Edwards-Lee and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 4628
•18 November 2020
Edwards-Lee and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4628 (18 November 2020)
Division:GENERAL DIVISION
File Number: 2020/5399
Re:Rawiri Edwards-Lee
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member M East
Date:18 November 2020
Place:Perth
The decision of the delegate of the Respondent dated 27 August 2020 not to revoke the decision made under s 501(3A) of the Migration Act 1958 (Cth) to cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is set aside and substituted with the decision that the cancellation of the Applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
........[Sgd]............................................................
Member M East
CATCHWORDS
MIGRATION – Migration Act 1958 (Cth) – mandatory visa cancellation – s 501CA(4) – another reason why the cancellation decision should be revoked – Direction 79 – protection of the Australian community – nature and seriousness of the conduct – the risk to the Australian community – best interests of the child – strength, nature and duration of ties – extent of impediments if removed – decision set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 2A
Migration Act 1958 (Cth) – ss 499, 499(1), 499(2A), 500(1)(ba), 500(6B), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(3), 501CA(4), 501CA(4)(b)(i), 501(CA)(4)(b)(ii)
CASES
Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CZCV and Minister for Home Affairs [2019] AATA 91
DKXY v Minister for Home Affairs [2019] FCA 495
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2020] HCATrans 56
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
Minister for Home Affairs v HSKJ (2018) 266 FCR 591
Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562
Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4171
Nigro v Secretary to the Department of Justice (2013) 41 VR 359
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Minister for Immigration and Border Protection, Direction No. 65, Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (22 December 2014)
Minister for Immigration, Citizenship and Multicultural Affairs, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (20 December 2018) – paras 6.1, 6.2, 6.3, 7(1)(b), 8, 8(3), 8(4), 8(5), Part C, 13(1), 13(2), 13.1(1), 13.1(2), 13.1(2)(a), 13.1(2)(b), 13.1.1(1), 13.1.1(1)(a), 13.1.1(1)(b), 13.1.1(1)(c), 13.1.1(1)(d), 13.1.1(1)(e), 13.1.1(1)(f), 13.1.1(1)(g), 13.1.1(1)(h), 13.1.1(1)(i), 13.1.2(1), 13.2, 13.2(4)(a), 13.2(4)(b), 13.2(4)(c), 13.2(4)(d), 13.2(4)(e), 13.2(4)(f), 13.2(4)(g), 13.2(4)(h), 13.3, 14, 14(1), 14(1)(a), 14(1)(b), 14(1)(c), 14(1)(d), 14(1)(e), 14.2, 14.3, 14.4, 14.5(1)
REASONS FOR DECISION
Member M East
18 November 2020
This is an application for review of a decision made by a delegate of the Respondent
(the Delegate) on 27 August 2020 to refuse to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (the visa) under s 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act).[1] This is the Reviewable Decision that is currently before the Administrative Appeals Tribunal (the Tribunal).
[1] R3, G7.
The Applicant is a 19-year-old citizen of New Zealand. He has lived in Australia since May 2018.[2] His visa was mandatorily cancelled by a delegate of the Respondent on
5 March 2020 pursuant to s 501(3A) of the Migration Act (the Cancellation Decision)[3] following his conviction on 20 September 2019 in the Magistrates Court of Western Australia of ‘Home burglary and commit’ and also ‘Aggravated home burglary and commit’, for which he was sentenced to multiple terms of imprisonment with a total sentence of four years and six months.[4]
[2] R3, G9.
[3] R3, G12.
[4] R3, G8.
The Applicant is currently incarcerated.
The issues for the Tribunal are whether it is satisfied the Applicant passes the character test and, if not, whether there is another reason why the mandatory cancellation of the visa should be revoked.
The Tribunal has decided that the Reviewable Decision should be set aside and substituted with the decision that the cancellation of the Applicant’s visa be revoked.
BACKGROUND FACTS
The Applicant initially lived in Australia from June 2009 until March 2010.[5]
[5] R3, G9.
The Applicant returned to Australia on 22 May 2018 and was granted the visa.[6]
[6] R3, G9.
He was 17 years old at the time and lived initially with his grandmother, until his mother and his four siblings migrated from New Zealand.[7]
[7] Transcript, page 40.
During the period from 18 April 2019 to 25 June 2019, the Applicant committed a spate of burglaries. He burgled 33 homes, two of which were burgled twice.[8] On three occasions he burgled in company which gave rise to three charges of ‘aggravated home burglary and commit’.[9] The value of the goods stolen approximated $40,000.[10] The Applicant was arrested and pleaded guilty to the charges.[11] On 20 September 2019 he was convicted in the Magistrates Court of multiple offences and sentenced as follows:[12]
[8] R3, G10, page 44.
[9] R3, G10, page 39.
[10] R3, G10, page 43.
[11] R3, G10, page 40.
[12] R2, pages 57-61.
·Aggravated home burglary and commit – two years and six months’ cumulative imprisonment;
·Aggravated home burglary and commit (two counts) – two years’ concurrent imprisonment on each count;
·Home burglary and commit (22 counts) – two years’ imprisonment on each count;
·Home burglary with intent (two counts) – 12 months concurrent imprisonment on each count;
·Home burglary with intent – two years’ concurrent imprisonment;
·Home burglary and commit (five counts) – six months’ concurrent imprisonment on each count;
·Attempted aggravated burglary with intent in dwelling – six months’ concurrent imprisonment;
·Attempted home burglary with intent – six months’ concurrent imprisonment;
·Without lawful excuse trespassed on a place (two counts) - $400 fine; and
·Stealing (28 counts) – no penalty.
In total the Applicant received an effective sentence of four years and six months’ imprisonment.[13]
[13] R3, G10.
As a result of the convictions the Applicant’s visa was mandatorily cancelled on
5 March 2020 by a delegate of the Respondent under s 501(3A) of the Migration Act. The basis for the cancellation was that the Applicant did not pass the character test due to having a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months and was 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.[14]
[14] Migration Act 1958 (Cth) (‘Migration Act’) ss 501(6)(a), 501(7)(c).
The Applicant was notified of the Cancellation Decision by letter dated 5 March 2020 delivered by hand to the Applicant in prison.[15] The notice advised that he could make representations to seek revocation of that decision. On 5 March 2020, the Applicant requested revocation of the Cancellation Decision and made representations regarding why the decision should be revoked.[16]
[15] R3, G12.
[16] R3, G13.
