitland Local Court on 24 March 2016, for which she was sentenced to 12 months’ imprisonment.[5] On 16 July 2016, the Applicant made representations in support of her request for revocation of the visa cancellation,[6] and on 4 October 2016 a delegate of the Respondent decided to revoke the cancellation.[7]
[4] Ibid G19, 135.
[5] Ibid G3, 33.
[6] Ibid G20, 157-158.
[7] Ibid G19, 135-137.
On 27 October 2017, the Applicant was convicted in the Gosford Local Court on two counts of affray, for which she was sentenced to 12 months’ imprisonment with a non-parole period of six months and section 9 bond for three years with supervision respectively, and one count of common assault, for which she was sentenced to three months imprisonment. [8]
[8] Ibid G3, 33.
On 28 November 2017, the Department issued the Applicant with a Notice of Visa Cancellation (‘the Mandatory Visa Cancellation Decision’) under subsection 501(3A) of the Act on the basis that she did not satisfy the character test in subsection 501(6) of the Act by virtue of the term of imprisonment referred to above.[9] On this date, the Applicant was serving a sentence of full-time imprisonment at Wellington Correctional Centre in New South Wales.
[9] Ibid G8, 57.
On 20 December 2017, the Applicant made a request for revocation of the Mandatory Visa Cancellation Decision and made representations to the Minister in support of her revocation request.[10]
[10] Ibid G9, 61-65; G10, 66-78; G11, 79-80; G12 81-82.
On 22 April 2020, a delegate of the Minister decided not to revoke the Mandatory Visa Cancellation Decision under section 501CA(4) of the Act (‘the Reviewable Decision’).[11]
[11] Ibid G2, 12-26.
On 1 May 2020, the Applicant lodged an application with the Administrative Appeals Tribunal (‘the Tribunal’) seeking a review of the Reviewable Decision.[12]
[12] Ibid G1, 2.
The matter was heard by the Tribunal at a hearing on 1 July 2020. The Applicant appeared by videoconference from Villawood Detention Centre and was self-represented. She gave oral evidence at the hearing.
The material before the Tribunal consists of:
·Respondent’s Statement of Facts, Issues and Contentions (‘SFIC’) dated 16 June 2020;
·G-documents (G1 to G30, pages 1-251);
·Respondent’s supplementary documents – Volume 1 (pages 1-351);
·Respondent’s supplementary documents – Volume 2 (pages 1-52); and
·Applicant’s statement dated 9 June 2020.
The Tribunal has reviewed all of the evidence before it and refers to all relevant materials below.
LEGISLATION
Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) …; and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Paragraph 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Relevantly, pursuant to paragraph 501(7)(c) of the Act, a person has a substantial criminal record if the person has been sentenced to ‘a term of imprisonment of 12 months or more’.
Section 501CA of the Act applies if the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501CA(4) confers on the Minister the discretion to revoke the Mandatory Visa Cancellation Decision under subsection 501(3A). Subsection 501CA(4) provides:
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.
Paragraph 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
MINISTERIAL DIRECTION NO. 79
When considering whether to revoke the cancellation decision, the Tribunal is required under subsection 499(2A) of the Act to have regard to the Minister’s Direction. The relevant Direction is Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘the Direction’).
The Preamble to the Direction provides a framework for the guidance of decision-makers in deciding whether to exercise the discretion to revoke the mandatory cancellation of a visa under section 501CA of the Act. Paragraph 6.1 of the Direction begins with a statement of Objectives, the first of which is as follows:
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
The Objectives are followed by paragraphs 6.2 and 6.3 described as General Guidance and Principles respectively. The principles referred to in the General Guidance (and reproduced below) constitute a framework within which decision-makers apply the considerations in Part A, B, or C of the Direction.
The paragraph 6.2(1) of the General Guidance provides:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
The following Principles are set out in paragraph 6.3:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1) of the Direction sets out how the discretion under section 501 or 501CA of the Act is to be exercised:
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
a) must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
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.
In the Applicant’s case, Part C is applicable as it is directed to revocation requests made in relation to mandatory visa cancellation decisions made under subsection 501(3A) of the Act.
In applying any of the Parts, including Part C, paragraph 8 of the Direction sets out how the considerations are to be applied by a decision-maker. Decision-makers must take into account the primary and other considerations relevant to the individual case. The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):
… Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa Applicant should have no expectation that a visa application will be approved.
Part C of the Direction provides more specific considerations in determining whether to exercise the discretion to revoke a mandatory cancellation of a non-citizen’s visa. These include ‘primary considerations’ and ‘other considerations’. The primary considerations 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.
The other considerations are:
(a) international non-refoulement obligations;
(b) strength, nature and duration of ties [to Australia];
(c) impact on Australian business interests;
(d)impact on victims; and
(e)extent of impediments if removed.
Paragraph 8(2) of the Direction stipulates that in taking into account the primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 8(3) provides that ‘[b]oth primary and other considerations may weigh in favour of, or against … whether or not to revoke a mandatory cancellation of a visa.’ Paragraphs 8(4) and (5) provide that primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh other primary considerations.
ISSUES FOR DETERMINATION
Before the power in subsection 501CA(4) of the Act, to revoke the original decision, is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.
There is no dispute that the Applicant made the representations required by paragraph 501CA(4)(a). The issue is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo[13] the Full Court of the Federal Court of Australia made the following observations in relation to subsection 501CA(4):
... 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...[14]
[13] [2018] FCAFC 151.
[14] 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).
The issues for determination are:
(a)whether the Applicant passes the character test; and
(b)whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.
If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision should be revoked.
EVIDENCE BEFORE THE TRIBUNAL
Background and family
The Applicant migrated to Australia from New Zealand with members of her family, including her mother and father, two brothers and two sisters, including her twin sister.[15] The Applicant’s family all reside in Australia with the exception of her older brother, Justin, who was recently deported to New Zealand,[16] and her paternal grandparents.[17]
[15] G-documents, G10, 67.
[16] Ibid G9, 65.
[17] Ibid G10, 72.
In her statement dated 9 June 2020, the Applicant wrote that as a child her family unit was supportive and encouraging. She did well at school and succeeded in sports, particularly touch football. The Applicant’s family relocated from Sydney to the Central Coast so that her father could be closer to his work. Following this move, the Applicant’s parents’ relationship quickly deteriorated.[18]
[18] Statement of Applicant dated 9 June 2020 (‘Statement of Applicant’), 1.
