ETWK v Minister for Immigration and Border Protection
[2017] AATA 228
•23 February 2017
ETWK and Minister for Immigration and Border Protection (Migration) [2017] AATA 228 (23 February 2017)
Division: GENERAL DIVISION
File Number: 2016/1813
Re: ETWK
APPLICANT
And:MINISTER FOR IMMIGRATION AND BORDER PROTECTION
RESPONDENT
DECISION
Tribunal Deputy President S A Forgie
Date 23 February 2017
Place Melbourne
The Tribunal decides:
to affirm a decision made under s 501CA(4) of the Migration Act 1958 of a delegate of the respondent dated 5 April 2016 not to revoke an earlier decision made under s 501(3A)(a)(i) of the Migration Act 1958 and dated 6 November 2015 to cancel ETWK’s TY visa.
……[sgd]……………….
Deputy President
CATCHWORDS – MIGRATION - mandatory cancellation of visa as applicant failed to pass character test due to substantial criminal record - whether discretion to revoke mandatory cancellation of visa should be exercised – decision affirmed
EVIDENCE – relevance of doli incapax principle – weight that should be assigned to evidence of uncharged acts - Tribunal able to take into consideration evidence from investigations into uncharged acts of a child as indicative of behavioural history
PRACTICE AND PROCEDURE – confidentiality - publication of name of person dealt with in youth justice system as a child prohibited by State legislation – whether Tribunal subject to prohibition – Tribunal subject to prohibition – confidentiality order made
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 35
Child Protection Act 1999 (Qld)
Children, Youth and Families Act 2005 (Vic) s 344
Criminal Code 1899 (Qld) s 29
Migration Act 1958 (Cth) ss 501(3A), 501(6)(a), 501(7)(c), 501CA(4),
Youth Justice Act 1992 (Qld) ss 2(e), 4, 11, 283(3), 284, 289, 297, 301, sch 4
LEGISLATIVE INSTRUMENT
Direction No. 65
CASES
DPP v McMaster [2008] VSCA 102; (2008) 19 VR 191
Lawrence v The Queen [2007] ACTCA 10; (2007) 1 ACTLR 158; 226 FLR 163
R v F; Ex parte Attorney-General [1998] QCA 97; 2 Qd R 157
R v Leonard [2006] NSWCCA 267; (2006) 67 NSWLR 545
R v Packer [1932] VLR 225; 38 Arg LR 212
R v Vonarx [1999] 3 VR 618
REASONS FOR DECISION
On 5 April 2016, a delegate of the Minister for Immigration and Border Protection (Minister) decided not to revoke an earlier decision dated 6 November 2015 to cancel ETWK’s[1] Class TY Subclass 444 Special Category (Temporary) visa (TY visa). The Minister had been required by s 501(3A)(a)(i) of the Migration Act 1958 (Migration Act) to cancel ETWK’s TY visa when he was satisfied that ETWK did not pass the character test because he had a substantial criminal record within the meaning of s 501(7)(c). He had a substantial criminal record because he had been sentenced to a term of imprisonment of 12 months or more. I have decided to affirm the delegate’s decision.
[1] The applicant has been assigned a pseudonym for the reasons I have given at [58]-[66] below.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Migration Act provides that:
“The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)…; and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.”
Section 501(6) sets out eleven sets of circumstances in which a person does not pass the character test. The first, set out in s 501(6)(a), is that the person has a substantial criminal record as defined by s 501(7). Section 501(7) sets out six sets of circumstances in which a person is taken to have a substantial criminal record. Only those in s 501(7)(c) is relevant in this case. It provides that a person has a substantial criminal record if “the person has been sentenced to a term of imprisonment of 12 months or more”. As ETWK was sentenced to a term of three years’ imprisonment on being convicted of an offence of recklessly causing injury, he has a substantial criminal record by virtue of that provision.
Section 501CA is relevant if the Minister has made a decision, known as the “original decision”, under s 501(3A) to cancel a visa that has previously been granted to a person.[2] Section 501CA(4) provides that:
“The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.”
[2] Migration Act; s 501CA(1)
In the circumstances of this case, s 501CA(4)(b)(i) cannot apply as ETWK cannot pass the character test set out in s 501(7) as he has been sentenced to a term of imprisonment of 12 months or more. The only relevant provision is that in s 501CA(4)(b)(ii). It has been interpreted by North ACJ in Gaspar v Minister for Immigration and Border Protection:[3]
“The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. …”[4]
[3] [2016] FCA 1166
[4] [2016] FCA 1166 at [38]
BACKGROUND
ETWK was born in New Zealand on 28 February 1994. Together with his mother and his two brothers, he came to Australia in 2001 when he was seven years old. His mother and father had separated when he was young and he has does not have any relationship with his father. The family lived at two locations in Queensland before moving to Victoria in 2003. In Geelong, ETWK’s mother met a man who was to become her partner and stepfather to her children. The family moved from Victoria to Queensland in 2006 for reasons connected with his stepfather’s employment but returned in 2012.
ETWK has a good relationship with his stepfather, whom he calls “Dad”. He worked with his stepfather doing transport and delivery work when he left school at the beginning of Year 9. ETWK then commenced an apprenticeship as a chef but left that to take a job roof tiling.
For approximately four years, ETWK was in a relationship with a young woman in Victoria. They are no longer in that relationship but I she made a statement in support of ETWK at any earlier time. I will return to that.
CONVICTIONS AS AN ADULT
In this section of my reasons, I will set out the offences of which ETWK has been convicted as an adult. Where I have the information, either in written police reports, in the sentencing remarks or in oral evidence, I will set that out. Later in these reasons, I will set out the offences in relation to which he was investigated as a child and to matters of domestic violent in which he was named as either an alleged offender or as an affected family member.
Convictions
ETWK has been convicted of the following offences on the following dates when he was an adult. I have also recorded the date on which ETWK was referred to the CREDIT/Bail Support Program (CBS):
Court
Date of Conviction
(Date of Offence)
Offence
Court Result
Beenleigh District Court, Queensland
3 September 2012
(15 October 2011)[5]
Stealing
Imprisonment 7 days suspended for one year.
Pay compensation of $59.95.[6]
Robbery
Imprisonment 6 months suspended for one year.
Pay compensation of $2,027.93.[7]
[5] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents); T11 at 147
[6] ST documents; ST29 at 154
[7] ST documents; ST29 at 154
Court
Date of Conviction
(Date of Offence)
Offence
Court Result
Melbourne County Court, Victoria
28 August 2014
(26 October 2013)[8]
Recklessly cause serious injury
Imprisonment 3 years with non-parole period of 15 months.[9]
CBS referral: 1 November 2013
Geelong Magistrates Court, Victoria
7 April 2015
(13 June)
Intentionally damage property
Fined $800 as part of an aggregate order. Pay compensation $220.
Theft from shop
Unlawful assault (2 charges)Behave in riotous manner in public place
Fined $800 as part of an aggregate order.
Fined $800 as part of an aggregate order.Fined $800 as part of an aggregate order.[10]
[8] T documents; T2 at 36
[9] Recorded in Judge Campton’s sentencing remarks as 15 months and on the covering sheet of the transcript of sentencing as 18 months.
[10] ST documents; ST9 at 28-38
Stealing and robbery of service station on 15 October 2011: convicted on 3 September 2012
The offences of stealing and robbery were only two of the four offences that ETWK committed on 15 October 2011 but they were the only two for which he was convicted. ETWK admitted the other two, which were stealing offences, and said that he had committed all four to impress his friends. After the robbery, ETWK had gone home to his mother and told her what he had done. She had telephoned the police and, when they came, ETWK voluntarily drove around and told them what he had done.