On 27 August 2020 the Delegate decided not to revoke the cancellation of the Applicant’s visa. This was the Reviewable Decision. The decision was delivered by hand to the Applicant in prison on 28 August 2020.[17]
[17] R3, G7 and G17.
On 7 September 2020, the Applicant applied to the Tribunal for review of the decision not to revoke the cancellation of his visa.[18]
[18] R3, G2.
The application for review was made to this Tribunal in accordance with ss 500(1)(ba) and 500(6B) of the Migration Act. The Tribunal is satisfied it has jurisdiction to review the Reviewable Decision.
LEGISLATIVE FRAMEWORK
The Migration Act provides special powers for the Respondent to refuse or cancel visas on character grounds. In some circumstances where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision.
These powers generally involve consideration of whether a person passes the character test, and if they do not, the exercise of a discretion about what decision should be made.
The character test is set out in s 501(6) of the Migration Act, which essentially deems that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6) of the Migration Act relevantly provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)
the person has a substantial criminal record (as defined by
subsection (7)); or
…
(Original emphasis.)
A ‘substantial criminal record’ is relevantly defined by s 501(7) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)
the person has been sentenced to a term of imprisonment of
12 months or more; or
…
(Original emphasis.)
Under s 501(3A) of the Migration Act, the Minister must cancel a person’s visa of certain incarcerated persons who do not pass the character test, including because the person has a substantial criminal record as a result of being sentenced to a term of imprisonment of more than 12 months. The person must be 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.
If a visa is cancelled under s 501(3A), the Minister must give the person a written notice inviting them to make representations about revocation of the original decision pursuant to s 501CA(3) of the Migration Act. If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the original decision if satisfied the person passes the character test or that there is another reason why the original decision should be revoked. The revocation decision under s 501CA(4)(b)(i) calls on the decision-maker to first decide whether the person passes the character test and, only if satisfied the person does not, proceed to consider under s 501CA(4)(b)(ii) if there is ‘another reason’ why the cancellation should be revoked.[19]
[19] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
Section 501CA of the Migration Act provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(a)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
(Original emphasis.)
The Minister may give written directions to a person or body exercising powers under the Migration Act if those directions are about the performance of those functions or the exercise of those powers.[20] Further, s 499(2A) of the Migration Act provides that a person or body must comply with such a direction. On 20 December 2018, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No 79 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction No 79) under s 499 of the Migration Act, for people or bodies exercising powers under ss 501 and 501CA. Direction No 79 commenced operation on 28 February 2019.[21]
[20] Migration Act s 499(1).
[21] Direction No 79 is the direction currently in force.
The purpose of Direction No 79 is to guide decision-makers exercising powers under the Migration Act. It creates a framework within which the discretion vested in the
decision-maker is lawfully to be exercised. It identifies certain principles which provide a framework within which decision-makers should approach their task.[22] It prescribes relevant considerations which must be taken into account but provides guidance only as to the manner in which they are to be balanced. It equips decision-makers with a width of discretion that enables them to take into account the different circumstances that may arise and to reach a result that is fair and rational in all the circumstances, while ensuring that account is had to particular considerations.[23][22] Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562, 585 [80]–[81].
[23] Ibid 586 [83]. The Court was discussing Direction No 55, but the reasoning applies equally to Direction No 79.
In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction No 79.
Direction No 79
Paragraph 6.1 of Direction No 79 sets out the ‘Objectives’ of the Migration Act. Paragraph 6.2 of Direction No 79 provides ‘General Guidance’ as follows:
(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.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction No 79 sets out ‘Principles’ which must be taken into account by persons making decisions under s 501CA(4) of the Migration Act, including the Tribunal:
(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.
Informed by the principles set out in paragraph 6.3 of Direction No 79, the Tribunal must take into account the primary considerations in Part C of Direction No 79, with regard to the specific circumstances of the case.[24] Specifically, paragraph 13(2) of Direction No 79 provides:
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.
[24] Direction No 79, para 13(1).
Paragraph 14(1) of Part C of Direction No 79 lists other considerations as follows:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
Paragraph 7(1)(b) of Direction No 79 outlines how a decision-maker is to exercise discretion:
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
a)…
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.
Further guidance as to how a decision-maker is to apply the considerations in
Direction No 79 can be found in paragraph 8 of Direction No 79, ‘Taking the relevant considerations into account’, which provides:
(1)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 to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. 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.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
THE HEARING
The hearing was held on 5 November 2020 in Perth. The Applicant was represented by
Mr Tanguy Mwilambwe of Armstrong Legal. The Respondent was represented by Ms Elle Tattersall of Sparke Helmore Lawyers. Ms Tattersall appeared in person and
Mr Mwilambwe appeared by Microsoft Teams video. The Applicant appeared via video link from prison.
The hearing was held during the COVID-19 pandemic and the Tribunal exercised its discretion to hold the hearing in part by means of electronic communication. The Tribunal determined it was reasonable to hold a hearing in part by electronic communications, having regard to the nature of this matter and the individual circumstances of the Applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the necessity for the Tribunal to make a decision on the application within the statutory timeframe. The Tribunal took steps throughout the hearing process to ensure the proceedings could be conducted in a manner that was fair to both parties, consistent with the Tribunal’s obligations and objectives under the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).[25] The parties did not raise any concerns regarding the conduct of the hearing by electronic means. The Tribunal is satisfied that the parties were given a fair opportunity to give evidence and present arguments.
[25] Administrative Appeals Tribunal Act 1975 (Cth) s 2A.
At the hearing, the Applicant made submissions, gave evidence and was cross-examined. The Applicant also called the following witnesses by telephone to give evidence in support of his application:
·the Applicant’s mother, Ms Edwards;
·the Applicant’s grandmother, Ms Murray;
·Dr Gavan Palk, forensic psychologist; and
·Ms Tangiora Hinak, CEO of Ngaarda Media.
These witnesses were cross examined by Ms Tattersall.
The Applicant also submitted statements from the following witnesses in support of his application:
·Arty Dimitrov, Deputy Principal;
·George Devereux, Youth Co-ordinator; and
·Ms T.
These witnesses were not called to give evidence or be cross-examined. Whilst the Tribunal has had regard to their statements, the Tribunal has afforded less weight to them.