In her letter to the Department dated 1 July 2019, the Applicant wrote that as a child she ‘endured and experienced extreme ongoing and repeated trauma at the hands of my father which had a profound and detrimental impact on my psycho-socio development.’[19] She stated that her father was ‘physically abusive’ towards her mother, often in front of her. Further, her father ‘was often physically, emotionally and mentally violent towards me as a child which led to me feeling alone, worthless and… like the black sheep of the family’.[20]
[19] G-documents, G13, 83.
[20] Ibid.
As a child, the Applicant experienced bullying and negative feedback from her teachers, other students and parents.[21] In her letter to the Department in support of her request for revocation, the Applicant wrote:
As I was going all through primary school I had experienced bullying from a number of students due to my sexuality and being gay also my eyesight. I was often bullied about and still to this day have trouble dealing and coping with, as a result my education was significantly disrupted and I was unable to complete high school.[22]
[21] Statement of Applicant, 1.
[22] G-documents, G13, 84.
The Applicant was expelled from school in year 7 and attended a transitional centre until year 9 and then completed a year 10 workplace certificate at TAFE.[23] She was selected to play for ‘Sydney North State and regionals… throughout multiple years’.[24] The Applicant struggled to understand why her family split up, and turned to her friends who accepted her as she is, which made her ‘feel like a normal person again.’[25]
[23] Ibid G2, 24.
[24] Statement of Applicant, 1.
[25] Ibid 1-2.
As a consequence of the trauma and confusion she was suffering and ‘being an outcast’, the Applicant began drinking and smoking cannabis ‘to numb the pain and erase all feelings of hurt, frustration, anger and sadness’ of her childhood and teenage years.[26] At the age of 13 years, the Applicant ran away from home to escape the ‘negative environment’ to which she was subjected.[27] Eventually her father left the family home and the violence against her and her mother then ceased.[28]
[26] Ibid 2; Transcript, 23.
[27] Statement of Applicant, 1; Transcript, 31.
[28] Statement of Applicant, 1.
The Applicant told the Tribunal that her mother struggled following the breakup of her relationship and attempted suicide, but she is now ‘a lot more stable’.[29] Her relationship with her mother ‘has been up and down’ however currently their relationship is ‘quite fine’ and they speak regularly.[30] However, her mother is not willing to have her live with her at her house.[31] She told the Tribunal that her mother and sister have assured her they will assist her to attend appointments if she is released back into the community.[32] The Applicant asked her mother and older sister to provide a statement in support of her review application, but they were unwilling to do so.[33]
[29] Transcript, 23.
[30] Ibid.
[31] Ibid 29.
[32] Ibid 24.
[33] Ibid.
Her father is not a ‘significant figure’ in her life and, while he is happy to help her with some legal and medical matters, he is unwilling to provide her with a place to live, or otherwise assist her.[34] When she was released from immigration detention in October 2016 she went to live with her father, but he asked her leave after a short time and she then reoffended.[35] She told the Tribunal that her father tried to rush her into doing things and did not give her time to settle back into the community.[36] She did not ask her father to provide a statement in support of her review application.[37] The Applicant said her relationship with her step-mother is ‘a little bit more positive’ than that with her father and she is more willing to assist the Applicant.[38]
[34] Ibid 22-33.
[35] Ibid 29.
[36] Ibid 30, 33.
[37] Ibid 23-24.
[38] Ibid 25.
The Applicant told the Tribunal she does not have regular contact with her siblings but she has a positive relationship with them, particularly her older brother Justin, as he can relate to her circumstances as he also has experienced the criminal justice system and homelessness.[39] She had not heard from Justin for about seven years while he was in gaol, but since he has returned to New Zealand they have been in regular contact.[40] Her other brother lives on the Central Coast and he has two children who are twins and aged one year.[41] Her older sister lives in Sydney and has two boys aged eight and three years.[42] She stays in contact with her siblings and nephews via Facebook and video and phone calls. They visited her in gaol and in Villawood prior to the introduction of the COVID-19 restrictions. She has a good relationship with her twin sister who lives in the Hunter Valley.[43]
[39] Ibid 25-26.
[40] Ibid 26.
[41] Ibid.
[42] Ibid 27.
[43] Ibid 27-28.
In her Personal Circumstances form, the Applicant stated that she is single and does not have any children.[44] The Applicant has not had any periods of employment in Australia.[45]
[44] G-documents, G10, 69-71.
[45] Ibid G10, 77.
Criminal history
A National Criminal History Check dated 13 June 2019 issued in respect of the Applicant records that she has been convicted of a number of offences in Australia.[46] In her representations to the Department and the Tribunal, the Applicant did not dispute the convictions and sentences in the National Criminal History Check.
[46] Ibid G3, 32-36.
Between March 2013 and February 2015, the Applicant appeared six times in the Children’s Court of New South Wales for a range of offences.[47] She received various sentences including supervision and good behaviour bonds, although most convictions resulted in the Applicant being subjected to control orders for multiple breaches of bail.[48]
[47] Ibid G3, 34-36.
[48] Ibid G21, 160-168.
As an adult, the Applicant has been convicted of numerous offences, including affray, common assault, stalk/intimidate intend to cause fear of physical harm, driver never licensed, motor bike rider (alone) not wear/secure fit approved helmet, drive with middle range PCA, drive conveyance taken without consent of owner, not give way at intersection to vehicle on right, destroy or damage property, enter inclosed land not prescribed premises without lawful excuse, use offensive language in/near public place/school and aggravated assault with intent to rob.[49]
[49] Ibid G3, 32-34; G21, 159.
On 24 March 2016, the Applicant was convicted of affray by the Maitland Local Court and received a sentence of 12 months’ imprisonment.[50] The details of the Applicant's offending which occurred on 8 March 2015 is set out in a New South Wales Police Facts Sheet.[51] The Applicant was on bail at the time of her offending, and CCTV footage showed her 'head butt' a passenger on a train which sparked a fight. It is noted that ‘[p]assengers on the carriage can be seen fleeing as the brawl erupts’ and that ‘the behaviour of the [Applicant]...would cause fear to any reasonable person.’[52] In his sentencing remarks, Magistrate Chicken noted that the Applicant was ‘intoxicated by some form of drug or alcohol and [was] behaving in a violent fashion in a public way’ and that after she was punched she fought back ‘terrorising the people on the train’.[53] The Applicant told the Tribunal that she was drunk at the time of the offence and cannot remember the details of her offending.[54]
[50] Ibid G3, 33.
[51] Respondent’s supplementary documents – Volume 1 (‘Supplementary documents – Volume 1’), S14, 243-245.
[52] Ibid S14, 245.
[53] G-documents, G6, 52.
[54] Transcript, 33.
