Engi and Minister for Immigration and Border Protection (Migration)
[2017] AATA 1450
•12 September 2017
Engi and Minister for Immigration and Border Protection (Migration) [2017] AATA 1450 (12 September 2017)
Division:GENERAL DIVISION
File Number(s): 2016/6682
Re:Joseph Kane Engi
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Senior Member M J McGrowdie
Date:12 September 2017
Place:Sydney
The Tribunal sets aside the decision under review and substitutes a decision revoking the cancellation of the applicant’s class TY subclass 444 Special Category Visa.
...............[sgd].........................................................
Senior Member M J McGrowdie
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass character test – substantial criminal record – discretion to revoke mandatory cancellation of applicant's visa – Ministerial Direction No. 65 applied – protection of the Australian community – nature and seriousness of the relevant conduct – risk to community should conduct be repeated – expectations of Australian community – strength, nature and duration of ties – extent of impediments if removed – decision set aside and substituted with decision revoking mandatory cancellation
LEGISLATION
Migration Act 1958 ss 4(1), 499(1), 501
SECONDARY MATERIALS
Direction No. 65 under s 499 of the Migration Act 1958 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member M J McGrowdie
12 September 2017
INTRODUCTION
The applicant was born in December 1987. He arrived in Australia with his parents and siblings from New Zealand in August 1995 when he was aged 7 years and has remained in Australia since. His usual residence is in the Wollongong area with his parents. The applicant is now 29 years old. Relatively recently he was convicted of an offence and sentenced to a term of imprisonment for 12 months but was released from gaol in November 2016 and then taken into Immigration Detention as his visa was cancelled upon the basis that he did not meet the character test because of a substantial criminal record.
GENERAL BACKGROUND
The applicant seeks review of the decision of the delegate of the Minister not to revoke a mandatory cancellation of his visa under s 501(3A) of the Migration Act 1952 (the Act). At the time of the cancellation, the applicant was the holder of a class TY subclass 444 Special Category Visa. This was automatically cancelled following the applicant having been sentenced to 12 months imprisonment for a crime.
It is clear that the applicant would not satisfy the character test in view of his criminal record. An exercise of discretion to revoke the mandatory cancellation was sought by the applicant and declined by the Minister’s delegate who gave consideration as to the way in which the discretion is to be exercised according to Direction 65 made under s 499 of the Act.
THE LEGISLATION AND MINISTERIAL DIRECTIONS
As set out in the respondent’s written submissions, the discretion is to be approached by reference to the framework of the principles in paragraph 6.3 of Direction 65.
In general terms paragraph 6.3 clearly indicates that coming to or remaining in Australia is a privilege for non-citizens and that there is an expectation that such persons will obey the law. Where there has been criminal offending, the risk of re-offending is an important consideration given the principle that Australia has a low tolerance of criminal conduct, particularly in the case where persons who have only lived in Australia for a short time and particularly for those holding a limited stay visa.
Paragraph 6.3 also makes clear that a consideration of the person’s contribution to the Australian community and the consequences of a cancellation on children and other family members are relevant to the exercise of the discretion.
Crimes of a violent or sexual nature are regarded as particularly serious.
There are three primary considerations under Part C of Direction 65 in determining whether to revoke a mandatory cancellation. They are:
(a)protection of the Australian community;
(b)the best interests of minor children; and
(c)expectations of the community.
There are other considerations which are relevant, namely:
(a)The strength, nature and duration of ties to Australia; and
(b)The extent of impediments if removed from Australia.
THE APPLICANT’S HISTORY
The applicant has lived in Australia since he was 7. Notwithstanding solid and supporting parents, the applicant appears to have something of a troubled adolescence and early adulthood. This has been marked by the excessive use of alcohol and some drug taking.
The entirety of the applicant’s immediate family live in Australia who have strong roots in this country with some Australian ancestry. There is a maternal grandmother in New Zealand who lives outside of Auckland, who is of advanced years and who would be something of a stranger to the applicant.
The applicant has two sons from a previous relationship and they have been embraced by the applicant’s parents and family.
Although the applicant’s sons live with their mother, they are frequent visitors to the home of the applicant’s parents, where he would ordinarily live. They sometimes stay overnight. The applicant appears to have a close bond with his sons and he has been actively involved in their lives.