The Tribunal admitted into evidence the following documents:
·Applicant’s Supplementary Statement of Facts and Contentions, dated 30 October 2020 (Exhibit A1);
·Applicant’s Statement of Facts, Issues and Contentions, dated 7 October 2020 (Exhibit A2);
·Undated briefing letter to Dr Gavan Palk requesting psychological report and psychological report from Dr Gavan Palk, dated 9 October 2020 (Exhibit A3);
·Applicant’s resume, Applicant’s employment cover letter and Applicant's employment cover letter for an Electrical Apprentice position, dated 16 January 2019 (Exhibit A4);
·Applicant’s High School Year 12 Semester 2 Report, dated 12 December 2018 (Exhibit A5);
·Verification of identity signed by the Principal of the Applicant’s High School, dated 30 August 2018 (Exhibit A6);
·Bundle of documents, including statement of attainment: Prepare to work safely in the construction industry, dated 2 November 2018; Excellence Award: Swimming, dated 27 November 2018; Excellence Award: Demonstrating leadership and commitment, dated 23 August 2020; Physical education certificate, 2018; Leadership Award, 2018; Attendance Award: for having 97% attendance, undated; Copy of Drivers licence; FunRun certificate, undated; and Certificate, undated (Exhibit A7);
·Applicant’s Statutory Declaration, dated 30 October 2020 (Exhibit A8);
·Letter of support from Arty Dimitrov, Deputy Principal of Applicant’s High School, dated 23 October 2020 (Exhibit A9);
·Character reference letter from George Devereux, dated 16 October 2020 (Exhibit A10);
·Character Reference letter from Tangiora Hinaki, dated 8 October 2020 (Exhibit A11);
·Character Reference letter from Ms T, dated 8 October 2020 (Exhibit A12);
·Character Reference letter from Marie Murray (Applicant's grandmother), undated (Exhibit A13);
·Statutory Declaration of Ruth Maree Edwards (Applicant's mother), dated 7 October 2020 (Exhibit A14);
·Support letter from Ruth Maree Edwards, Owner of Claires Cleaning Services, dated 6 January 2020 (Exhibit A15);
·
Respondent’s Statement of Facts, Issues and Contentions, dated and signed
26 October 2020 (Exhibit R1);
·Respondent’s Tender Bundle, received by the Tribunal on 26 October 2020 (Exhibit R2); and
·
G-Documents, G1-G17 consisting of 119 pages, received by the Tribunal on
18 September 2020 (Exhibit R3).
CONSIDERATION
The Applicant’s criminal history
The Applicant’s offending history is set out in the National Police Certificate dated
8 November 2019.[26]
[26] R3, G8.
A review of that document demonstrates the Applicant committed multiple offences over a relatively short period of time. He also received multiple terms of imprisonment to be served concurrently.
The convictions for which he was sentenced, as described by the Sentencing Magistrate[27] relate to 35 charges. He also had two trespass matters for which he received a fine. The Magistrate stated:
It leaves, though, in essence, that there are 35 charges for which you come to be sentenced. There are 27 home burglary and commit offences and those are the ones with the stealing offences attached. There’s an aggravated – one aggravated home burglary – sorry, three aggravated home burglary and commit offences. There are three home burglaries with intent to commit an offence, one attempted home burglary with intent and one attempted aggravated home burglary with intent.
…
In relation to the circumstance of aggravation, the circumstance which is alleged and properly alleged is that you were in company and that’s on three of the offences, one on 15 June and two on 25 June. Otherwise there are no circumstances of aggravation alleged. All of those burglaries or attempted burglaries took place between 18 April 2019 and 25 June 2019, which is over a period of just under 10 weeks. Your offending only stopped when you were apprehended by police and you’ve been in custody since that time.
[27] R3, G10.
After referring to the cumulative effect of the sentences imposed, the Magistrate said as follows:
equals a total effective sentence of four years six months. That sentence is backdated to 25 June 2019 when you were taken into custody, Mr Edwards-Lee, so that time that you have served – so some three months – is already taken into account and will come off that sentence. You will be eligible for parole given that it is a first offence and as is expressed in the psychological report it is the position that you should be (indistinct).
The four and a-half years takes into account your lack of record, in particular, the 25 per cent discount and your good prospects – sorry, youth and good prospects of rehabilitation. Education will be available to you whilst you’re in custody, Mr Edwards-Lee and you should make that your priority. If you get parole and you are supervised within the community obtaining employment will be – or should be your priority and it is hoped that we won’t see you back at all for any offending in future, but that ultimately will be up to you.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Applicant in his Supplementary Statement of Facts and Contentions states that he does not dispute the criminal offences and convictions.[28] He furthermore concedes that the ‘summonsed documents highlight the Applicant’s offending’.[29]
[28] A1.
[29] A1, para 3.
The character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’ as defined by s 501(7). Relevant to the Applicant’s matter, a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.[30]
[30] Migration Act s 501(7)(c).
The Applicant has been sentenced to a term of imprisonment in excess of 12 months and, as a result, has a substantial criminal record as defined in s 501(7) of the Migration Act and therefore does not pass the character test under s 501(6)(a). The Tribunal is not satisfied that the Applicant passes the character test (see s 501CA(4)(b)(i) of the Migration Act).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
As the Tribunal is not satisfied the Applicant passes the character test, the Tribunal must then consider whether, having regard to the primary and other considerations in Direction No 79, there is another reason why the mandatory cancellation of the Applicant’s visa should be revoked.
Following the notification of the intention to cancel his visa, the Applicant made a written representation to the Department requesting that his visa not be cancelled.[31]
[31] R3, G13-G14.
At the hearing of this matter, the Applicant made written and oral submissions outlining his argument as to why the Cancellation Decision should be revoked. Other witnesses also provided evidence on his behalf.
The primary submissions of the Applicant are that the circumstances surrounding his offending were ‘unique and extraordinary’ and that ‘the Applicant’s rational decision-making process was overridden by his overwhelming dependency on cannabis and desire to financially support the family’.[32]
[32] A1, para 5(a).
He further submitted that his offences should be considered a ‘surge’ and that he lacks the requisite intention to continue his criminal offending absent any dependency on cannabis or strong desires to support the family financially.[33]
[33] A1, para 5(b).
He further argues that his younger siblings and mother are dependent on him both physically and emotionally, his close family all reside in Western Australia and he has no strong family ties if he were to return to New Zealand.
The Respondent has submitted in summary that the protection of the Australian community and the expectations of the community weigh against the Applicant and outweigh other considerations.[34] The Applicant has been convicted of serious offending and if he were to reoffend, the consequences to the community would be so serious that any risk it might be repeated is unacceptable. The Applicant claims he is remorseful and rehabilitated however his rehabilitation is largely untested. The Respondent acknowledges the Applicant’s family ties in Australia and the interests of his minor siblings.