On 27 October 2017, the Applicant was convicted in the Gosford Local Court on two separate and unrelated counts of affray, for which she was sentenced to 12 months’ imprisonment with a non-parole period of six months and section 9 bond for three years with supervision respectively, and one count of common assault, for which she was sentenced to three months imprisonment.[55] The section 9 bond included conditions that she ‘attend for counselling, educational development, drug or alcohol rehabilitation.’[56] The sentencing remarks of Magistrate Day in relation to these offences noted the first offence of affray committed on 3 January 2017 was 'low level' although was aggravated by the fact the Applicant had previously been convicted of the same offence and was on parole at the time of the offending.
[55] G-documents, G3, 33.
[56] Ibid.
In respect of the offence of common assault committed on 4 June 2017, the New South Wales Police Facts Sheet indicates that the Applicant punched the victim in the face numerous times and also kicked her in the stomach.[57] In her oral evidence, the Applicant confirmed that the NSW Police Facts Sheet accurately records what occurred.[58] She could not recall what led to the confrontation with the victim.[59] Magistrate Day noted the second offence of affray was ‘more serious’ and although it stopped ‘short of actual violence’ it would have nonetheless ‘scared and frightened the rail commuters’.[60]
[57] Supplementary documents – Volume 1, S17, 253.
[58] Transcript, 19
[59] Ibid.
[60] G-documents, G5, 51.
On 1 February 2019, the Applicant was convicted of demand property with menaces with intent to steal and common assault for which she was convicted in the Gosford District Court and sentenced to two years and three months imprisonment and nine months’ imprisonment, respectively.[61] In her sentencing remarks in relation to both offences, Judge Bright described the facts of the Applicant’s offending which occurred on 8 February 2017.[62] The Applicant suddenly came up to the victim, grabbed her by the front of her t-shirt and came up to her face and said, ‘If you’re not a copper dog, give me your watch and your phone.’ The victim said, ‘No’. The Applicant repeated the words, ‘If you’re not a copper dog, give me your watch and your iPhone.’ The victim attempted to stand up and the Applicant grabbed her by the shirt and pushed her back down again and said, ‘Don’t get up’. The Applicant said to the victim, ‘If you don’t give me your watch and your iPhone, I’ll fucking stab you and leave you here for dead...’. The Applicant chased the victim before punching her to the left cheek with a closed fist. A witness to the offence saw the Applicant punch the victim in the face three to four times.[63] In her oral evidence, the Applicant said that she did not attempt to rob the victim, and she only hit her once for reason that she had verbally abused the Applicant.[64]
[61] Ibid G3, 32-33.
[62] Ibid G4, 37-38.
[63] Ibid G4, 38.
[64] Transcript, 21.
The Applicant pleaded guilty to both offences. She told the Tribunal she did so to receive a lesser sentence.[65] In her sentencing remarks Judge Bright considered that the facts disclosed ‘serious objective offending’ and there was ‘no doubt that the offending would have significantly affected the victim’.[66] Her Honour further commented:
Having regard to the offender’s criminal history I am satisfied that it disentitles her to any leniency that would otherwise be available for an offender of prior good character. Having regard to her previous convictions for violence, I also accept that specific deterrence is an important consideration on sentence. I note that this is the most serious offence for which the offender has been convicted. [67]
[65] Ibid 22.
[66] G-documents, G4, 39.
[67] Ibid G4, 40.
Psychological assessment
The Applicant was assessed by Dr Katie Seidler, clinical and forensic psychologist, who prepared a report dated 6 July 2018.[68] In her report, Dr Seidler noted that the Applicant ‘will require mental health treatment to assist her in developing skills for more mature self-regulation and emotional coping’ and recommended she ‘engage in intervention [to] address her antisocial attitudes and values’. She further suggested that the Applicant ‘be assessed for substance abuse treatment that will include increasing her motivation for abstinence, her skills for relapse prevention and her ability to maintain sobriety in the community.’[69]
[68] Supplementary documents – Volume 1, S24, 276-286.
[69] Ibid S24, 285.
In her sentencing remarks, Judge Bright summarised Dr Seidler’s findings as follows:
[The Applicant] seems to be someone who has difficulties regulating her emotional state and coping with life stressors and she may also have experienced anxiety and depression. [The Applicant] claimed to have a history of illicit substance abuse. [The Applicant] has been homeless and has led an unstable lifestyle in recent years. [The Applicant] has well-entrenched relationships with anti-social and negative influencing peers. [The Applicant] seemingly has few skills for mature and independent community living. [The Applicant] has engaged in criminal behaviour both as a way of meeting her practical life-style needs but also as a function of being easily influenced by anti-social peers.[70]
[70] Ibid S24, 284-285; G-documents, G4, 42.
Her Honour noted the Applicant’s report to Dr Seidler that ‘her father was a violent man with frequent episodes of domestic violence which she found frightening. Her father was also physically abusive to her… [and] emotionally abusive.’[71]
[71] G-documents, G4, 40.
Remorse and prospects of rehabilitation
In her sentencing remarks, Judge Bright noted that the Applicant had not expressed remorse in her evidence on oath but had, during her record of interview with police, accepted responsibility for assaulting the victim.[72] In relation to the likelihood of the Applicant re-offending, Judge Bright stated:
…any view of the offender’s prospects of rehabilitation must necessarily be guarded having regard to her lengthy criminal history, notwithstanding her young age.[73]
[72] Ibid G4, 43
[73] Ibid.
She however noted it was ‘encouraging’ that the Applicant had completed a positive lifestyle course and education courses while incarcerated. She remarked that she was ‘hopeful that if the offender does maintain a commitment to her own rehabilitation that she is able to look forward to a much more positive future’.[74]
[74] Ibid.
In her letter in support of her revocation request, the Applicant wrote:
…self-medicating with illegal and illicit substances has continued to adulthood [M]y offending behaviour has stemmed directly from my drug and alcohol use, not that that is a good enough reason and the difficulty in finding pro-social coping strategies.[75]
[75] Ibid G13, 84.
She further described the steps she has taken to rehabilitate:
I’ve learnt how to deal and cope with life experiences and if need be learnt how to help and assist other individuals who are dealing with similar issues as myself. I’ve developed ways in helping with my self-esteem and self-respect, learnt about others and foster mutuality and respect for others. In doing so concepts of responsibility, authority and meaningful codes of behaviour have been established.
I have sought help from a number of psychologist[s] and mental health teams through Justice Health (Clinic Staff) for anxiety and depression and panic attacks, I now suffer from, as well as AOD and anger issues. I have used my time in custody to better myself and self-rehabilitate.[76]
[76] Ibid.