What he had done is described in the Schedule of Facts prepared in relation to the prosecution for the offence. It includes versions of events given by both ETWK and by the Console Officer at the service stations where the offences were committed. I will begin with the version given by ETWK to police rather than that given by the Console Operator. They are largely similar but ETWK’s version omits reference to the way in which the Console Operator assessed his, ETWK’s, manner during the attack:
“In relation to the robbery the [sic] stated that when he tried to leave the store with the cigarettes the attended [sic] refused to let him out of the store. The attendant told him that police were on their way. He asked the attended [sic] to let him out and offered to drop the cigarettes but the attendant refused. The defendant jumped the counter and pushed the pie and Redbull fridges off the counter. The defendant said he did not see if the fridges had smashed because he did not want to look back and show his face on the CCTV.
The defendant then walked up to the front door and kicked it once before walking back to the counter. He said to the attendant ‘open the door I will fucking smash you’. The attendant refused to open the door and instead picked up an air compressor and replied ‘come on then’. Before hitting him around the head with the compressor.
The defendant stated that he then went over to the door and kicked it twice, causing it to crack. He kicked it a third time and the door shattered. The defendant received some cuts on his legs and shins as a result of kicking the door. He accepted that these cuts may have been the source of the blood located by police on the lower parts of his pants that evening.”[11]
[11] ST documents; ST34 at 169
The Schedule of Facts also refers to ETWK’s behaviour at the Logan Police Station:
“… He initially agreed to participate in an electronic record of interview, however when he was advised that police intended to object to his bail due to the seriousness of the offences, his demeanour changed and he requested his mother as a support person for the interview.
During the interview room [sic] he made remarks about the console operator … stating that he should have taken some sort of weapon into the store with him and that he should return to the store and confront the console operator for hitting him in the head.
He was escorted from the interview room to the day room so his mother could be contacted. The defendant became aggressive and abusive to other officers in the room and had to be restrained. He was subsequently conveyed to the Beenleigh watch house.
The defendant’s parents arrived at the Beenleigh police station and told police that the defendant had recently become increasingly violent and aggressive due to alcohol and cannabis abuse.”[12]
[12] ST documents; ST34 at 169
ETWK was granted bail pending the hearing of four charges arising out of the events of 15 October 2011.[13] On 8 March 2012, he was committed for trial in the District Court in Queensland but only on one count of stealing and one count of robbery.[14] He pleaded guilty to both charges on 3 September 2012.[15]
Recklessly cause serious injury on 26 October 2013: convicted on 28 August 2014
[13] ST documents; ST36 at 172-174
[14] ST documents; ST31 and 32 at 156-159
[15] ST documents; ST29 at 154
A. The offence
ETWK was referred to Mr Tim Murphy, Clinical Psychologist, by Ms Lavecchia, Case Manager, Credit Bail Support Program at the Geelong Court. Mr Murphy prepared a report dated 30 May 2014 in which he recorded what ETWK had told him about the events preceding and occurring during the course of the offence:
“… [ETWK] reports he drank excessively at the cricket club the evening the stabbing occurred. He reports to have consumed excessive amounts of Beer and Bundaberg Rum. He reports not to often drink Bundaberg Rum because it can induce anger outbursts. He reports having a brief verbal conflict with a member of the cricket club. Both himself and another person involved was asked to leave the cricket club. He reports getting home and his girlfriend asking him to ‘keep it down’. Shortly after that he reports hearing two people walking along the street making a lot of noise. … [ETWK] states that he then yelled at them from his unit to keep it down. He reports they shouted back abuse. … [ETWK] then reports to have run out of the apartment after the gentlemen walking along the street.
… [ETWK] reports that once he caught up to them there was a verbal exchange. … [ETWK] interpreted what was said as a threat to him. He now realizes he could have misinterpreted this comment. … [ETWK] states that he then punched one of the parties. … [ETWK] reports to have forgotten that he had a knife in his punching hand, which slashed the victim.”[16]
B.Bail
[16] ST documents; ST19 at 108a
Bail further granted on 21 February 2014
ETWK was further granted bail on 21 February 2014 after he was directed by the Magistrates Court to stand trial in the County Court on 29 April 2014 for the offence of recklessly causing serious injury. He undertook to reside at a certain address, not to have contact with witnesses for the prosecution other than the informant, to return to court as required and “Not to commit any offences while … on bail.”[17]
[17] ST documents; ST23 at 124-126
C. Reports
C.1 C.R.E.D.I.T. Bail Support Program report dated 20 February 2014
ETWK commenced participating in the C.R.E.D.I.T. Bail Support Program (CBSP) on 1 November 2013. On 7 November 2013, he met his CBSP Case Manager, Ms Lavecchia. Following that meeting, a comprehensive individual treatment plan was developed. In view of the issues ETWK described to her, referred him to other organisations:
(1)in relation ongoing alcohol and illicit substance use issues that he reported, Ms Lavecchia referred ETWK to Anglicare at Werribee for its drug and alcohol counselling program.
(a)Ms Sicura, a Forensic AOD Worker with Anglicare, reported that ETWK had attended for his first scheduled treatment session with her on 19 November 2013 and for four further treatment sessions between 26 November 2013 and 20 February 2014. He had missed two on 11 December 2013 and 21 January 2014.
(b)Ms Sicura reported that ETWK had engaged well in the counselling process, which had mainly been focused on developing and implementing harm minimisation strategies, identifying and developing strategies to manage the triggers to his drug and alcohol concerns and providing support associated with ongoing relationship conflict.
(2)In relation to ongoing concerns that ETWK had expressed regarding his anger management and mood issues, Ms Lavecchia referred him to Mr Murphy, a psychologist for two sessions funded by CBSP. ETWK attended both with one on 20 November 2013 and the other on 27 November 2013. ETWK decided to participate in further counselling with Mr Murphy and a further ten sessions were arranged through a Mental Health Care Plan Referral made by his General Practitioner. He attended appointments on 8 and 15 January 2014 and 19 February, rescheduled an appointment for 11 December 2013 and failed to attend another on 21 January 2014.
(a)Mr Murphy reported that ETWK had been cooperative in the sessions but had appeared mildly depressed/anxious. Furthermore, ETWK had difficulty managing and processing situational stressors and has limited coping strategies. Therefore, Mr Murphy had concluded, ETWK would benefit a great deal from additional support with stress management.
(3)ETWK started to participate in the CBSP and attended eight meetings with his case managers from 14 November 2013 to 19 February 2014. He missed two appointments dated 27 December 2013 and 8 January 2014.
(a)ETWK told Ms Lavecchia that he had been experiencing difficult and stressful periods due particularly to ongoing relationship conflict that he was experiencing. He felt that both Ms Sicura and Mr Murphy had assisted him to deal with his issues and to think about the consequences of his actions.[18]
[18] ST documents; ST24 at 128-129
C.2 Mr Murphy’s report dated 30 May 2014
Mr Murphy reported that ETWK was concerned about his anger outbursts. He told Mr Murphy that he could became extremely angry to the point that he was unable to control himself. At times, he reported feeling so frustrated and angry that he would “blackout” and is not able to recall what occurred. ETWK reported that he had difficulty in concentrating and seems to have had learning difficulties at school. He also told Mr Murphy that he had experimented with a range of illicit drugs. Cannabis is the only drug that ETWK uses consistently and he told Mr Murphy that he smoked approximately two grammes of it each day.
Mr Murphy summarised his opinion in the following paragraphs:
“In my opinion … [ETWK] has remorse for the damage he has caused to the victim and his own family. Therapy was brief, primarily due to … [ETWK] withdrawing from the process. Within therapy he demonstrated limited insight into his anger and relatively immature coping strategies around managing his mood, dealing with relationships and life stressors.