[34] R1.
These submissions will be dealt with in detail.
First primary consideration: Protection of the Australian community
Paragraph 13.1(1) of Direction No 79 provides that:
When considering protection of the Australian community, decision-makers 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…
Paragraph 13.1(2) provides that consideration should also be given to two issues: the nature and seriousness of the Applicant’s conduct to date; and the risk to the Australian community should he commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paragraph 13.1(2)(a) of Direction No 79)
Paragraph 13.1.1(1) of Direction no. 79 further provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed 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;
e)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
f)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
g)The cumulative effect of repeated offending;
h)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
i)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);
j)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.
In considering the protection of the Australian community, the Tribunal must give consideration to the nature and seriousness of the Applicant’s offending and other serious conduct.
The Applicant has conceded that his offending was serious.[35] He has also, however said that he did not fully understand the seriousness of his offending ‘as … he has never had his visa cancelled before, which is a significant consideration’.[36]
[35] A2, para 76(a)(v).
[36] A1, para 3.
The Applicant also stated that the circumstances surrounding his offending were ‘unique and extraordinary’ and his ‘rational decision-making process was overridden by his overwhelming dependency on cannabis and desire to financially support the family’.[37]
[37] A1, para 5.
Ms Tattersall submitted in her closing submissions that there had been an attempt to downplay the seriousness of the offences by reason of these excuses.[38] The Tribunal is not convinced that is his intention. The Tribunal is more inclined to accept that the offending occurred within the context of cannabis use which ultimately would have affected his decision-making ability. The circumstances surrounding the offending do not diminish the seriousness of the offences, as pointed out by the Magistrate.[39]
[38] Transcript, page 81.
[39] R3, G10.
As detailed above, the Applicant was charged with and pleaded guilty to 37 charges of which he was sentenced for 35, with the other two being dealt with by a fine.
In considering the nature and seriousness of the Applicant’s conduct the Tribunal has had regard to the sentencing remarks of Magistrate Ridley:[40]
The real question is a question of totality. That is a sentence that reflects the seriousness of the offending but is not crushing on you, particularly taking into account your age. So, these are offences which, in my view, warrant imprisonment and a term of imprisonment which is in excess of the mandatory minimum. I take into account that imprisonment is a sentence of last resort, but the only question it would seem to me is a question of whether or not that term should be suspended and I will tell you – and I’m sure I raised it on the last occasion – that in my view revisiting all of your personal circumstances is not a case where suspension of a term of imprisonment is appropriate…
I do accept that your early plea does show remorse and you cooperated with police and significant resources were saved as a consequence of that. So, for all of those reasons I am giving you a 25 per cent discount for your early plea of guilty. You have no prior criminal record. Whilst you were only in Australia a short period of time you also have no New Zealand criminal record, so you do come before the court as a first offender.
Youth is a significant or powerful mitigating factor in all of the circumstances. As I have said, all of the offences were committed over a – just under 10-week period and you were between 18 years and four months and 18 years and six months.
[40] R3, G10.
The Applicant was sentenced to four years and six months with his sentences to be served concurrently. A non-parole period of two years and three months was ordered. Furthermore, the Magistrate was positively satisfied that the sentences should not be suspended. The sentence was in excess of the mandatory minimum and reflected what the Magistrate considered the seriousness of the offences.
The Tribunal agrees with the remarks of the Sentencing Magistrate that the offences were regarded as quite serious.
As noted earlier, paragraph 13.1.1(1)(d) requires the Tribunal to have regard to the sentence imposed by the courts for a crime or crimes. The Applicant’s sentence was discounted by virtue of his pleas of guilty, his youth and the lack of any previous record in Australia or New Zealand.
The Tribunal finds the length of the sentence imposed on the Applicant to be significant which indicates the seriousness of his offending.
Subparagraph (e) of paragraph 13.1.1(1) of the Direction states that the frequency and trend of any increasing seriousness should be taken into account. The Tribunal notes that the Applicant had no prior criminal history and the offences occurred over a short period of time. As noted by the Magistrate however, the offending only stopped when the Applicant was apprehended by police and he had been in custody since that time.[41] Over the period that the offending occurred (just under 10 weeks), for three of the offences the Applicant was in company. Despite this however, the tenor of the offences remained the same. The Applicant, either by himself or with a younger accomplice committed a number of burglaries within a short period of time. In cross-examination the Applicant agreed that most of the burglaries took place during the day and he stole goods and money most of which was stored in his bedroom.[42]
[41] R3, G10.
[42] Transcript, page 27.
The Tribunal finds that the frequency of the offending during that short period of time was high and there appeared to be a trend of increasing seriousness which was stopped by his arrest. As noted by the Magistrate, the offending was escalating in both number of offences and the addition of a co-accused with no indication that the Applicant was going to stop.[43]
[43] R3, G10.
The Applicant has submitted that the offences committed should be categorised as a ‘surge’.[44] This is further explained as ‘the Applicant lacks the requisite intention to continue his criminal behaviour absent any dependency on cannabis or strong desires to financially support the family’.
[44] A1, para 5(b).
The Tribunal does not agree with this submission. The facts of the offending, charges and ultimately convictions are all detailed in the remarks of the Magistrate. The reality is that she regarded the offending as increasing in frequency and severity. The Tribunal accepts her findings. The Tribunal finds that the frequency and trend of increasing seriousness of the Applicant’s offending contributes to the assessment of his offending as serious.
Subparagraph (f) of paragraph 13.1.1(1) of the Direction also requires the Tribunal to have regard to the cumulative effect of repeated offending. The Respondent has submitted that ‘[t]he applicant committed dozens of offences in a period of only two months’.[45]
[45] R1, para 30(e).
Again, these facts are not in dispute and it is not an insignificant number of offences given the time period involved and the Applicant’s young age. The Tribunal considers that the cumulative effect of repeated offending with respect to the large number of burglaries contributes to the assessment of the seriousness of the offending.
Subparagraphs (g), (h) and (i) of paragraph 13.1.1(1) of Direction no.79 are all not relevant.