In her Personal Circumstances Form, the Applicant wrote that she feels like this is her ‘last chance’ to become a better person, and has ‘attended several programs while in prison, which has given me the tools to help me deal with the issues I will face if I am released’. These include the young offenders program and ‘all aggression courses’. She stated that she was unable to provide evidence such as certificates or completion reports at the time of her request due to the holiday period.[77]
[77] G9, 73.
Behaviour in custody and immigration detention
The Applicant’s customised report dated 23 May 2020 provided by NSW Police records that during the Applicant's incarceration in gaol, she assaulted, intimidated and verbally abused both correction officers and other inmates on multiple occasions.[78] Documentation from the NSW Department of Corrective Services includes incident reports detailing at least 10 instances of the Applicant behaving aggressively or violently in custody.[79] In her oral evidence at the hearing, the Applicant accepted that she was engaged in aggressive behaviour in gaol. She told the Tribunal that in custody the environment is such that it is ‘either kill or be killed’.[80] When she finds herself in a situation where she cannot remove herself from a confrontation, she will fight.[81] If she reports the behaviour of another inmate to the guards it only creates more problems for her.[82]
[78] Supplementary documents – Volume 1, S5, 104-106.
[79] Ibid S27, 304-313.
[80] Transcript, 35-36.
[81] Ibid 36.
[82] Ibid 36-37.
SERCO Incident Detail Reports record numerous instances when the Applicant verbally assaulted and displayed abusive and aggressive behaviour towards officers, including the manager DSM, and other detainees in Villawood Immigration Detention Centre.[83] The most recent incident was recorded on 10 June 2020.[84] The Applicant told the Tribunal that she knows that this behaviour is unacceptable and that most often the fights that have occurred have been because she has been trying to stand up for someone else.[85]
[83] Respondent’s supplementary documents – Volume 2 (‘Supplementary documents – Volume 2’), S1, 1-52.
[84] Ibid S1, 21.
[85] Transcript, 40.
The Applicant confirmed that she started using drugs in gaol and was smoking about three or four times a week.[86] She agreed that she also has been smoking cannabis in immigration detention but denied that she has used ice.[87] She has not consumed any alcohol since she has been incarcerated.[88] She undertook drug and alcohol counselling in gaol and also completed a positive lifestyle program through the chaplain service in custody.[89]
[86] Ibid 41.
[87] Ibid 43.
[88] Ibid.
[89] Ibid 44.
The Applicant told the Tribunal that when she was notified of the cancellation of her visa the second time in November 2017, she attempted to take her own life by slicing her throat. She only survived because there was a doctor at the correctional centre who was able to give her stitches.[90]
[90] Ibid 40-41.
Risk of re-offending
In a pre-sentence report dated 6 October 2017, completed by a NSW Community Corrections Officer, the Applicant was assessed as a ‘high risk of re-offending’.[91] The report noted that the Applicant:
…struggles to comprehend the seriousness of her offending behaviour. She demonstrated little to no contrition for her offending or the subsequent consequences. [She] appeared to demonstrate a dismissive attitude to her offending.[92]
[91] Supplementary documents – Volume 1, S18, 258.
[92] Ibid S18, 257.
The Applicant told the Tribunal that most of her offending has occurred on the Central Coast and that she plans to relocate to Sydney where she has the support of her mother and sister and is therefore less likely to offend.[93] Most of her offending was done under the influence of alcohol and she now does not drink and intends to stay away from alcohol if she is released.[94] She plans to attend Alcoholics Anonymous meetings to assist her with her recovery.[95]
[93] Transcript, 24.
[94] Ibid 43-45.
[95] Ibid 45.
Mental health and psychological treatment
The Applicant told the Tribunal that she is currently taking Seroquel which was prescribed to her by a psychiatrist in gaol. When she went to Villawood her dose was increased as she ceased taking another anti-depressant.[96] She regularly sees a psychologist when they visit the compound, and she also has been to the clinic four or five times.[97]
[96] Ibid 42.
[97] Ibid.
Future plans
The Applicant told the Tribunal that she has never engaged in paid employment although she has done volunteer work, including painting a church and firefighting training.[98] She would like to work as a mechanic or car detailer.[99] She plans to enrol in TAFE and obtain qualifications to enable her to work in this field and give herself a better future and support herself.[100]
[98] Ibid 48.
[99] Ibid.
[100] Ibid 49.
The Applicant has been approved for community housing in Blacktown, but this was suspended while she was in custody.[101] She told the Tribunal that if she were released, she would go into temporary accommodation until she is reassigned to her own house.[102]
[101] Ibid.
[102] Ibid.
Impediments on return
The Applicant identifies as a Maori woman, and in her cancellation revocation request she stated that she could not speak her ‘own language’ and is afraid social isolation may exacerbate her anxiety and trigger panic attacks.[103]
[103] G-documents, G2, 19; G10, 76.
She told the Tribunal that her only family members in New Zealand other than her brother are her elderly grandparents. She is not in regular communication with her grandparents other than an occasional message on Facebook.[104]
EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION
[104] Transcript, 52.
Does the Applicant pass the character test?
The Applicant did not dispute the Respondent’s contention that she does not pass the character test. The evidence before the Tribunal is that on 27 October 2017, the Applicant was convicted of three offences and sentenced to a term of imprisonment of 12 months. As such, the Tribunal is satisfied that the Applicant does not pass the character test prescribed in paragraph 501(6)(a) of the Act, as she has ‘a substantial criminal record’ as defined in paragraph 501(7)(c). The Tribunal is also satisfied, for the purposes of paragraph 501(3A)(b) of the Act, that the Applicant was serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the state of New South Wales.
For these reasons, the Applicant cannot rely on subparagraph 501CA(4)(b)(i) for revocation of the Mandatory Visa Cancellation Decision.
Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked?
In determining whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must take into account the considerations in Part C of the Direction, informed by the Principles in paragraph 6.3.
PRIMARY CONSIDERATIONS
Primary Consideration A – Protection of the Australian community
Primary Consideration A of Part C of the Direction is the Protection of the Australian Community. Paragraph 13.1(1) provides:
When considering protection of the Australian community, decisionmakers should 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. Remaining in Australia is a privilege that Australia confers on noncitizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
Paragraph 13.1(2) directs that decision-makers should also 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.