… [ETWK] requires further treatment in anger management. Further psychological and psychiatric assessment would assist in understanding … [ETWK’s] cognitive capacity and limited capacity to concentrate.”[19]
[19] ST documents; ST19 at 108b
C.3 Neuropsychological Court Report dated 5 August 2014
The County Court ordered a neuropsychological report. It was prepared by Dr Lauren Fitzpatrick, who is a Clinical Neuropsychologist, on 5 August 2014. She had copies of Mr Murphy’s report, the indictment, the summary of prosecution, summary of statement of offence and ETWK’s criminal record. Dr Fitzpatrick reported on ETWK’s presentation and then set out her opinion:
“… [ETWK] presented for the assessment punctually, accompanied by his mother …, and his step-father …. On arrival he was noted to pace back and forth in the waiting area. While in the waiting room, he became quite verbally hostile towards his mother who had become visibly distressed and he walked outside a number of times. Eventually he was persuaded to enter the assessment room with the examiner to discuss the purpose of the assessment. He presented as extremely irritable and distracted, engaged in limited eye contact and playing with his phone.
The purpose and structure of the assessment process were explained to … [ETWK] and he initially appeared to understand the purpose of the assessment and how it may assist him in his upcoming court proceedings. However, when he was informed that the process would take approximately three hours, his irritability increased and he refused to participate further. He left the assessment room and demanded the car keys from his mother. He was noted to knock over a couple of wheelie bins outside the arbias office on his way out.
Opinion
Unfortunately I am unable to comment on … [ETWK’s] current cognitive functioning and any impact on his genetic condition and/or previous alcohol and illicit drug use. … [ETWK] certainly presented as a young man with significant anger management and impulse control difficulties. His mother briefly described attention an behavioural issues dating back to his early teen years. His mother also reported that he has previously been diagnosed with a type of ‘chorea’. Without further information, it is difficult to say what impact this condition may have had on his cognitive functioning.
…”[20]
[20] ST documents; ST17 at 103
D.Sentencing judge’s remarks
Judge Campton of the County Court of Victoria passed sentence on ETWK on 28 August 2014 after she had convicted him of the offence of Recklessly Causing Serious Injury. He had pleaded guilty to that charge. Judge Campton set out the circumstances in which she found the offence to have occurred, the nature of the injury and the impact on the victim:
“… The circumstances surrounding your offending are that on 26 October 2013 at approximately 11.30 after consuming a considerable amount of alcohol, … [Victim] and … [V’s Friend] were singing and calling out to each other as they walked along Little Malp Street in Geelong. As they walked down the street they heard someone shouting out to them from behind. That person shouting was you,
You approached them and berated them for woofing at you. You were very angry and kept repeating yourself. You swung punches at … [Victim] and you made contact twice. You threatened to stab him with a kitchen knife you had on you unless he confessed to barking or woofing at you.
When … [Victim] agreed he had done this you became friendly and you introduced yourself before you walked away. It was only as they continued walking along Little Malop Street towards Fenwick Street that … [V’s Friend] noticed blood on the neck and T-shirt of … [Victim]. It became apparent that he was bleeding heavily.
…
… [Victim] was conveyed to hospital via ambulance. Examination revealed a slash wound to the left side of his neck and a puncture wound to the middle of his upper chest area. He underwent surgery on 27 October.
When you were interviewed by the police after this incident you initially claimed that the stab wound was caused by the neck of a bottle, however, you admitted later that you had a knife. A report from Dr Christopher Edwards advised that as a result of your actions, … [Victim] suffered a superficial laceration to the left neck. The laceration was some 10 centimetres long. The knife had not penetrated deeply. The wound to the chest, however, was more serious. It penetrated deeply and required exploration, washout and surgery.
In the opinion of his report, Dr Edwards noted that if the wound had been three to five centimetres to the left, … [Victim] would have sustained a potentially fatal cardiac injury. However, he also stated that … [Victim’s] prognosis was good and that there were unlikely to be any long term effects.
…
In his victim impact statement, … [Victim] states that he is now nervous about walking around town on his own. The knife wound to his chest has left thick keloid scar and it pains him when lifting and pushing at work. He has been diagnosed by a psychiatric as having mild depression and anxiety and he is more stressed and less happy in everyday situations.”[21]
[21] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents); T2 at 36-37
Judge Campton referred also to ETWK’s suffering from a health problem that affects his right arm as well as having problems with anger outbursts. The court had ordered a report from Mr Tim Murphy. Judge Campton said of that report:
“… You informed Mr Murphy that that you can become extremely angry to the point where you are unable to control yourself. At times you report feeling so frustrated and angry that you will black out and not be able to recall what happened.
In Mr Murphy’s opinion you have remorse for the damage you caused to … [Victim] and for the distress you have caused your family. Unfortunately, however, your therapy was brief as you withdrew from the process. Mr Murphy considers you require further treatment for anger management.
There is also a report concerning your participation in the Credit Bail Support Program. This revealed that you attended a number of appointments with respect to ongoing alcohol and illicit substance use but you didn’t take full advantage of the free sessions with Mr Murphy.
As your counsel was concerned, as was your family, that your anger problems might be related to your genetic condition, the court ordered assessment by Arbias. The court is now in receipt of that report. It appears that your anger got the better of you once again on this occasion. When you came into the assessment room to discuss the purpose for the assessment you were irritable and distracted and while you initially appeared to understand the purpose of the assessment and how it would assist you in the upcoming court proceedings, when you were told it would take about 3 hours you refused to participate. You left the assessment room demanding the car keys from your mother and you were noted to knock over a couple of wheelie bins on your way out.
Consequently Dr Lauren Fitzpatrick is unable to comment on your current cognitive functioning and she is unable to comment on any impact of your condition and/or previous alcohol and illicit drug use. It was she who reported that you certainly presented as a young man with significant anger management and impulse control difficulties.
Without any further information, however, it was impossible for her to say what impact your previous condition might have on your cognitive functioning.”[22]
[22] T documents; T2 at 37-39
Her Honour noted ETWK’s plea of guilty and his remorse as well as his being a relatively young offender. His chances of rehabilitation were reasonably good, she noted, and he had sought a longer than normal parole period. Judge Campton then said:
“I have taken all the mitigating circumstances into account and I have given you a discount for your plea of guilty. However, general and specific deterrence, as you can imagine, are very important in cases involving knives. At first glance, if you think about it, you situation looks absolutely ridiculous. To stab someone for woofing or barking at you would be laughable if it was not for the very serious consequences that could have eventuated. You must do something about your anger problems, or you will face many years in gaol. As it is, the sentence I am going to impose has to reflect the serious nature of your offending. …”[23]
Intentionally damage property, theft from shop, unlawful assault and behave in riotous manner in public place between 13 June 2014 and 2 July 2014: convicted 7 April 2015
[23] T documents; T2 at 39
ETWK committed these offences while he was on bail for the offence of recklessly causing serious injury and before he was sentenced to a term of imprisonment in August 2014. The Incident Summary Report summarised the circumstances of the offence leading to ETWK’s conviction on 7 April 2015:
“The accused was with co-accused [ ] leaving the [ ] Hotel when the accused punched a window of the hotel several times shattering same. Both then attended at the 7/11 store in nearby [ ] which they entered and started hassling the store worker. They then attended at the slurpee machine and turned nozzles on drinking from same without paying. They left the nozzles on flooding the floor. The attendant told them to leave and he locked the store while he started to clean up the mess. The accused started banging on the window of the store prompting a bystander (victim [ ]) to tell him to calm down. The accused then approached him and started abusing him and making threats to kill him. The co-accused came over and also spoke to the bystander (victim [ ]) before the co-accused head butted him. The accused then put in a headlock and tried to choke him. Another male tried to assist [ ] from the headlock and the accused and co-accused scuffled with him. The accused punched at him and just missed but the co-accused punched him in the face before they were separated. The accused was interviewed at the [ ] jail on the 9/12/14 and made partial admissions to the offences. Intent to summons. …”[24]
[24] ST documents; ST25 at 137
FAMILY VIOLENCE REPORTS
A number of family violence reports were made between 2012 and 2014 violent in which ETWK was named as either an alleged offender or as an affected family member.