The applicant’s former partner herself has seemed a troubled lady and the relationship between the applicant and his former partner was often stormy. Nonetheless, there appears to have been ongoing association even though the applicant’s former partner has been involved in more recent times with another man and she became pregnant in this new relationship. Close contact with the applicant’s partner by the applicant’s mother because of the applicant’s children, has been maintained.
The applicant had maintained casual manual employment over the years mainly associated with the applicant’s father’s work activities.
Both the applicant’s mother and father gave evidence in the proceedings. This evidence was in support of the applicant but with the knowledge of the shortcomings displayed by the applicant over a period of time. Despite the close relationship, their evidence seemed objective and at the same time highlighted an established family structure which has included the applicant.
The applicant conveyed his belief that his inappropriate use of alcohol and at times drugs, have been a source of his “misbehaviour” in many instances.
It is surprising in many ways that the applicant, who had a supporting family, work and children, did not have that stable a life. It appears however that the applicant’s particular lifestyle was not one of great stability. Depression has also been a factor. The applicant gave evidence that he had no awareness that he was in Australia on a visa which would be cancelled where the applicant was convicted of a “serious crime”.
THE APPLICANT’S CRIMINAL HISTORY
The applicant’s criminal record is set forth in the respondent’s submissions as well as in a summary handed up by the respondent at the hearing to assist the Tribunal. This document is headed “Table of Offences”.
There are a number of driving offences, which included driving with high range PCA and driving whilst unlicensed or disqualified.
On 27 November 2014 at Port Kembla Local Court the applicant was convicted of offences involving “domestic violence” committed on 28 August 2014. He was put on a six month bond.
According to the Facts Sheet, the applicant had been at home with his then partner and their children. The applicant and partner had previously been consuming alcohol. The applicant yelled and screamed at his partner and kicked her car door. In retaliation, his partner kicked over his motorcycle. In the garage, the applicant punched a hole in the wall which went through to the lounge room. His partner then went to ring the Police. At this time, the applicant grabbed a pair of scissors from the kitchen and held them in his hand and said “I’ll stab you if you call the Police”. Police arrived shortly thereafter. As the applicant had left the premises prior to their arrival, Police applied for an urgent interim Apprehended Violence Order, which was granted.
On 17 June 2016 at Wollongong Local Court the applicant was convicted of offences in connection with the theft of property from a van and assault committed on 1 February 2015. This might be described as the main event. It resulted in a 12 month custodial sentence to commence on 12 July 2016. The applicant was released early and taken into immigration detention. According to the Facts Sheet, in the early hours of the morning the victim was alerted by a sound and saw the applicant carrying a plastic container which the victim had in his van and which contained the victim’s belongings for work. The victim pursued the applicant and when the victim was some two metres away from the applicant, the applicant swung around the plastic container hitting the side of the victim’s face including the eye socket. Shortly after the applicant shouted at the victim to run or he would kill him. The victim was later treated for his wounds.
Prior to his Court appearance the applicant was referred to a MERIT Programme, however failed to attend his assessment on 31 May 2016 and his file was closed. Apparently the applicant later explained that he did not attend the assessment because he “felt crook”. The applicant had also failed to abide by his bail conditions to report to Police. The MERIT Programme was to address the applicant’s drug use (of cannabis), and probably his alcohol problems.
In preparation for a pre-sentence report, the applicant’s sister was contacted. She reported the applicant’s long-standing depression and an attempted suicide in early 2016. The applicant’s treating doctor provided the applicant with a referral for psychiatric assessment but the applicant did not follow through.
In the sentencing remarks, the Magistrate accepted that the applicant did have serious drug and alcohol issues as well as mental health issues. The Magistrate appears to have accepted that when the applicant committed the assault on 1 February 2015 it was reckless rather than intentional and was the applicant’s reaction in the heat of the moment.
It is also to be noted that at various times, the applicant has been in breach of bail conditions.
There is another incident which occurred on 1 April 2016 which was dealt with by the Court. It involved the applicant being in possession of goods, namely a Rolex watch believed to have been stolen. The applicant told Police at the time that it belonged to his father. At the hearing the applicant said that his former partner had it at her house and he took possession of it. I understand it came with a box and a certificate and was valuable.