Having regard to all the circumstances of the Applicant’s conduct and offending, the Tribunal considers that the nature and seriousness of the Applicant’s offending and conduct should be regarded as serious. Having said that, the Applicant did not receive the maximum sentence which could have been imposed. The Sentencing Magistrate specifically said that ‘whilst burglaries are inherently serious offences these are not the most serious examples of what is an inherently serious offence’.[46] Furthermore, it did not involve a crime of violence or of a sexual nature (paragraph 13.1.1(1)(a)), did not involve violence against women (paragraph 13.1.1(1)(b)) and was not against vulnerable members of the community or public officers performing their duty (paragraph 13.1.1(1)(c)). Whilst the sentence imposed was serious, it was still regarded at the lower end of the scale of seriousness for those types of offences (paragraph 13.1.1(1)(d)).
[46] R3, G10
The Tribunal finds that the nature of the Applicant’s offending is serious however at the lower end of the scale of seriousness for such offences.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1(2)(b) of Direction No 79)
Paragraph 13.1.2(1) of Direction No 79 provides:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)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 rehabilitative courses to be undertaken).
The Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to the Australian community. This requires both consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be.[47] There is no statutory constraint on the way risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[48]
[47] Nigro v Secretary to the Department of Justice (2013) 41 VR 359 cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424, 444 [95], as well as Gilmour J in Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117, 124[42]-[43]. See also Senior Member Dr M Evans-Bonner in CZCV and Minister for Home Affairs [2019] AATA 91 (‘CZCV’), [56].
[48] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] per Kenny J who referred to the basis for the assessment of the risk of re-offending as requiring a ‘rational and probative basis’.
In considering the risk of harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct, the Tribunal is guided by the sentencing remarks of the Magistrate where she said as follows:
I take into account that the total amount stolen was approximately – or just over $40,000 – some items are sentimental rather than actual value – and, ultimately, conclude that the – whilst burglaries are inherently serious offences these are not the most serious examples of what is an inherently serious offence. Imprisonment, as I’ve said, is a sentence of last resort, but the number and type of your offending is so serious that imprisonment is the only appropriate penalty in my view’.[49]
[49] R3, G10.
Her Honour further said:
I note that overall there are 33 victims of 35 offences. Two of the houses or victims suffered – or two of the victims were burgled twice by you. One of those provided a victim impact statement and the impact of the offending on the second occasion of her house, obviously, significantly impacted upon her. All of those victims – and the court takes into account in any event – have the sense of violation of their personal property and home, loss of sense of safety both within their own home, but few – well, all expressed difficulties sleeping at night, jumping at small sounds, being fearful of coming home not knowing what state they are going to find their house in.
They have also been affected more generally within the community and their feeling of safety within the community more generally is affected. They all suffer some form of anxiety and there’s a particular loss around the sentimental items which haven’t been recovered or unlikely to be recovered and can’t be replaced at all. It is also noted that these offences affect the community at large, not only the victims. It is a ripple effect and as to the community fear living in a small town … the expectation is that people can go to work, they work in difficult circumstances and work long days. It is reasonable that they expect that everything they have worked hard for is still at their home when they return home at the end of that working day.
That has not been the case for 33 victims in this circumstance and as a result of your offending. And, as I say, having read all of the items and, in particular, the presentence report and psychological report, it is inexplicable why a person in your situation who did have so much promise and so much ability found yourself other than – in the greed – in a situation where these offences were committed.[50]
[50] R3, G10.
The Tribunal considers that the nature of harm to individuals or to the Australian community if the Applicant were to reoffend is serious.
In considering the likelihood of the Applicant engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the Applicant reoffending, the Applicant submits the risk is very low for a number of reasons.
These are as follows:
·the Applicant has taken steps to rehabilitate himself, undertaken courses in prison and has attained employment in prison;
·the Applicant has attempted to enrol himself in drug rehabilitation programs while incarcerated;
·the Applicant’s offending was due to his increasing dependency on cannabis;
·the Applicant has not had access to drugs whilst incarcerated;
·his offences were motivated by him wanting to give money to his mother to help support the family and also to support his drug dependency;
·he is remorseful for his actions;
·his mother will employ him in her cleaning business when he is released from prison; and
·he does not want to cause any further harm to his family, particularly his mother and siblings.
The Applicant provided to the Tribunal a report of Dr Gavan Palk, forensic psychologist dated 9 October 2020 together with the letter of instruction from Armstrong Legal.[51]
[51] A3.
Dr Palk was called to give evidence and was cross examined at the hearing by Ms Tattersall.
In his report Dr Palk discusses the reasons given by the Applicant for his offending, namely, cannabis use, influence by a local youth, immaturity and boredom. He said the Applicant is regarded as being a ‘quiet and compliant prisoner who participates in sports and recreation. He is employed full time as a maintenance worker. Prison authorities regard him as a low risk for re-offending’.
The Tribunal has reviewed the ‘offender notes’ in the extract of records produced and notes that apart from some very minor infractions, the Applicant has an exemplary prison record.[52]
[52] R2.
Dr Palk explained that there are a number of protective factors that reduce the Applicant’s likelihood of re-offending. These include:
·potential ongoing employment;
·pro-social goals;
·his mother’s and maternal grandmother’s support;
·a strong desire to remain in Australia and maintain relationships with his mother and younger siblings and provide support for them;
·a determination to refrain from using cannabis; and
·a strong desire to develop a positive future and avoid further offending.
Dr Palk did not consider the Applicant to be particularly antisocial by nature and considered his prospects for rehabilitation to be high and his risk for re-offending to be low.
Dr Palk, in his oral evidence, further stated that another protective factor when he gets out of prison is the structure of a parole setting and the supervision it provides.[53] He said staying away from marijuana was crucial to him not re-offending:[54]
If he goes back to even testing it, he’s going to slip back into that dependency and he’s going to be at risk for reoffending. And no doubt in my mind about that. He’s just got to stay away from the marijuana. And the fact that he’s got an easy dependency on marijuana, he’s got to not make this mistake of switching that to alcohol or any other drug as well.
[53] Transcript, page 61
[54] Transcript, page 63.
Dr Palk described the Applicant as ‘immature’ and when asked for clarification by the Tribunal he explained he meant ‘young’, not immature in the context of his age.[55]
[55] Transcript, page 71.
The Respondent has submitted there is insufficient evidence before the Tribunal to demonstrate that the Applicant has rehabilitated, meaning the risk of harm arising out of him reoffending is real. The basis for their submission is that the sentencing remarks do not support the Applicant’s assertion that he stole to support his drug habit as well as help his mother, instead the offences were described as a matter of greed, not need.
Ms Tattersall further submitted that as the sentencing Magistrate was unable to determine the reasons for his offending it is impossible to predict the chances of him reoffending.