10 April 2012
The Case Progressive Narrative referred to events between ETWK and his brother, who is described as “AFM”:
“Respondent and AFM involved in physical altercation on front lawn called in by anonymous complainant. Police arrived neither party prepared to have other brother charged. Story from family and brother indicates respondent may have been aggressor and this has caused a fight between brothers. Unclear in exact circumstance as both parties not wishing to speak with police. Respondent removed and safety notice compiled to prevent further altercations. Both parties signed SONC refusing further details of incident. No charges pending as police unable to determine offender.”[25]
[25] ST documents; ST25 at 136
10 August 2013
An incident occurred on 10 August 2013 between ETWK and his mother. His mother is referred to as “AFM” in the Case Progressive Narrative:
“The AFM and respondent are mother and son. Both parties live at the address with two other young adult kids and the AFM’s partner. There is a current IVO between the AFM and resp with condition one as the resp has anger management issues. On Friday the 30th of August 2013, the resp and the AFM have had verbal arguement [sic] over the use of AFM’s mobile phone as the resp has broken his phone earlier in the day. Arguement [sic] started because the AFM was sick of the resp damaging his [her] stuff. Nil threats and nil violence. On this occasion the resp was the one that called the police. Nil breachs [sic] of the IVO. Resp left the address to stay with his girlfriend in Corio. Police have nil further concerns.
…”[26]
[26] ST documents; ST25 at 134
27 January 2014
The Case Narrative Report describes an incident between ETWK, who is described as “AFM” and his girlfriend:
“AFM and resp are girlfriend and boyfriend. They have been together for approx. 1 year. On 27/1/2014 police were called to their address because neighbours could hear yelling and screaming. Police attended and spoke to both parties. Resp very emotional but not forthcoming with information. AFM states that they have been arguing constantly and resp always screams and yells and wont listen to reason. AFM states he wants relationship to ne over but feels bad about breaking up with resp. Resp going to stay at father’s house for a few hours while she calms down. Nil assault. Nil damage. Civil advice given to AFM. Police have nil welfare concerns for either party.
…
… Spoke to AFM who states that he is receiving counselling from … who is a drug and alcohol counsellor in [ ] and feels that its suffice to keep seeing her for his issues and help. Advise AFM of FVU contact strategy. Advised AFM to call office if he needs any referrals made locally.
…”[27]
[27] ST documents; ST25 at 133
3 February 2014
In the following extract from a Case Progress Narrative, ETWK’s girlfriend is referred to as the “AFM”:
“AFM and resp are girlfriend/boyfriend and have been together or approximately 1 year. The have had one other FV matter in which the roles were reversed. On this occasion 03/02/14 the AFM and resp were at home. The AFM wanted to spend home time with resp however he was continuously on the phone. The AFM has retreated to her room and the resp has followed her and began arguing with for walking away. Verbal dispute has ensued, nil violence, parties arguing over friends constantly at the house and AFM not getting time with resp alone. Both parties spoken to by police, nil concessions for welfare of either party. AFM shifted out to stay at parents place in [ ].
,,,”[28]
[28] ST documents; ST25 at 132
E. 15 February 2014
The Case Progress Narrative regarding events between ETWK and his then girlfriend reads:
“the AFM and respondent are boyfriend/girlfriend and have been in a relationship for approx 14 months and they currently live together. Police were called on 15/2/14 by a housemate after the AFM and the resp were arguing.
When police attended both parties blamed each other for the argument. The AFM stated that the resp was upset because she hadn’t been able to get any ice today. The resp stated that she was angry because the AFM has been consuming ICE. The AFM states that the relationship has deteriorated over the past couple of months.
The AFM’s brother arrived and drove the AFM to his address in [ ]. The resp was driven to her father’s address in nil assault, nil damage. Nil threats. Verbal only. Nil welfare concerns for either party. …”[29]
[29] ST documents; ST25 at 131
FURTHER INCIDENTS INVOLVING ETWK AS AN ADULT AND INVESTIGATED BY POLICE
In addition to the offences of which ETWK has been convicted, I note that there have been several incidents in relation to which his behaviour has been the subject of police investigation.
Age 17: Assault occasioning bodily harm 25 January 2012
The police were called to an incident at Pimpama in Queensland and reported the matter as follows:
“… the suspect has become verbally aggressive towards the victim [ ] after asking for McDonald’s, at time a verbal argument has ensued. The victim has said ‘can’t you just wait I’m busy. Suspect has then called the victim a fucken [sic] idiot. The victim has approached the suspect who was seated at the computer and slapped him on the backside and said ‘why are you being so disrespectful towards me’. The suspect has got up off the seat and walked past the victim pushing past her. The suspect has gone back to his bedroom where he has punched two holes in the wall and kicked the fan over causing the vase to break. Witness [ ] has tried to restrain the suspect. The suspect has started to throw punches and kicks at witness [ ] The suspect has started to throw punches and kicks at witness [ ] in an attempt to break free of his grasp. After a short while the suspect has walked into the dining room area and has used a kick to create a hole in the dining room wall. The suspect has entered the garage where he has damaged both wing mirrors of the vehicle and also used punches and kicks to damage the left back panel and the boot. Both the witness and the victim continued to ask the suspect to stop. The suspect has kicked a hole in the garage wall. The suspect walked out onto the driveway and picked up a [sic] empty rum can where he has thrown it at the victim striking her in the hip area. The victim and the suspect continued the verbal exchange. The suspect has used the victim’s phone to call a friend to come and pick him up. The suspect decamped in an unknown vehicle.”[30]
ETWK’s mother was recorded as having redness to her neck, bruising to her left arm, swelling to her right elbow and a bruise on her left stomach area.[31]
[30] ST documents; ST4 at 15
[31] ST documents; ST4 at 18
The police contacted ETWK’s mother on 5 and 10 February 2012, she told them that she was now living in Victoria. She withdrew her complaint as she simply wanted to move on with her life. There had been a huge change in her son since moving to Victoria just by getting him away from his older brother who had provoked him before the incident. Before they left Pimpama, she had arranged to have the damage to the house repaired and the real estate agents were never told about it.[32]
[32] ST documents; ST4 at 17
Age 17: Drunk in a public place: 28 January 2012
Police were called to a domestic disturbance in Queensland. After recording a reading of 0.162, ETWK was arrested for being drunk in a public place. He told police that he was also under the influence of Cannabis.[33]
[33] ST documents; ST4 at 16
REPORTS TO POLICE REGARDING ETWK’S BEHAVIOUR AS A CHILD
In this section of my reasons, I will set out the various offences and incidents in relation to which ETWK has been spoken by police between 2003, when he was nine years of age, and 25 January 2012 when he was 17 years of age. On his behalf, Mr Allie submitted that principles of dolus capax meant that I am not permitted to have regard to them. For the reasons that I give below, I am of the view that I can. Consequently, I have summarised those offences and incidents in the paragraphs below.