There are numerous other instances where the applicant has run afoul of the law. They establish a pattern of behaviour where the applicant’s behaviour over the years could be described as most unsatisfactory. It is of concern that such behaviour has manifested itself against a background of a supportive family. The applicant has responsibilities both to his family and sons.
The applicant’s demeanour at the hearing was of a person who did not deny his past conduct but a person who had come to realise the position he was in and remorse for that. He spoke of his attachment to his sons and parents. Both the applicant’s mother and father gave evidence of their support.
APPLICATION OF DIRECTION 65 IN THE PRESENT CASE
The application of Direction 65 calls for the balancing of a number of matters that require consideration. In this case, Part C of Direction 65 has particular application.
Primary considerations
In deciding whether to revoke a mandatory cancellation the following are primary considerations:
(a)Protection of the Australian Community from criminal or other serious conduct;
(b)The best interest of minor children in Australia; and
(c)Expectations of the Australian Community.
Protection of the Australian community
In considering the Protection of the Australian Community decision makers should 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 misconduct.
With regard to the nature and seriousness of the conduct to date, regard must be had to factors including the principle that violent and/or sexual crimes are viewed seriously and crimes committed against vulnerable members of the community or government representatives or officials are serious.
There is no doubt that the offences committed by the applicant should be regarded as serious. Relevant is that the applicant was sentenced to a term of imprisonment for 12 months for his most recent offence, and that there is one “domestic violence” offence.
In respect of the offences of larceny and assault which led to the term of imprisonment, I am mindful of the Magistrate’s sentencing comment that the assault was not pre-meditated and was somewhat reckless. It was not an offence that should be regarded as towards the upper end of seriousness.
The domestic violence offence also can be viewed as part of the stormy relationship between the applicant and his former partner, a relationship which had been formed in their early years. Not that the event is one to be condoned but rather as one which did not give rise to actual physical harm to the applicant’s former partner. Both had been drinking and the situation developed beyond what would properly seem as acceptable. Nonetheless, in the general range of such offences and seen in context it is probably in the lower range.
In terms of the applicant’s overall conduct over the years, the applicant has shown something of a disregard to authority but viewed as a whole he has not been involved in conduct which caused major harm.
Risk to the Australian community
Should the applicant have continued with the conduct he has engaged in up to recent times there is no doubt that such conduct would pose a risk to the Australian community.
However, given the applicant’s appreciation of the problem he has presented and his demeanour during the hearing where he exhibited remorse and showed an appreciation of what his alcohol and drug use has got him, I believe that there is a real prospect of rehabilitation were he to have the opportunity. He knows that the welfare of his two sons and the wellbeing of his family are at stake.
This leads me to the conclusion that the risk now posed to the community is somewhat lessened.
Other factors in assessing the nature and seriousness of conduct to date include:
(a)The sentence imposed by the Courts;
(b)The frequency of offending and whether there is a trend of increasing seriousness;
(c)The cumulative effect of repeated offences;
(d)Whether the applicant has attempted to conceal his offending;
(e)Whether the applicant has been warned or made aware that his immigration status could be affected; and
(f)Whether the applicant has committed a crime in immigration detention.
I have abbreviated the description for the above considerations but the import of these considerations has been included in the description.
A 12 month sentence is significant but it is not surprising given the applicant’s string of prior offences. The sentence however is the minimum sentence to have triggered a mandatory cancellation.
There are a significant number of offences over a period and although the last was more serious than previously recorded and resulted in a 12 month sentence I would not conclude that the applicant’s offending has shown a positive trend of increasing seriousness.
The history of offending does have a cumulative effect, however in this case an examination of the particular offences show that they are not in the upper range of seriousness.
The applicant appears to have been open and frank with regard to his offending and blames much of it on his use of alcohol and drugs (such as cannabis). Whilst this does not excuse the offences it helps explain them particularly when viewed in the context of the applicant’s lifestyle in more recent times.
As mentioned, the applicant had no appreciation that he was in Australia on a visa which could be revoked.
The applicant has not, to my knowledge, been brought before the Court in respect of a charge for an offence whilst the applicant has been in immigration detention. He would appear from his detention record to have come to the notice of authorities with regard to “minor” incidents.