(a) Nature and seriousness of the Applicant’s conduct to date
Paragraph 13.1.1(1) sets out a number of factors to which a decision-maker must have regard in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. In the circumstances of this case, the following factors may be relevant:
(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 subparagraph (b) above, the sentence imposed by the courts 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) …
(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) …
Having regard to the factors in paragraph 13.1.1(1)(a) and (c) of the Direction, the Tribunal finds that the Applicant’s criminal offending is serious. Her offending has included violent offences, including common assault, affray, assault occasioning bodily harm, and stalk/intimidate with intent to cause fear of physical harm, which have resulted in physical and likely psychological harm to her victims. In her letter dated 1 July 2019, the Applicant acknowledged that ‘the majority of my charges are of a violent nature.’[105] Her offences have resulted in the Applicant being sentenced to a total of 46 months of imprisonment.[106] The seriousness of the Applicant's violent offending and its impact on the community is heightened by the fact many of her offences were committed in the company of others in public places, including on public transport, which instilled fear in the members of the public who witnessed her offending.[107]
[105] G-documents, G13, 83.
[106] Supplementary documents – Volume 1, S4, 85–103.
[107] Ibid S14, 243-245; S16, 248-250; S17, 251-254; S21, 265-268.
The Tribunal has had regard to the sentences imposed on the Applicant by the courts as provided in paragraph 13.1.1(1)(d) of the Direction. The Applicant’s history before the courts shows that she was treated with some leniency, both as a juvenile and as an adult, to give her the opportunity to reform her offending conduct. The courts imposed various supervision orders, good behaviour bonds and control orders as alternative punishments to terms of imprisonment. Despite these opportunities, the Applicant did not modify her behaviour and continued to offend.
The custodial sentences imposed on the Applicant by the courts are an objective indicator of the seriousness of her criminal offending. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy, which reflects the objective seriousness of the offences involved: PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22] and Saleh and Minister for Immigration and Border Protection [2017] AATA 367 at [50]. It finds that whereas the sentences imposed on the Applicant are not at the higher end of the sentencing range, they do not detract from the serious nature of the Applicant’s criminal offending.
The Tribunal has had regard to paragraphs 13.1.1(1)(e)-(f) of the Direction and finds that the Applicant’s criminal offending was frequent and repetitive during the period March 2015 to February 2017. The Applicant regularly engaged in violent and intimidating conduct against her victims, which included physical assaults and verbal abuse. There is an evident trend of increasing seriousness of the Applicant’s offending, with her most serious conviction of demand property with menaces with intent to steal resulting in her being sentenced to two years and three months imprisonment.
The frequency of the Applicant's offending has been such that, since turning 18, she has only spent 12 months in the community, the balance of which she was incarcerated in either criminal or immigration detention. The cumulative effect of her frequent and repeated offending is a significant factor which supports a finding that the Applicant’s conduct is serious.
The nature of the Applicant's criminal offending demonstrates her blatant and consistent disregard for Australian laws and court orders. Her criminal history records that she committed offences while on bail, parole, or under supervision, and on numerous occasions breached bail or failed to appear in accordance with bail undertakings.[108] The Applicant’s continual aggressive and violent behaviour in both criminal and immigration detention further demonstrates her contempt for disciplinary rules and regulations.
[108] Ibid S4, 85–103; G-documents, G5, 49.
The Tribunal has had regard to paragraph 13.1.1(1)(h) of the Direction and notes that the Applicant’s visa was first cancelled on 30 June 2016.[109] This cancellation was revoked on 4 October 2016 following representations from the Applicant..[110] In these representations, the Applicant stated that she was ‘willing to undergo physciatric (sic) assessments’, would ‘continue to seek help once released in the form of councelling (sic), physciatric help’ and that she had the support of her family.[111]
[109] G-documents, G19, 135.
[110] Ibid; G20, 150, 152.
[111] Ibid.
On 4 October 2016 the Applicant acknowledged receipt of the Notice of decision to revoke visa cancellation under s501CA(4) of the Migration Act 1958, which read as follows:
…I understand that I can again be considered for cancellation of any visa I hold if further information of relevance comes to the attention of the department at any time in the future and if this happens, my past conduct and previous relevant information can also be reconsidered.[112]
[112] Ibid G19, 137.
Despite the warning from the Department and the Applicant’s representations that she would seek psychiatric treatment and counselling to address her offending behaviour, she re-offended following her release from immigration detention. In January 2017, approximately three months after her release and while still on parole, the Applicant committed an affray.[113] At this time, the Applicant was living with her father and step-mother who had provided her with accommodation and support following her release, yet this did not prevent her from resuming her offending conduct.[114] There is no evidence that the Applicant sought a psychiatric assessment or underwent counselling following her release from detention, despite her undertakings that she would do so.
[113] Ibid G5, 49.
[114] Transcript, 29.
On the basis of the evidence before it, and having regard to the considerations in paragraph 13.1.1 of the Direction, the Tribunal finds that the Applicant’s criminal conduct has been violent, increasing in frequency and seriousness, and without regard to its consequences, and is therefore serious.
The seriousness of the Applicant’s criminal offending weighs against the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.
(b) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
In assessing the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must have regard to paragraph 13.1.2(1) of the Direction:
In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(c)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(d)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 re-offending (noting that decisions should not be delayed in order for the rehabilitative courses to be undertaken).
Having regard to the nature of the harm to individuals or the Australian community if the Applicant were to re-offend, the Tribunal finds that any future re-offending by the Applicant may involve physical and/or psychological harm to members of the Australian community. The Applicant's criminal offending has included actual and threatened violence, dishonesty offences, and property damage, which were regularly committed in public spaces. The potential harm to individuals and the Australian community should she again engage in such conduct is serious. Her violent behaviour has caused, and has the potential to cause in future, substantial harm to the community being both the psychological and physical impacts of her offending, and the significant financial cost associated with emergency services and law enforcement activities.
In considering the likelihood that the Applicant will engage in further criminal or other serious conduct, the Tribunal has had regard to the Applicant’s evidence to the Tribunal, the representations she made in support of her request for revocation of the Mandatory Visa Cancellation Decision, and the evidence of her family members who provided letters of support.
In relation to the risk of the Applicant re-offending, the Tribunal has noted and placed weight on the remarks of the sentencing judge in respect of the Applicant's February 2019 convictions, namely that her prospects of rehabilitation 'must necessarily be guarded having regard to her lengthy criminal history, notwithstanding her young age'.[115] It also has regard to the evidence before the Tribunal that the Applicant has breached numerous good behaviour bonds and parole conditions imposed by the courts, and she has continued to engage in violent and aggressive behaviour in both criminal and immigration detention. There are numerous incident reports before the Tribunal which record the Applicant engaging in fights, abusive behaviour towards officers and other inmates, and failing to adhere to rules whilst in criminal detention. The evidence also includes immigration detention centre incident reports which record the Applicant assaulting and verbally abusing other detainees and staff members as recently as June 2020.[116]
[115] G-documents, G4, 43.