Age 9: Burglary with breaking 24 April 2003
Arising out of events occurring on 24 April 2003, ETWK was given Behavioural Counselling for the offences of Entering Premises with Break and Unlawful Use of a Motor Vehicle at Bentley Park in Queensland. Two motorcycles had been taken from a neighbour’s unlocked garage. In the presence of his mother, ETWK made full admissions.[34]
[34] ST documents; ST1 at 2-3
Age 9: Common Assault 3 September 2003
I will set out the version of events given by ETWK in relation to events that took place on 3 September 2003 at Bentley Park and that led to his receiving Behavioural Counselling:
“… The suspect … was interviewed in the presence of his mother … [He] stated that he had asked the complainant if he could borrow his bike and the complainant said no and abused him. … stated that he then abused the complainant back and the complainant took a swing at him. … stated that he then hit the complainant because the complainant tried to hit him. … stated he then had a fight with the complainant during which both were hit by each other. … stated that his brother … then pulled him away and took him home. …”[35]
[35] ST documents; ST2 at 8
Age 15: Assault and threats to human life 19 May 2009
ETWK made full admissions to the effect that he had threatened to kill both his mother and his stepfather and that he had assaulted his mother on 19 May 2009 at an address in Queensland. The offences arose out of an argument between ETWK and his mother when he twisted her arm up behind her back. The matter was dealt with by way of a Youth Justice Conference and his mother was satisfied that this was the best way to deal with matters.[36]
[36] ST documents; ST4 at 10-12
HEALTH
Records of the Gold Coast University Hospital
The records of the Gold Coast University Hospital[37] contain various reports referring to ETWK’s health and, in particular, history of chorea. The first, reference to it relates to his admission on 17 January 2009 as a 14 year old with a two week history of choreatic movements in his right upper limb and then involving his right lower limb. An MRI and MRA of his brain led the radiologist to note that the features on the MR, while not specific, were worth considering for Moya Moya syndrome or Moya Moya type collateration from ICA[38] narrowing.
[37] Exhibit B
[38] Internal Carotid Artery
Further MRIs followed including those taken on 9 October 2010 and 4 March 2011. In each, ETWK’s condition was described under the heading of “Impression” as a known case of Moya Moya syndrome/variant. A report by Dr Geoffrey Wallace, Visiting Paediatric Neurologist at the Gold Coast Hospital, dated 15 November 2010, described the MRI scans as raising the possibility of Moya Moya variant. Given that ETWK had not had not had any neurological symptoms since his initial admission and his chorea had resolved, Dr Wallace thought that those symptoms might be coincidental findings to narrowing of his internal carotid arteries bilaterally with some collateral formation. He recommended ongoing monitoring of ETWK’s vascular abnormality. Multiple follow up calls regarding further appointments for ETWK to attend at the Gold Coast Hospital were not returned according to notes made by a Neurology Nurse on 31 May 2012.
Sydenham’s Chorea
Mr Allie tendered a document about Sydenham’s Chorea from a database called “Sick Kids – About Sick Kids”.[39]http;// it begins with the statement that “Chorea is the name given to specific types of movement disorders characterized by twisting or jerky movements of the body or limbs. …” It then deals with Sydenham’s Chorea but I have nothing in the medical material on which I can base a finding that ETWK has that condition. At its highest, I can only find that some thought was given to whether he suffered from Moya Moya variant but no firm diagnosis was reached.
[39] < type="1">On reception at the Melbourne Assessment Prison (MAP), ETWK acknowledged that he used Cannabis daily and that he used amphetamines occasionally. He had been prescribed anti-depressants and was compliant with the medication regimen.[40] After being assigned to Marngoneet, a case worker spoke with ETWK on 16 October 2014. She noted that ETWK had already completed an exploring change program and was waiting to be assessed for violence courses. He had applied for a horticultural course and was assigned a job in that field within the month. He also began a furniture making course.[41]
[40] ST documents; ST12 at 59
[41] ST documents; ST11 at 44-45
ETWK had a positive urine test on 13 December 2014. He said that his taking drugs would have been a spur of the moment thing. He felt bad that he had done it because his mother was upset as he was not permitted to have access visits. Since returning the positive urine test, ETWK told his case worker, he had taken anti-depressants as he felt that he was turning to drugs to help him from being down in the dumps.[42]
[42] ST documents; ST11 at 46
In so far as his work was concerned, ETWK was noted on 25 February 2015 to be polite to staff and to have completed his duties as directed.[43] On 28 February 2015, ETWK’s case manager noted that he had missed two furniture making classes. ETWK’s explanation of his absences was that he had legal matters to attend to and his attendance had improved in the following months.
[43] ST documents; ST11 at 48
On 18 May 2015, ETWK’s case worker noted that he had shown good initiative in his Certificate II furniture making course. He had also been commended for his good work ethic in horticulture. Overall, his behaviour had been compliant but he “… can tend to make smart comments when challenged. … [He] spends his recreation time by playing soccer at the main gym and occasionally boxing.”[44]
[44] ST documents; ST12 at 53
ETWK returned a second positive urine test on 21 May 2015 as well as an adulterated sample in the week beginning 26 June 2015.[45] He requested a second sample as he believed that the sample leading to the positive test was adulterated. Prison was failing him, ETWK told his case worker, and he felt that as he needed to do a drug and alcohol program. The case worker reminded him that he was responsible for his own actions and that he needed to focus on his own self-discipline when dealing with illicit substances.
[45] ST documents; ST11 at 54-55
On 16 June 2015, ETWK’s case worker spoke to him about his continual disregard of the ban on tobacco products and lighters when he was in the Education Centre.[46] The ban had been in place for the previous two weeks. At or about the same time, ETWK was found to have stolen food from a cottage that he was painting. He denied any involvement.[47]
[46] ST documents; ST11 at 54
[47] ST documents; ST11 at 54
On 21 July 2015, prison authorities interviewed ETWK about an incident at one of the cottages at Marngoneet in which two shivs and a strip of Buprenorphine were located in the cell in which he lived. ETWK told authorities that the shivs and Buprenorphine were not his and denied any involvement in the incident. Another prisoner had come by with a shiv and the Buprenorphine but ETWK said that he had not been aware of that at the time. Despite his denial and explanation, the Sentence Management Panel was concerned that ETWK had placed himself in that position at all. As it also had concerns about his ability to settle and to manage himself appropriately, it told ETWK that he would be reclassified to Fulham.[48]
[48] ST documents; ST13 at 89
Courses
ETWK has attended various courses since his imprisonment. On 28 May 2015, he completed the Moderate Intensity Violence Intervention Program (MIVIP). That was a program that had begun in January 2015 and comprised 84 hours spread over two sessions each week for approximately four months. It targeted those assessed as being at a moderate risk of violent reoffending on the Violence Risk Scale and was directed to:
“… a range of criminogenic needs and risk factors including emotion regulation, thoughts and beliefs, offence mapping, victim empathy, goal setting and self management. …”[49]
The aim of the program was to reduce the risk of violent reoffending by increasing participants’ self-awareness and self-management and conflict resolution strategies while improving their ability to manage their emotional responses and behavioural outcomes. ETWK completed that course on 28 May 2015.
[49] ST documents; ST13 at 83
ETWK undertook a Drug and Alcohol program commencing on 25 November 2015 and concluding on 21 December 2015. It is described once as a 24 hour program[50] and once as a 40 hour program.[51] As I mentioned above, by that time, he had returned a positive urine sample on 21 May 2015 as well as a later adulterated sample in the week prior to 26 June 2015.