She said assertions of support by his family should be given limited weight because it was not helpful in the past.
Finally, it was submitted that the Applicant has not undergone any formal rehabilitation whilst in prison and his assertions that he has been rehabilitated are untested in the community.[56]
[56] R1, para 34 and transcript, pages 85-87.
What is clear from the evidence of the Applicant and Dr Palk is that his offending took place whilst he was under the influence of cannabis. The Applicant also admitted that he had been a regular user of cannabis since he was 12 years old. Despite this, the offending only occurred during a very small period of time after he moved to Australia. His motivation for the offending, according to his oral evidence was to fund his drug habit and give his mother money to help support the family. The sentencing Magistrate did not accept this explanation saying that his stealing was motivated by greed, not need. This was based on the evidence that approximately $40,000 worth of goods were recovered from his bedroom. The Applicant said in his oral evidence that he wanted to sell the goods but had not.[57]
[57] Transcript, page 24.
The Tribunal is unable to clearly determine what the Applicant’s motivations were, however relying on the evidence of Dr Palk, it is satisfied that cannabis usage was pivotal to his offending. That is, if he abstains from using cannabis, he is much less likely to re-offend.
The Tribunal has therefore considered the Applicant’s drug rehabilitation.
The Applicant’s mother and grandmother both gave evidence by telephone at the hearing and confirmed they would provide whatever assistance the Applicant needed after his release.
In oral submissions, Ms Tattersall conceded that the Applicant was not offered the opportunity to undertake drug rehabilitation in prison, however said he could have undertaken private counselling or attended Narcotics Anonymous (NA).
The Tribunal does not consider either of these options to be feasible. It is highly unlikely the Applicant would be able to afford private counselling and the reality of an 18-year-old young male voluntarily attending NA is also unlikely. There is no evidence suggesting the Applicant has recorded any positive drug tests while in prison and this was also the sworn evidence of the Applicant[58] as well as that of Dr Palk.
[58] Transcript, page 32.
The Applicant has now been incarcerated for approximately one and a half years. The Tribunal acknowledges that the Applicant needs to address the reasons for his cannabis use and accepts his grandmother’s remarks in that regard.[59] The Tribunal notes that his grandmother works in drug and alcohol rehabilitation.
[59] Transcript, page 42.
The Tribunal cannot predict the likelihood of the Applicant re-offending other than to say that relying on Dr Palk’s evidence, if he has the appropriate support mechanisms in place upon his release from prison, his likelihood of using cannabis and re-offending is relatively low. The family members were unequivocal in their disappointment with the Applicant and their intention to fully support him in the future. They both admitted that they had little idea of the extent of his drug use and were dismayed to discover how regular it was. The fact that they did not adequately monitor his behaviour in the past and prevent his offending is not relevant to what they may do in the future. The Tribunal accepts that he has a close and supportive family who will do whatever is necessary to try and ensure he stays out of trouble in the future.
The Tribunal also observed the effect on the Applicant when his mother and grandmother gave their evidence. He was visibly upset when they were discussing their disappointment with him. The Tribunal notes the close relationship between the Applicant and his mother as well as the influence his grandmother has had in his life.
In her evidence his grandmother said the following in response to questioning what sort of support she would give the Applicant when he gets out of prison:[60]
He’d be under discipline with tonnes of love. If I- if we had an opportunity to support him, we would be putting a team – a support team around him like a mini-service around him. A wrap-around service. And there’d be – as an advocate for him. There would be counselling, there would be the right type of therapy, there would be a whole support. There’d be the police involved, there’d be just – you know what I mean? I’d provide a wrap-around service for him.
[60] Transcript, page 35.
Accepting the evidence of close family support and the expert evidence of Dr Palk, the Tribunal is satisfied that upon his release from prison the Applicant will have the appropriate support mechanisms available that would minimise the risk of him using cannabis again and possibly re-offending.
The Tribunal acknowledges that the offences of which the Applicant was convicted in September 2019 were serious, but, as stated by the Magistrate, were at the lower end of seriousness for those offences and represent the Applicant’s only criminal convictions. His offending was over a very short period of time and the offences were committed when he was young and under the influence of cannabis. The motivation for his offences whilst unclear, does not indicate that he has a predisposition to crime.
The Tribunal therefore assesses the likelihood of the Applicant engaging in further criminal or other serious conduct as low.
Whilst the harm to the community of the Applicant’s offending is naturally serious, the risk of the Applicant engaging in criminal behaviour as he has in the past is sufficiently low to make the risk to the community not unacceptable.
The Tribunal therefore finds that the first primary consideration weighs slightly against revocation of the cancellation of the visa.
Second primary consideration – Best interests of minor children in Australia affected by the decision
Paragraph 13.2 of Direction 79 provides:
(1)Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)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.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) 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;
d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e) Whether there are other persons who already fulfil a parental role in relation to the child;
f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant is not a father but has made submissions regarding the ‘father role’ he has fulfilled with respect to his four younger siblings who reside in Australia and are 17, 15, eight and three years old.[61]
[61] R3, G14.
The evidence is clear that the Applicant’s mother is raising the children as a single mother and their father lives in New Zealand. The mother does have a large family network in Australia that would assist her.
The Respondent has submitted that the Tribunal may find that this consideration does weigh in the Applicant’s favour but does not outweigh the other primary considerations.
No evidence was provided suggesting that the best interests of the individual siblings differs between them and therefore the Tribunal has considered the factors as applying equally for all the children.
In the Applicant’s request for revocation, he stated:[62]
My younger brother … who is now 17, we have always been very close to one another growing up together.
Following him is my brother … who is 14, with him I’ve been close to a guardian I’ve always supported him with his schooling & outer school activities like sports.
My youngest siblings … who is 7 and … who is 2, to them you could almost call me their father figure.
I’ve had to change their nappies as babies and them growing up, I want to be there for them to help them nurture & guide them through their life so they can become the best they possible can and a better citizen to Australia than I ever was.
[62] R3, G14, G15; A8.
Regarding paragraph 13.2(4)(a), the Applicant being the eldest, has had relationships with all his siblings for their lives and has been actively involved in their upbringing. Evidence was led from his mother and how she has relied on him as a ‘father figure’ in their lives.[63]
[63] Transcript, page 38 and 46.
Regarding paragraph 13.2(4)(b), if the Applicant refrains from using cannabis and does not commit further offending, the Tribunal finds he should continue to be a positive role model for his siblings into the future. The Applicant gave evidence that he supports his siblings with school and outer-school activities.