[116] Supplementary documents – Volume 2, S1, 21.
The Applicant attributes much of her criminal offending to her being under the influence of alcohol at the time of the offences. While she has not consumed alcohol now for a period of more than two years, she has admitted to frequent drug use while in criminal and immigration detention. She was found in possession of drug paraphernalia in immigration detention in September 2016, and in November 2019 she was accused of assaulting another detainee due to her alleged role in slowing down the drug supply in her compound.[117]
[117] G-documents, G16, 93 and 96.
The Applicant also attributes her criminal offending to the trauma she has experienced as a consequence of psychological and physical abuse to which she was subjected as a child from her father and others, her sexual and gender identity issues, and being a victim of bullying due to these issues and her eyesight. She claims that this childhood trauma, together with her anger and personal problems, have contributed to her anti-social and criminal behaviour. The Applicant has however provided limited evidence of the steps she has taken to address these issues. She did not seek professional help or counselling following her release from immigration detention in October 2016, despite claiming in her representations to the Department that she would do so. Her evidence is that she has sought and received psychological help in criminal and immigration detention and that she has been prescribed medication for her psychological condition.[118] The Applicant’s evidence is that she completed courses in criminal detention including the young offenders program and aggression courses.[119] However, despite completing these programs, receiving psychological support and taking medication, the Applicant has continued to engage in violent and aggressive conduct in both criminal and immigration detention.
[118] Transcript, 42.
[119] G-documents, G10, 73.
The Applicant’s evidence is that she intends to seek professional help and counselling and attend Alcoholics Anonymous meetings if she is released into the community. However, she made similar claims prior to her release from immigration detention in October 2016 but did not take the steps necessary to address her issues and obtain treatment to prevent her from re-offending and being sentenced to further terms of imprisonment. This was also despite having the support of her family. The Applicant therefore has a track record of committing to undertake rehabilitation programs, and then returning to her old habits and reoffending as soon as she re-enters the community.
The Applicant claims she has the support of her mother and sister and they will ensure she commits to rehabilitation programs and obtain the professional help she requires.[120] However, the Applicant did not provide any specific information in relation to enquiries or contact she has made with a counsellor and/or a psychologist, or details of the rehabilitation programs she would access in the community if she were released from detention. Furthermore, the Applicant’s father and step-mother provided her with assistance and support in the past, yet they were unable to prevent her from re-offending. The Applicant’s mother and sister did not provide any written or oral evidence to the Tribunal in relation to how they plan to provide the Applicant with the assistance and support she requires to rehabilitate and not re-offend. On the basis of the evidence before it, the Tribunal cannot be satisfied that the Applicant’s mother and sister will be protective factors against her continuing to offend.
[120] Transcript, 59.
The Applicant has no employment history, having never had paid work.[121] She has however undertaken courses in gaol to equip herself with skills, and has experience doing volunteer work, which may assist her in obtaining employment upon release into the community. When questioned about her future plans, the Applicant said she wanted to work as a mechanic or car detailer and she is willing to undertake the courses necessary to obtain these qualifications.[122] The Applicant claims that she has been allocated community housing and therefore she will have secure accommodation upon release.[123] However, she did not provide to the Tribunal any documentation to indicate when this will be made available to her. On the basis of the evidence before it, the Tribunal cannot be satisfied that the Applicant will have secure accommodation or that she will be able to either study or work upon her release, and that these will be protective factors against her engaging in future criminal behaviour.
[121] Ibid 48.
[122] Ibid 48-49.
[123] Ibid 49.
On the basis of the evidence before it, and taking into account available information and evidence on the risk of the Applicant re-offending, the Tribunal finds that the likelihood of the Applicant engaging in further criminal or other serious conduct is at the moderate level, and that this level of risk is unacceptable given the nature of the harm she may cause if she does re-offend.
For the reasons above, and applying the guidance in paragraphs 13.1.1(1) and 13.1.2(1) of the Direction, Primary Consideration A, on balance, weighs against the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration B – The best interests of minor children in Australia affected by the decision
Primary Consideration B of Part C in paragraph 13.2 of the Direction requires decision-makers to make a determination about whether revocation is in the best interests of the child. That consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made.
The Applicant’s evidence is that she does not have any children but she has nephews whom she wishes to support. She has had limited contact with her brother’s twin boys who are aged one year and were born during her time in incarceration, and she stays in touch with her siblings and their children via Facebook and video and phone calls.[124] Her sister’s boys have visited her in detention. There is no evidence that the Applicant plays a parental or other significant role in the lives of her nephews.
[124] Ibid 26-27.
On the basis of the evidence before it, the Tribunal finds that Primary Consideration B does not weigh in favour of the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration C – The expectations of the Australian community
Primary Consideration C of Part C in paragraph 13.3(1) of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The Principles contained in paragraph 6.3 of the Direction are relevant to this primary consideration. Principle 1 recognises that the right of a non-citizen to remain in Australia is a privilege conferred in the expectation that he or she will be law-abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community. Principle 2 recognises that it is the expectation of the Australian community that a visa should be cancelled if the holder commits serious crimes in Australia or elsewhere.
In a number of recent decisions, the Federal Court has considered the scope and application of this primary consideration. In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (‘YNQY’), Mortimer J observed at [76] and [77] as follows in relation to the consideration detailed in this paragraph of the Direction:
[76] In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] …It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese [2016] FCA 348; 248 FCR 296 at [64]-[66]).
In Afu v Minister for Home Affairs [2018] FCA 1311 (‘Afu’), Bromwich J said at [85]:
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 that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65 ...The Tribunal was required to give effect to those norms which is precisely what it did.
Last year, the Federal Court delivered two decisions relating to the approach in determining the expectations of the Australian community: FYBR v Minister for Home Affairs [2019] FCA 500 (‘FYBR’) and DKXY v Minister for Home Affairs [2019] FCA 495 (‘DKXY’).
FYBR is authority in support of what has been termed the ‘narrow’ approach[125] to the determination of the expectations of the Australian community. As observed by Perry J at [42]:
It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the applicant’s submissions, 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. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...
[125] DKXY at [22].
A broader approach to the determination of the expectations of the Australian community was adopted by Griffiths J in DKXY. In Dalley and Minister for Home Affairs [2019] AATA 3738 (‘Dalley’), Senior Member Tavoularis observed at [122] that this decision is authority for the proposition that:
(a) the Government’s views regarding the expectations of the Australian community must be given due regard; and
(b) so must all other circumstances which are relevant in a particular case.