[50] ST documents; ST11 at 54
[51] ST documents; ST13 at 94
ETWK was scheduled to commence an Exploring Change Program on 15 October 2014. It comprised five modules called: Making Changes; Advantages; Disadvantages and Consequences of Change; The Stages of Change; Looking Ahead; and Supporting Change.[52]
[52] ST documents; ST13 at 79
OFFENCES OR ALLEGED OFFENCES COMMITTED AS A CHILD
Doli Incapax
Mr Allie made a submission in the early stages of the proceedings to the effect that I could not have regard to offences, or alleged offences, which came to police notice when he was a child but in relation to which he was never charged. He relied on the Latin maxim “doli incapax” meaning “incapable of crime”. Common law principles were developed but they have now become subject to legislation. Under relevant legislation in Queensland, where the ETWK’s behaviour came to notice, a child under the age of 10 years is not criminally responsible for any act or omission.[53] A person under the age of 14 years is not criminally responsible for an act or omission unless it is proved that, at the time of doing, or omitting to do, an act the person had capacity to know that he or she ought not to have done the act or made the omission.[54] In the case of Victoria where I am hearing this matter, it is conclusively presumed that a child under the age of 10 years cannot commit an offence.[55]
[53] Criminal Code (Qld); s 29(1)
[54] Criminal Code (Qld); s 29(2)
[55] Children, Youth and Families Act 2005 (Vic); s 344
In earlier authorities, the rationale for the presumption is said to be a “want of discernment between good and evil” in those aged under 10 years.[56] Where the presumption is rebuttable, evidence of a child’s previous dealings with the police and, if probative of capacity, previous convictions would be relevant in rebutting it.[57]
[56] R v Packer [1932] VLR 225; 38 ALR 212 at 228; 213 per Cussen ACJ with whom Mann and Macfarlan JJ agreed
[57] R v F; Ex parte Attorney-General [1998] QCA 97;[1999] 2 Qd R 157 at [13]; 165 per Davies JA with whom McPherson JA and Shepherdson J agreed
These principles are relevant when a child has engaged in behaviour for which, but for his or her age, he or she may be charged with a criminal offence. That is the subject of criminal law. The matter with which I am concerned is not concerned with criminal law but with the review of the merits of an administrative decision. What relevance, if any, can I give, or weight can I place, on behaviour for which a child either may not or cannot be charged (uncharged acts)?
To begin answering that question, I will return to the criminal law where there are occasions in which uncharged acts may be relevant in showing that a person, who had motivation to behave in a certain way had been prepared to act on that motivation in the past.[58] Such evidence may be extremely prejudicial and not all evidence as to tendency to act is admissible in a criminal court. It must go further than mere propensity and have additional probative value before justifying its admission despite its prejudicial effect.[59]
[58] R v Leonard [2006] NSWCCA 267; (2006) 67 NSWLR 545 at [49]-[52]; 556 per Hodgson JA with whom Adams J agreed
[59] R v Vonarx [1995] VSC 216; [1995] VICSC 216 at [14]; Winneke P, Callaway JA and Southwell AJA
Uncharged acts may also be taken into account when sentencing a person convicted of another offence. It is open to that sentencing court to have regard to circumstances of uncharged acts if it considers it fair that it should do so. The court cannot do so if those uncharged acts would have warranted a conviction for a more serious offence but may do so if they are circumstances that aggravate the offence for which the person has been convicted. So, for example, if a person has been convicted of drug trafficking, other uncharged acts of drug trafficking may be taken into account by the sentencing Judge. To do otherwise would be to suggest that the offence for which sentence is being passed is an isolated occurrence when it is not.[60]
[60] See DPP v McMaster [2008] VSCA 102; (2008) 19 VR 191 at [41]; 200; Ashley, Neave JJA and Lasry AJA and Lawrence v The Queen [2007] ACTCA 10 at [6]; Higgins CJ, Connolly and Cowdroy JJ
Turning to administrative decisions, it is not the place of a decision-maker to make findings of fact regarding the culpability of a child in circumstances in which the courts are not permitted to do so in the criminal context. At the same time, an administrative decision‑maker can have regard to a person’s behaviour when it is relevant to do so. In the case of a decision made under s 501(3A) of the Migration Act as to whether or not to exercise power under s 501CA to revoke a visa cancellation, behaviour both past and present is a relevant consideration. To discount it would mean that consideration would be limited to the conviction or convictions that led to the cancellation and the events leading up to it. Depending on circumstances, that might favour or work against either an applicant or the Minister. Either way, it would not enable the Tribunal to carry out its functions to review the decision refusing to revoke the cancellation and to reach the correct or preferable decision having regard to all of the principles and factors set out in the Minister’s Direction.
Publication of information about child
Having reached that view, I have also considered whether I may reveal ETWK’s name in these proceedings. That question arises because s 301(1) of the Youth Justice Act 1992 (Qld) (YJ Act). It is found in Part 9 of that legislation and provides that:
“A person must not publish identifying information about a child.”
The prohibition continues to apply to the information after the child becomes an adult because s 283(3) provides that Part 9 does so. For the purposes of s 301, a “child” means a person who has not turned 17 years or, after a day fixed under s 6, 18 years of age.[61]
[61] YJ Act; s 4 and Schedule 4
The expression “identifying information about a child” is defined to mean:
“… information that identifies the child, or is likely to lead to the identification of the child, as a child who is being, or has been, dealt with under this Act.
Example —
Each of the following is identifying information about a child if it identifies the child, or is likely to lead to the identification of a child, as a child who is being or has been dealt with under this Act—
(a) the child’s name, address, school or place of employment;
(b) a photograph, picture, videotape or other visual representation of the child or someone else.”[62]
[62] YJ Act; s 4 and Schedule 4
What it means to have been “dealt with under this Act” is set out in s 283(2):
“The ways that a child may be dealt with under this Act include —
(a) being investigated for an offence; and
(b) being detained; and
(c) participating in a restorative justice process; and
(d) being cautioned, prosecuted or sentenced for an offence.”
Section 301(2) provides exceptions to this prohibition but only when permitted either by a court order or by an authorisation given by the chief executive being the chief executive of the Department in which the Child Protection Act 1999 (Qld) is administered.[63] The definition of the word “court” in Schedule 4 to the YJ Act is not broad enough to encompass a tribunal. In any event, the Act uses both terms and clearly distinguishes between the two.[64]
[63] YJ Act; s 4 and Schedule 4
[64] See, for example, ss 289 and 297
The word “publish” is defined in Schedule 4 to the YJ Act to mean:
“… publish to the public by television, radio, internet, newspaper, periodical, notice, circular or other form of communication.”
That definition is broad enough to include the Tribunal’s publication of its reasons for decision.
There are a couple of questions that arise from this provision and I asked the parties to make submissions as to whether I may, or may not, reveal ETWK’s name. They have done that and I have taken their submissions into account.
One question is whether ETWK has been “dealt with under this Act” being the YJ Act. I have only the evidence of ETWK and of his mother and the written reports of the police. On the basis of that material, I have concluded that he was dealt with under the YG Act. The police have investigated the offences even if no charges were laid. In view of the breadth of the definition of the expression “dealt with under this Act” set out in s 283(2), that finding, without more, means that ETWK has been dealt with under that legislation.
A second question is whether the prohibition under s 301 applies to this Tribunal. As Mr Carroll has submitted, it is open to argue that the provision is wide enough to apply to it. Two of the objects of the YJ Act are to rehabilitation children who commit offences and to reintegrate them into the community.[65] Limiting the dissemination of information relating to offences, or alleged offences, committed by a child for particular purposes and in particular circumstances is consistent with those objects. The limitation is no less relevant when the child has become an adult if reintegration is to have its best chance of success. There may be occasions on which the Commonwealth Parliament may enact legislation that is inconsistent with the approach taken by the Queensland Parliament but there is no basis on which I could find that either the Migration Act or the AAT Act purports to do so on this.
[65] YJ Act; s 2(e)
While I do not think that either the parties or I have fully explored the issues, I think that the more prudent approach is to act as if I were bound by s 301 of the YG Act. Therefore, relying on s 35 of the AAT Act, I have assigned a pseudonym to the applicant and have removed identifying aspects of these reasons for decision. Mr Allie and Mr Carroll both consent to my doing so. Mr Allie did so on the basis that the allocation of a pseudonym would minimise the likelihood of ETWK’s being found by his father were he required to return to New Zealand. The likelihood of any harm to ETWK’s mother and her family generally would be minimised.