Regarding paragraph 13.2(4)(c) no evidence was led regarding the effect of the Applicant’s prior offending and, more importantly, drug use had on his siblings. His oral evidence conceded that he did smoke cannabis while he was looking after his siblings, however there was nothing to suggest the children were negatively impacted.
Regarding paragraph 13.2(4)(d), the Applicant’s mother gave evidence that her younger son misses his brother while he’s been in prison.[64] Furthermore, the Applicant’s mother gave clear evidence that she has relied on the Applicant to help her physically and emotionally with the other children. The Respondent has submitted that the siblings could maintain communication via electronic means and that they could visit him in New Zealand. The Tribunal notes that these are all possible, but not practical options. The two younger children would not be able to make a meaningful connection with their brother via electronic means and travelling to New Zealand does not appear to be an option financially for the family.
[64] Transcript, page 48.
Regarding paragraph 13.2(4)(e), clearly the Applicant’s mother fulfils a parental role in relation to the children and there is also the benefit of an extended family.
Paragraphs 13.2(4)(f), (g) and (h) are all not relevant to the Tribunal’s consideration.
The Tribunal therefore finds that this consideration does weigh in favour of the revocation of the visa and gives it more weight than the other primary consideration.
Third primary consideration: Expectation of the Australian community
Paragraph 13.3 of Direction 79 provides:
(1)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.
As detailed by DP Boyle in Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4171 at [87]-[90], the proper construction of paragraph 13.3 of Direction 79 has been the subject of much judicial analysis. The starting point for most of the recent analysis was Justice Mortimer’s decision in YNQY v Minister for Immigration and Border Protection[65] (YNQY). The two approaches that emerged following her Honour’s decision in YNQY were the so-called broad approach of the type taken by Griffiths J in DKXY v Minister for Home Affairs[66] (DKXY) and the so-called narrow approach of the type taken by Perry J in FYBR v Minister for Home Affairs[67] (FYBR).
[65] [2017] FCA 1466.
[66] [2019] FCA 495.
[67] [2019] FCA 500.
That debate as to which approach is correct appears to have been resolved by the
Full Court of the Federal Court in FYBR v Minister for Home Affairs[68] (FYBR (FC)).
The Full Court, in effect, found that the narrow approach taken by Mortimer J in YNQY and by Perry J in FYBR is the correct approach, that is, the approach that the proper characterisation of this consideration is a ‘kind of deeming provision’ – expressing
‘an expectation deemed by the government to be held by the Australian community’ (FYBR (FC) at 472 [67] and [80] per Charlesworth J; see also Stewart J at [89]). A thorough analysis of the Full Court decision in FYBR (FC) is set out by Member Burford at [162]-[170] in her decision in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[69] (Rehman).
[68] (2019) 272 FCR 454.
[69] [2019] AATA 4424.
Special leave was sought to appeal the decision in FYBR (FC). On 24 April 2020 the
High Court (Kiefel CJ and Keane J) refused special leave.[70]
[70] FYBR v Minister for Home Affairs [2020] HCATrans 56.
Having reviewed the above and other relevant authorities, Member Burford in Rehman said:
173.It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government’s view deeming the expectations of the Australian community to be that the Applicant, having committed a serious crime, should not hold the visa.
Those expectations remain a primary consideration to which appropriate weight must be given. As expressed, or “deemed” in the Direction, they weigh against revocation with respect to “serious crimes”.
174.However, it remains for the Tribunal to determine what constitutes appropriate weight to be given to this consideration in the ultimate decision. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations.
The Applicant committed a series of relatively serious crimes. The Australian community would expect that the Applicant should not hold a visa, that is, that the cancellation of his visa should not be revoked. However, the Applicant’s record is not particularly bad. His offending is limited in time to a very short period of time, in the context of cannabis use. At the time of his offences he was 18 years old and has been described by Dr Palk as immature. There is no evidence of prior offending in Australia or New Zealand and all the evidence submitted suggests the Applicant was well respected at school and in his community.[71] In these circumstances, while this consideration must weigh against the revocation of the cancellation of the visa, the Tribunal considers that this consideration should be given only minor weight.
[71] A4, A5, A6, A7, A9, A10 and A11.
Other Considerations
Paragraph 14 of Direction 79 provides:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
International non-refoulement obligations (14(1)(a))
The Applicant does not assert that any non-refoulement issues arise in his case.
On the material that has been put before the Tribunal it is satisfied that this is not a relevant consideration.Strength, nature and duration of ties (14(1)(b))
Paragraph 14.2 of Direction 79 is as follows:
(1)The strength, nature and duration of ties to Australia. 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 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).
The Applicant has lived for most of his life in New Zealand.[72] He moved here in May 2018, ahead of his mother and siblings. When he moved to Australia he lived with his grandmother. Prior to that he had spent approximately nine months in Australia from June 2009 to March 2010.
[72] R3, G9.
Evidence provided both in oral evidence and in the witness statements of his mother and grandmother[73] is that the Applicant attended school during second semester of 2018 and after graduation tried to find a job or a traineeship. His grandmother’s evidence was that she helped him build his resume and apply for interviews. He was unsuccessful in his attempts and was unemployed.[74] At that time his cannabis use increased, and he started offending.
[73] A13 and A14.
[74] Transcript, page 41.
Whilst it is fair to say that the Applicant has not made much of a positive contribution to the Australian community, has not been here long and started offending quite soon after he arrived, in the context of his age and circumstances, the Tribunal is not prepared to place much weight on this. He had attended school after he arrived, and a review of the character references provided indicate that he was well regarded at school and was considered a positive role model within the school community. The evidence showed he made active attempts to find employment after graduating from high school but was unsuccessful. Furthermore, his mother was working, and he was caring for four young siblings (albeit whilst smoking cannabis). In the context of his life circumstances and in comparison, to other 18-year-old unemployed school graduates, it would not be expected that his contribution to society would be that high.
The evidence is clear that the Applicant has an extended family in and around the town his family live in. The evidence is also consistent that the Applicant’s social and family ties to his mother, his grandmother and his siblings are strong. They have strong emotional links and the Applicant’s removal from Australia would have a very significant emotional and financial impact. The Applicant’s mother said in her evidence that she would be willing to relocate back to New Zealand, but the financial strain would be massive.[75]
[75] Transcript, page 47.