In FYBR v Minister for Home Affairs [2019] FCAFC 185, the Full Court of the Federal Court dismissed an appeal of Perry J’s judgment in FYBR, which was concerned with the correct construction and application of cl 11.3(1) of Direction No 65, which is, in all relevant respects the same as paragraph 13.3(1) of the Direction. In three separate judgments, (Charlesworth and Stewart JJ, Flick J dissenting) did not accept that the paragraph is a ‘deeming provision’ in that it must in all circumstances require the refusal or cancellation of a visa.
Charlesworth J found at [66]-[67] that the paragraph does contain a statement of the government’s views as to the expectations of the Australian community and to this extent, it is a ‘deeming’ provision in the sense explained by Mortimer J. It is not for the decision-maker to make his or her own assessment of community expectations. However, Her Honour emphasised at [73] that the paragraph does not preclude the decision-maker from forming his or her own view as to whether the non-citizen should or should not hold a visa. The decision-maker’s assessment of whether or not the person should hold a visa may differ from the expectations of the Australian community as deemed by the government. As Her Honour stated at [76], ‘[t]he question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion’.
Stewart J emphasised at [89]-[90] that whereas it is to be expected that the Government ‘may wish to set the norms by which decisions to refuse or cancel visas are made’ it is not to be expected that the Government would seek, via this device, ‘to dictate to the statutory decision-maker the outcome’ in any particular case. This would ‘be inimical to the process of decision-making that has been established under the Migration Act and would constitute unlawful dictation to the decision-maker.’ Having regard to the text of the Direction, His Honour found at [103] that Australian community expectations ‘speak normatively’ and are ‘to be applied in every case but they are not expressed in relation to any particular case’. He emphasised at [105] that ‘[t]he specific circumstances of the … applicant are necessarily front and centre of every decision’.
Flick J at [18]-[19] did not accept the ‘unqualified conclusion’ of Mortimer J in YNQY at [76] that Australian community expectations are defined in one particular way, namely that there should be non-revocation of the mandatory visa cancellation in circumstances where a person has been convicted of serious crimes of a certain nature. He also did not accept that the Tribunal may not go beyond the ‘norm’ which the paragraph sets forth and go on to find that there may be other aspects of Australian community expectations of relevance to the facts and circumstances of a given case. His Honour at [20] preferred the approach of Griffiths J in DXKY at [31] that allows a finding that the expectations of the Australian community may not weigh against revocation of the mandatory visa cancellation. His Honour found that this approach was supported by the text of the Direction at [21]-[22]. He emphasised at [23] that in construing the Direction and other statements of government policy, it is necessary to have regard to ‘the overarching imperative that no statement of government policy can confine what would otherwise be the full ambit of any discretionary power conferred by statute’.
In Tuioti and Minister for Home Affairs [2019] AATA 4423, Senior Member Tavoularis observed at [116] that the Full Court’s decision, together with YNQY and Afu establish that:
a) The ‘expectations of the Australian community’ cannot be measured or determined as if it is a provable fact. It is an assessment of community values made on behalf of that community.[126]
b) The Tribunal cannot determine for itself what such ‘expectations’ are by reference to the Applicant’s circumstances or evidence about those expectations;[127]
c) The Government’s view in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the government thinks is the ‘expectations of the Australian community’, and the Tribunal should have due regard of that statement, if made;[128]
d) In assessing the weight attributable to this Primary Consideration C, decision makers can have regard to the principles appearing in paragraph 6.3 of the Direction, in particular subparagraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision maker.[129]
(footnotes in original)
[126] Afu at [85].
[127] FYBR at [42].
[128] FYBR v Minister for Home Affairs [2019] FCAFC 185, paragraph [74] (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
[129] Ibid, paragraphs [77] (Charlesworth J) and [105] (Stewart J).
Having regard to the expectations of the Australian community as stated in paragraph 13.3(1) of the Direction, the Applicant has breached numerous Australian laws and has been convicted of a number of offences in Australia. The Applicant’s offences include serious offences involving violence, which as recognised by Principles 2 and 3 of paragraph 6.3, should generally result in the cancellation of the non-citizen’s visa.
In determining the expectations of the Australian community, the Tribunal has been informed by Principle 5 which provides:
Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
It has also been informed by Principle 7 which provides:
The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
The Applicant arrived in Australia as a two year old child and is now aged 23 years. She attended primary school and high school in Australia and has a number of family and social links in Sydney, the Hunter Valley and the Central Coast. Having regard to the factors in Principles 5 and 7, particularly the length of time the Applicant has been in Australia, the Australian community would likely afford a higher degree of tolerance for the Applicant’s criminal behaviour than if she had been resident in Australia for a shorter period of time. The Applicant has had no paid employment in Australia, and therefore has made a very limited contribution to the Australian economy and has paid no tax. This lack of positive contribution by the Applicant to the Australian economy is a factor that would lower the Australian community’s tolerance of her criminal offending.
Having regard to Principle 7, relevant to determining the expectations of the Australian community are the consequences of the non-revocation of the cancellation decision on the Applicant’s family members in Australia. The evidence before the Tribunal in relation to the impact of the Applicant’s removal from Australia on the Applicant’s immediate family members, particularly her mother, father, step-mother and siblings, is limited. The most recent statement provided by a family member is dated December 2017 and no member of her family was prepared to provide an up-to-date statement or oral evidence before the Tribunal. The evidence before the Tribunal indicates that the Applicant's relationships with her immediate family are strained at best. On the basis of the evidence before it, the Tribunal cannot be satisfied as to whether the Applicant’s family members in Australia will be detrimentally impacted by her removal to New Zealand.
During her more than two decades as a resident in Australia, the Applicant has committed serious, repeated and violent offences which have resulted in terms of imprisonment. Additionally, she has also committed other offences for stealing, damaging property and breaching bail conditions. She has demonstrated disregard for Australian law and rules as they apply in the community and in criminal and immigration detention. The Applicant’s unwillingness to comply with Australian laws and norms and the frequency and seriousness of her criminal offending are such that the community would most likely expect that she should not continue to hold a visa.
Having had regard to the Government’s views in relation to the expectations of the Australian community and giving them appropriate weight, and taking into account other factors relevant to the Applicant’s circumstances, the Tribunal finds that Primary Consideration C, on balance, weighs against revocation of the Mandatory Visa Cancellation Decision.
OTHER CONSIDERATIONS
While the three primary considerations carry particular weight, the Direction acknowledges at paragraph 14 that ‘other considerations’ must be taken into account by the decision-maker where relevant.