DIRECTION No. 65
Under s 499 of the Migration Act, the Minister may give written directions to a person or body having functions or powers under that Act provided the directions are about the performance of those functions or the exercise of those powers.[66] The person or body to whom the directions are given must comply with them[67] but there is one proviso. That is found in s 499(2), which reflects the common law, to the effect that the Minister is not permitted to give directions that would be inconsistent with the Migration Act or with regulations made under it.[68] If he were to do that, it would follow that the person or body is not bound to follow the directions to the extent of the inconsistency.
[66] Migration Act; s 499(1)
[67] Migration Act; s 499(2A)
[68] Migration Act; s 499(2)
The Minister has made a direction under s 499 for the purposes of decisions made under, among others, s 501CA. It is known as “Direction No. 65” and applies to the decision made in relation to ETWK’s visa.
Paragraph 6.1 of the Direction No. 65 begins with a statement of objectives but I will refer only to the first:
“The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.”[69]
[69] Direction No. 65 at [6.1(1)]
The objectives are followed by passages described as “General Guidance” and “Principles”. The latter set the framework within which the individual considerations set out in Parts A, B and C of Direction No. 65 are set. They give those considerations their form and pattern and raison d’être. The Principles set out in paragraph 6.3 are:
“(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 vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non‑citizen’s visa should be cancelled, or their visa application refused.”
Paragraph 7(1) sets out how the discretion under s 501 is to be exercised:
“Informed by the principles in paragraph 6.3 above, a decision-maker:
a)must take into account the consideration in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.”
Parts A and B do not apply in this case for they apply, respectively, when a non-citizen’s visa has been cancelled and when his or her application for a visa has been refused. Part C does apply in ETWK’s case for it is directed to revocation requests made in relation to cancellation decisions made under s 501(3A).
In applying any of the Parts, including Part C, paragraph 8 of Direction No. 65 sets out how the considerations are to be applied by a decision-maker. Decision-makers must take into account the primary and other considerations relevant to the individual case.[70] The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):
“… Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.”
[70] Direction No. 65 at [8(1)]
In applying the considerations, whether primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources.[71] Paragraph 8(3) provides that “Both primary and other considerations may weigh in favour of, or against … cancellation of the visa …”. Generally, primary considerations should be given greater weight than other considerations and one or more primary considerations may outweigh other primary considerations.[72] I will expand upon the primary and other considerations in the course of considering them.
[71] Direction No. 65 at [8(2)]
[72] Direction No. 65 at [8(4)] and [8(5)]
CONSIDERATION
Part C begins with three considerations that are characterised as primary considerations: the protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and the expectations of the Australian community. Each of these considerations is developed in the remainder of paragraph 13.
Protection of the Australian community
The first primary consideration relating to the protection of the Australian community begins with the general statement:
“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 non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non‑citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is determined.”[73]
[73] Direction No. 65 at [13.1(1)]
That statement makes clear that the persons’ conduct, past and future, is relevant. That is stated expressly in paragraph 13.1(2) when decision-makers are told that they:
“… should also give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.”
The nature and seriousness of ETWK’s conduct
Paragraph 13.1.1 goes on to expand on the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. It sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:
“a) The principle that, without limiting the range of offences that may be considered serious, violent and/ or sexual crimes are viewed very seriously;
b)The principle that crimes committed against vulnerable members of the community (such as minors, 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;
c)The sentence imposed by the courts for a crime or crimes;
d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
e)The cumulative effect of repeat offending;
f)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
g)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);
h)…”.
ETWK does not seek to put forward a view of the events that led to his conviction in any light different from the findings of fact made by Judge Campton in passing sentence. That is consistent with the principles expressed in Minister for Immigration and Multicultural Affairs v SRT[74] that I am not permitted to make any findings of fact that are inconsistent with:
“… at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence. …”[75]
[74] [1999] FCA 1197; (1999) 91 FCR 234; 56 ALD 349
[75] [1999] FCA 1197; (1999) 91 FCR 234; 56 ALD 349 at [40]; 244; 358
On the basis of ETWK’s own evidence, which is consistent with the findings of Judge Campton, I am satisfied that he was drunk when he committed the offence of which he was convicted on 28 August 2014. I accept ETWK’s description that he was not 100% in his right frame of mind and that he was not thinking about his actions. His not thinking has led him to where he is now. On the facts as found by Judge Campton, ETWK was out on the street shouting at the Victim and his friend as they walked along singing. Mr Murphy records ETWK as being at home with his girlfriend when he heard the singing. He shouted at them to reduce the noise and then left his apartment to run down the street after them. Either way, ETWK allowed himself to become angry with the behaviour of others. On the facts as found by Judge Campton, he accused the Victim and his friend for “woofing” at him. What her Honour meant by that is understood when it is known that the song was “The Fox (What Does the Fox Say)”. Among its responses is the line “Woof woof”.[76] I accept that, for some reason, ETWK thought that the Victim and his friend were woofing at him but I also accept that they were not. They were simply singing the line as one of the many lines of a song and doing so at such a volume that the occupants of a car passing by had earlier yelled “woof woof” in response to their singing.[77]
[76] See Summary of Prosecution Opening at ST documents; ST22 at 123
[77] at ST documents; ST22 at 123
What ETWK did as a result of his misunderstanding is deeply concerning. His response to his misunderstanding only changed when, in order to placate ETWK, the Victim agreed that he had been shouting at him. By then, though, it was too late and ETWK had stabbed him with a kitchen knife. The wound to the Victim’s neck was not deep although it was some 10 centimetres in length. What was a serious wound was the wound to the Victim’s chest. The knife penetrated deeply and was only three to five centimetres away from amounting to a potentially fatal cardiac injury.
This is a very serious offence and that seriousness is reflected in the sentence passed on him by Judge Campton. Given that it was only the third offence with which ETWK had been charged and only the second occasion on which he had come before a court for sentencing, the three year term with a non-parole period of 15 months is substantial. It is substantial to reflect the grave seriousness of the offence that ETWK committed.
The offence of Recklessly Cause Injury is the most serious of the offences for which ETWK has been convicted but it represents a high point of the violence he has exhibited against persons and property. He has displayed various levels of that violence both within his family environment and outside it.
Although I understand that neither he nor his mother acknowledge that he has ever displayed any level of aggression or violence, I find that there is reference to his aggression towards her in two sources. One source comprises the police records. They show that ETWK made full admissions to the effect that he had threatened to kill both his mother and his stepfather and that he had assaulted his mother on 19 May 2009. A second incident is found in the police record of events that occurred on 25 August 2012 when he was 17 years of age. Police observed that his mother had suffered redness to her neck, bruising to her left arm, swelling to her right elbow and a bruise on her left stomach area. In that incident, ETWK had been quite verbally hostile towards his mother who was visibly distressed. He was also recorded by Dr Fitzpatrick as becoming quite verbally abusive to his mother. That arose in the context of his becoming frustrated by the length of time that the assessment process would take with her.
Outside the family, the reports of ETWK’s having exhibited violent behaviour begin with an offence of assault against another child when he was nine years of age. The offences in Queensland when he robbed the service station, confronted the Console Operator and kicked his way out of the locked door of the shop also displayed a level of aggression of concern. Even when he was on bail for the offence of Recklessly Causing Injury, ETWK behaved in a manner that led to a further two assault charges. Although the damage to property in that last offence was not great in monetary terms, it showed that, despite the serious consequences that ETWK was now facing, he continued to behave without regard for other people’s property. On 25 January 2012, he had damaged the wing mirrors, left back panel and boot of the family motor vehicle as well as the walls of the house where he was living and of the garage. The nature and extent of the damage was different in 2015 but the behaviour that led to it was not.