The Tribunal finds that this consideration weighs in favour of the revocation of the cancellation of the Applicant’s visa.
Impact of Australian business interests (14(1)(c))
Paragraph 14.3 of Direction 79 provides:
(1)Impact of 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 Respondent has submitted that there is no evidence that non-revocation would significantly compromise any major project or important service.[76] They also submit that the Applicant has never worked in Australia. Whilst his mother has promised he will be employed in her cleaning business, the Tribunal would not classify that business as either a major project or an important service.
[76] R1, paras 58-59.
The Tribunal finds that this consideration is neutral in this matter.
Impact on victims (14(1)(d))
Paragraph 14.4 of Direction 79 provides:
(1)Impact of a decision not to revoke the cancellation on members of the 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.
This paragraph requires consideration of the effect that a decision not to revoke the cancellation of the non-citizen’s visa would have on members of the community, including victims.
Ms T, provided a statement to the Tribunal.[77] She stated:
I do not personally know Mr Edwards-Lee. I have made acquaintance with his mother, Ruth. We had met through work and continued to form a friendship, from there we have realized that Mr Edwards-Lee had broken into and burgled my property.
…
I ask that the court consider not sending Mr Edwards-Lee back to New Zealand and keep him with his family, I believe, even though I know the upset, disruption and fear it caused my family, I do believe that every one does deserve a second chance.
[77] A12.
Ms Tattersall submitted that this statement does not fall under this consideration as it does not talk about ‘any impact on the victim’. The Tribunal agrees with this submission.[78]
[78] Transcript, page 95.
The Tribunal does not have sufficient information before it to assess the impact of a decision not to revoke the cancellation of the Applicant’s visa on the victims of his criminal behaviour or the family members of the victims.
There is no evidence about the impact on members of the Australian community more generally. Aside from the risks of harm to the community which have already been discussed in the context of the protection of the Australian community, the Tribunal finds that there is likely to be little, if any, specific impact from a decision not to revoke the visa.
The Tribunal finds this consideration to be neutral.
Extent of impediments if removed (14(1)(e))
Paragraph 14.5(1) of Direction 79 provides:
(1)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 substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
The Applicant is only young and has lived in New Zealand for most of his life. The evidence led at the hearing demonstrated that his close family network is in Australia however he also has a father and other siblings still in New Zealand, as well as extended family members. While the applicant may face difficulties in resettling, there is no evidence to suggest that he will not be able to maintain basic living standards in the context of what is available to other citizens of New Zealand.
The mother’s evidence was that if the Applicant is deported she will go back to New Zealand with him together with her four other children. When questioned about the impact to the family if they returned to New Zealand she said as follows:[79]
when we came here I sold everything. I don’t have anything back home. I don’t have any furniture, I don’t have – so the cost of going back would be one, and the cost of setting up again would be massive. I don’t have a business back home. I probably couldn’t start a business. It’s not like – where we come from there’s not like – there’s no round the clock shift work. It’s not a mining town. There’s no – I wouldn’t. Yes I definitely wouldn’t be able to do what I’m doing now.
[79] Transcript, pages 47-48.
She concluded by saying it would be a ‘struggle’ to find work.
The Tribunal is satisfied that there would be a significant impact to the Applicant and his family if he was to be deported. Given the Applicant’s mother’s evidence, the Tribunal finds that the Applicant would have a support system if he were returned to New Zealand. However, this move to New Zealand would likely have a negative impact on his family because of the financial burden of moving countries. Having said that, he has lived most of his life in New Zealand and has an existing family network there. In addition to that, his mother has said she would move the family back with him. The Tribunal accepts there would be a significant financial and emotional burden on the Applicant’s mother as a result of that move. The consideration weighs in favour of revoking the cancellation of the visa, however the Tribunal only places minor weight on this consideration.
The Weighing Exercise
Guidance is given by Direction 79 as to how the decision-maker should apply the primary and other considerations. Paragraphs 8(3), (4) and (5) of Direction 79 are relevant.
They provide:(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While these cases were generally looking at that exercise under Direction 65, the same considerations apply to the exercise required by Direction 79 which is materially in the same terms. The leading case in this regard is Suleiman v Minister for Immigration and Border Protection.[80]
[80] [2018] FCA 594; See also the Full Court of the Federal Court decision in Minister for Home Affairs v HSKJ (2018) 266 FCR 591 and CZCV at [164].
Looking at the first primary consideration, the protection of the Australian community, the relevant consideration is whether the risk is an unacceptable one taking into account the nature and seriousness of the harm that would be caused if there was a repeat of the behaviour and the likelihood of that occurring. For the reasons set out above, the Tribunal has assessed the likelihood of the Applicant offending as sufficiently low to make the risk to the community not unacceptable. The first primary consideration weighs against revocation of the cancellation of the Applicant’s visa, though less weight is given to this consideration, given the low risk of the Applicant offending.
In relation to the second primary consideration the Tribunal finds that the best interests of the minor children being the Applicant’s minor siblings are best served by the revocation of the visa cancellation. The Tribunal affords this consideration greater weight.
With respect to the third primary consideration, the expectations of the Australian community, the Tribunal has found that this must weigh against revocation of the visa cancellation. For the reasons given however the Tribunal considers this consideration should only be given minor weight.
In relation to the ‘other considerations’ identified in Direction No 79, the strength, nature and duration of ties that the Applicant has to Australia weighs in favour of revocation of the cancellation. The extent of the impediments if he was to be removed weighs in favour of revocation of the cancellation of the visa.
Both the impact on Australian businesses and the impact on victims is neutral in this matter.
Having weighed the considerations for and against revocation of the cancellation of the Applicant’s visa, the Tribunal finds that it weighs overwhelmingly in favour of revocation of the cancellation of the visa.
Accordingly, the Tribunal finds that there is another reason why the Cancellation Decision should be revoked.
DECISION
The decision of the delegate of the Respondent dated 27 August 2020 not to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is set aside and substituted with the decision that the cancellation of the Applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Migration Act.
I certify that the preceding 161 (one hundred and sixty-one) paragraphs are a true copy of the reasons for the decision herein of Member M East
...[Sgd].....................................................................
Associate
Dated: 18 November 2020
Date of hearing: 5 November 2020 Solicitors for the Applicant: Mr Tanguy Mwilambwe, Armstrong Legal Solicitors for the Respondent: Ms Elle Tattersall, Sparke Helmore Lawyers
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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Natural Justice
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Procedural Fairness
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Statutory Construction
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Remedies
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