In assessing the risk to the Australian Community, the Tribunal is to have regard to:-
(a)Whether the applicant represents an unacceptable risk of harm given that the community’s tolerance decreases as the seriousness of potential harm increases and that some conduct and harm, which if repeated, is so serious that any risk may be unacceptable; and
(b)The cumulative effect of:
(i)the nature of the harm; and
(ii)the likelihood of the applicant engaging in further or other serious conduct without there being a delay in order for rehabilitation courses to be undertaken.
I would consider that the nature of the harm inflicted by the applicant, whilst not being trivial, has to be assessed with regard to the degree of seriousness which appears to be towards the lower end, given the circumstances and context of the events which gave rise to the harm.
Given the appreciation which I would accept the applicant now has of his behaviour, the risk of his re-offending has somewhat diminished. The risk that he will re-offend is, in my view, not significant if he was to be given the chance of resuming life in the Australian community with the available support of his family, the applicant’s responsibility to his sons and the risks he would face if he re-offended.
Best interests of minor children in Australia
It is my view that the best interests of the applicant’s two sons would be served if the applicant was allowed to remain in Australia. If the applicant was not in Australia the access of these children to their father would be extremely limited. In reality, the fostering of a continued relationship between the applicant and his sons would be best served by the applicant remaining in Australia.
There was evidence that the applicant is well advanced in skateboarding skills and that he has attempted to encourage young persons by teaching them those skills. Whilst this is a minor matter, it does show that the applicant is prepared to involve himself in the community to some extent.
Were the applicant’s own children, and each of them, to be separated from their father for the balance of their minor years, which is an extended period of time, I believe that would be detrimental to the children.
The children have close ties with the applicant’s parents and this provides a supportive environment for the applicant to be involved with the children in a secure environment.
Expectations of the Australian community
A primary matter is the expectation of the Australian community that non-citizens will obey the law.
Whilst the applicant has breached that expectation, the fact that he has been in Australia since he was 7 years old, gives the community some comfort to the extent that the applicant has grown up in the Australian community and is likely to now realise that as a non-citizen, it would be a privilege for him to remain in the community and take hold of his life for the better.
This would certainly be in harmony with the expectations of the Australian community as I would assess such expectation, and, there would be a greater degree of tolerance given that the applicant has been here since he was 7 years old. That is, there can be said to be a higher level of tolerance for those who have lived in the Australian community from a very young age (paragraph 6.3(5) of Direction 65). Also relevant is that the applicant was not in Australia on what might be considered to be a short stay visa.
Other considerations
In addition to the primary considerations, there are other considerations set out in paragraph 14 of Direction 65 that are relevant:
(a)International non-refoulement obligations:
There are none relevant in the present case.
(b)Strength, nature and duration of ties:
For the reasons already given, the applicant has strong ties with Australia over an extensive period of time. The nature of those ties has been outlined.
(c)Impact of Australian business interests:
This consideration has no real relevance to the circumstances of this case.
(d)Impact on victims:
There is no evidence to suggest that there is any continuing impact on victims.
(e)Extent of impediments if removed:
In many respects New Zealand would be very similar to Australia and from a cultural perspective there would be minimal difference. Despite these matters, the impact on the applicant would be dramatic in the sense of the separation of the applicant from his parents, Australian family and children.
The fact that he may be able to maintain contact through perhaps the occasional visit to the applicant in New Zealand, by telephone contact or communication by Skype, would still result in significant loss both for the applicant and his family. Further, an unfair burden might be placed on the applicant’s grandmother in New Zealand if he were removed to New Zealand.
To my view, it is better that the applicant remain in Australia. He has been punished for his crime and has served his time. I accept that the applicant has awareness that if he remained in Australia, the tolerance for any further infringement would be limited in the extreme.
The applicant has said that his drinking has ceased and that he has had some counselling. It can be assumed that the applicant would have the support of his family. Whilst there is some concern that upon release the applicant will return to his old ways, the awareness that the applicant now has, minimises this risk.
SUMMARY
In the current instance, and balancing the necessary considerations, I believe that it is appropriate to exercise the discretion against mandatory cancellation and to give the applicant the opportunity to remain in Australia.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision revoking the cancellation of the applicant’s class TY subclass 444 Special Category Visa.
I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member M J McGrowdie
...............[sgd].........................................................
Associate
Dated: 12 September 2017
Date(s) of hearing: 22 & 23 February 2017 Applicant: In person Solicitors for the Respondent: Mr K Eskerie, Sparke Helmore
0
0