The Tribunal notes that these considerations are “other” considerations, as opposed to “secondary” considerations. As Colvin J observed in Suleiman v Minister for Immigration and Border Protection[2018] FCA 594at [23]:
... 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.
International non-refoulement obligations
There is no evidence before the Tribunal that the Applicant engages Australia’s international non-refoulement obligations and therefore this other consideration is of neutral impact.
Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction states:
(1) …Reflecting the principles at 6.3, decision-makers must have regard to:
(a) How long the non-citizen has resided in Australia, including whether the non-citizen has arrived as a young child, noting that:
(i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Having regard to the factors in paragraph 14.2(1)(a), the Applicant has resided in Australia for more than two decades having arrived here in 1999 with her family as a two year old child. She attended primary school and high school in Australia until year 10. She has played competitive sport but has not had any paid employment. Most of her immediate family members and friends reside in Australia.
Having regard to the considerations in paragraph 14.2(1)(b), the evidence demonstrates that the Applicant has significant ties to Australia, particularly her parents, siblings and nephews with whom she wishes to reconnect and be physically present in their lives. Although the Applicant’s father provided a letter of support at the time of her representations in support of revocation to the Department in December 2017,[130] the evidence before the Tribunal is that since at least February 2019,[131] he has not been a significant figure in the Applicant’s life. The Applicant claims to have a positive relationship with her mother and siblings and that her step-mother remains supportive. However, none of her family members are willing to have her live with them and they did not provide her with letters of support during the Tribunal review. In her letter 1 July 2019, the Applicant states that her family are ‘devastated’ about her circumstances and ‘feel that they’ll be losing a daughter, sister’.[132] However, there is no evidence before the Tribunal to confirm that these continue to reflect the feelings of her family members in relation to the prospect of the Applicant’s removal from Australia.
[130] G-documents, G12, 81–82.
[131] Ibid G4, 40.
[132] Ibid G13, 85.
On the basis of the evidence before it and having regard to the factors in paragraph 14.2(1), the Tribunal finds that this consideration weighs marginally in favour of revocation of the Mandatory Visa Cancellation Decision.
Impact on Australian business interests
Paragraph 14.3(1) of the Direction states:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant has had no paid employment prior to her incarceration. There is no evidence of a relevant ‘employment link’, and the Applicant does not claim that any Australian business interests would be affected by her removal to New Zealand.
Impact on victims
Paragraph 14.4(1) of the Direction states:
Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
There is no evidence before the Tribunal on the impact of the non-revocation of the cancellation decision on the Applicant’s victims.
Extent of impediments if removed from Australia
The Direction states in paragraph 14.5(1) that:
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:
(c) The non-citizen’s age and health;
(d) Whether there are substantial language or cultural barriers; and
(e) Any social, medical and/or economic support available to them in that country.
Having regard to the considerations in paragraph 14.5(1)(a), the Tribunal notes that the Applicant is aged 23 years and claims to suffer from depression and anxiety and is currently taking Seroquel.[133] There is however no evidence before the Tribunal of a formal diagnosis having been made of the Applicant’s psychological condition. As the Applicant does not currently have a treatment relationship with a psychologist in Australia, her treatment will not be unduly interrupted by the non-revocation of the visa cancellation. She will however need to establish contact with a psychologist in New Zealand and continue treatment and her medication if she is to remain stable. The Tribunal is satisfied that New Zealand has an advanced health service that is similar to the health service in Australia, and that this includes access to mental health services.
[133] Transcript, 42.
Having regard to paragraph 14.5(1)(b) of the Direction, the Tribunal finds that the Applicant will not face language or cultural barriers on her return to New Zealand as she speaks the language and will readily adjust to the culture in the country, which is not too dissimilar to that in Australia.
The Tribunal notes that the Applicant has limited education, no formal qualifications and has not had any paid employment in Australia. She will therefore face difficulty finding suitable employment unless she undertakes further education or training. The difficulties the Applicant will face settling into life in New Zealand will however be similar to those she would face in re-establishing herself in the Australian community after a number of years in criminal and immigration detention.
The Applicant’s brother has recently returned to live in New Zealand and he has found a job and secure accommodation.[134] Her grandparents also reside there. The Applicant will therefore have access to some family support upon her return. She is likely to maintain the same standards of living in New Zealand as those to which she was accustomed to in Australia.
[134] Ibid, 50.
Having regard to paragraph 14.5(1)(c), the Tribunal finds that the Applicant will have the same access to government services as all New Zealand citizens including health care, welfare benefits and social services. There is no evidence she will be unable to access the same social, medical and economic support available to New Zealand citizens.
On the basis of the evidence before it, the Tribunal finds that, on her return to New Zealand, the Applicant will face hardship, particularly financial and emotional stress, while she finds suitable accommodation, accesses available welfare and mental health services, and looks for a job or education and training opportunities.
Having considered the factors in paragraph 14.5(1) of the Direction, the Tribunal finds that this consideration weighs in favour of the revocation of the Mandatory Visa Cancellation Decision.
CONCLUSION
In summary, the Tribunal finds that Primary Consideration A weighs against revocation of the Mandatory Visa Cancellation Decision. The nature and seriousness of the Applicant’s offences, and the moderate risk of her committing future offences, are such that the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration B does not weigh in favour of revocation of the Mandatory Visa Cancellation as the evidence does not indicate the Applicant has a significant role in the lives of her nephews aged under 18 years.
Primary Consideration C on balance weighs against revocation of the Mandatory Visa Cancellation Decision as the expectations of the Australian community are that the Applicant’s serious offending should cause her to forfeit the privilege of remaining in Australia. The duration of her residence in Australia and the impact of her removal on her immediate family members, are factors that would increase the Australian community’s tolerance for the Applicant’s offending, however not to the extent that its expectation would be that her visa be reinstated.
In regard to the relevant other considerations, only the strength, nature and duration of the Applicant’s ties to Australia and extent of impediments on return New Zealand weigh in favour of revocation of the Mandatory Visa Cancellation Decision.
The Tribunal is not satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, and therefore the decision to refuse to revoke the Mandatory Visa Cancellation Decision is affirmed.
DECISION
The Reviewable Decision dated 22 April 2020 to refuse to revoke the Mandatory Visa Cancellation Decision is affirmed.
I certify that the preceding 142 (one hundred and forty two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk
..............................[SGD]..........................................
Associate
Dated: 3 August 2020
Date of hearing: 1 July 2020 Applicant: In person Solicitors for the Respondent: MinterEllison
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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Jurisdiction
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