When regard is had to the overall pattern of ETWK’s behaviour before his incarceration, it shows a consistent pattern of aggression towards persons and property. The last incident was not as serious but that set of offences arising out of that is not indicative of the pattern of ETWK’s behaviour and conduct before that time. The pattern is one in which anger and then violence have been his responses to situations which have, at least in relation to the service station offences and the offence of Recklessly Causing Serious Injury, have been situations which he has initiated. This is a pattern of serious concern.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 13.1.2 of Direction No. 65 states:
“(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)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 the rehabilitative courses to be undertaken).”
It is deeply concerning that the day on which ETWK stabbed the Victim was not the first time that he had reacted angrily and without giving thought to the situation is deeply concerning as I have already indicated. It is not even the second time but part of a pattern that started when he was a child. That pattern reflects a pattern of aggression in his response whether his response is carried out against other persons or against inanimate objects. I have referred to these events above but will refer to them again in the context of paragraph 13.1.2.
When he was nine years of age, he was involved in what could be ignored as a spat with another boy had it been an isolated incident. It was followed, however, by an incident when he was 15 years when he had threatened to kill both his mother and his stepfather and assaulted his mother. In giving evidence, ETWK’s mother rejected any suggestion that her son had ever hit her.
When I look to the reports relating to other incidents involving his mother, I think that his mother’s rejection is understandable but not consistent with what has happened in the past. Even if I discount what occurred when he was a child, there have been incidents in which he has been involved in altercations with his mother. Police recorded that his mother had suffered redness to her neck, bruising to her left arm, swelling to her right elbow and a bruise on her left stomach area after an incident on 25 January 2012 when he was 17 years of age. In that incident, ETWK also vented is anger on inanimate objects. There is a report of an incident between them on 10 August 2013 and, on 5 August 2014 when he was waiting for his appointment with Dr Fitzpatrick, he is recorded as having become quite verbally hostile towards his mother who had become visibly distressed. These reports lead me to find that ETWK has been involved in several incidents of physical aggression towards his mother.
There has also been an incident involving physical contact between ETWK and his brother but the police did not come to any conclusion as to which brother had initiated the incident. There are incidents involving ETWK and his girlfriend but they are not recorded as involving any physical acts of aggression and nor is another incident between ETWK and his mother on 10 August 2013 when he called the police. They may simply reflect a pattern of behaviour that some families may think is their normal way of interacting and an acceptable way of living. When viewed against a wider backdrop of community expectations, though, the incidents reflect an inability to control emotions and physical responses that is inconsistent with a way of living that is respectful of the right of others to live harmoniously without disturbance from loud altercations and safe from violent responses that may put them and their property at risk.
Putting his family aside, ETWK’s aggressive behaviour once he turned 17 years has not been limited to members of his family. I have described the circumstances at the service station. His aggression was apparent in that robbery when he threatened the Console Operator with physical violence but the Console Operator was a match for him. It was also apparent in the way in which he kicked open the doors of the service station. At that time, his mother and his step father were also concerned about his becoming increasingly more violent and aggressive due to alcohol and cannabis use.
ETWK’s actions following his offences is also relevant. I find that he showed no contrition following the robbery of the service station. He told police investigating the offence that he wished that he had taken a weapon with him to confront the Console Operator and wanted to go back and confront the Console Operator who had hit him over the head.
If this had been an isolated example of this type of behaviour, it could be disregarded as an act of misplaced masochism. It is not isolated, though. Even during the interview with the police regarding that offence, ETWK is recorded as becoming abusive to officers at the police station. He also lost his composure when he was waiting for Dr Fitzpatrick on 5 August 2014. She recorded him as having become quite verbally hostile towards his mother while they were waiting for her. Dr Fitzpatrick also recorded ETWK as becoming increasingly irritable on being told that the assessment process would take three hours. He refused to participate and left knocking over wheelie bins parked outside the office as he went.
Mr Allie submitted that ETWK cannot be held responsible for his response to being told of the assessment process. He is a young man and the information should have been presented to him in a manner that was more acceptable to him. It is difficult to know how the information should have been conveyed if Mr Allie is correct. The appointment with Dr Fitzpatrick was in ETWK’s interests to complete as it was part of the material that would be taken into account in sentencing him on the charge of recklessly causing injury. He was not, I find, in a state of mind where he understood that, if he were not to modify his behaviour, he would find himself in continuing trouble with the law. Rather than trying to learn how to modify his behaviour, he committed a further four offences while he was on hail for stabbing the Victim.
ETWK’s mother said in evidence that the family had tried to obtain help for her son but she had been unsuccessful. She referred to his having suffered from chorea. Mr Allie submitted that chorea is a reason for ETWK’s behaving as he does with aggression and lack of restraint. I have looked at the medical records returned by the Gold Coast Hospital regarding his condition. Those reports lead me to conclude that chorea was reported as a symptom. Moya Moya variant was put forward by the radiologists as a hypothesis to explain his condition but it was never formally diagnosed as ETWK’s condition. Instead, his condition was being monitored until the Gold Coast Hospital no longer received a response from him or his family. They had not left a forwarding address and I have made no evidence that they made contact with another hospital or specialists
In his favour, ETWK had expressed concerns about his own anger management and mood issues. He attended all but two sessions organised with Mr Murphy. He also attended all but two appointments with his manager in the same period, which ran from November 2013 to January 2014. He talked to Mr Murphy and to his case manager but any insight that he gained in those sessions was not sufficient to stop him from becoming involved in the behaviour that led to his facing a further five charges including two for assault.
I find that ETWK has applied himself to courses such as furniture making and machine operating. He had good reports regarding his acquisition of skills that would stand him in good stead in the future. Those good reports are somewhat offset by his positive urine test and his presence when the food was stolen from the cottages and when the shivs and Buprenorphine were located in the cell in which he resided. His reason for failing the urine test was that he was down in the dumps. He denied any involvement with the theft and with the shivs and the Buprenorphine. As the prison authorities indicated, it was of concern that he put himself anywhere near the events. It is of concern because it suggests that, at this stage, he is having difficulty in moving to change the pattern of his past.
I have set out the various offences, or alleged offences, and incidents that have been the subject of reports to the police. Having regard only to those that have been reported since he attained the age of 17 years, ETWK’s behaviour has shown a trend of behaviour that is uncontrolled in its outcome whether that is directed at people or property. Certainly, he has had counselling and a case manager but, as Mr Murphy acknowledged in his report of 30 May 2014, ETWK had limited insight into his anger and how to cope with the stressors in life including those relating to relationships with others. I am not satisfied that he has developed any further insight.
Having regard to all of these matters, I find that ETWK has not addressed his behaviour so that he has come neither to an understanding of why he acts as he does nor an ability to work out the consequences of his actions before he undertakes them. His failure to do either or his failure to do either adequately has led him to commit the very serious crime when he stabbed the Victim as well as other assaults and crimes against property. In view of that, I am satisfied that ETWK is likely to repeat his conduct. He represents a risk of harm to the Australian community and to individuals and property within it that is unacceptable.
Best interests of minor children in Australia affected by the decision
Paragraph 13.2(1) requires decision-makers to make a determination about whether revocation is, or is not, in the bests interests of the child. That consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made.[78] In considering the best interests of the child, paragraph 13.2(4) provides:
[78] Direction No. 65 at [13.2(2)]
“In considering the best interests of the child, the following factors must be considered where relevant:
a)The nature and the 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 the 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.”
If he is not permitted to remain in Australia, ETWK will not be a figure in his niece’s life as she will remain in Australia with her mother and ETWK’s brother. As she is only a few months old at this stage, I do not find that there she and ETWK have formed a lasting relationship. That is not to say that he and she are not capable of forming a relationship in the years to come or that ETWK is already fond of her. What they will lose if he must leave Australia is the opportunity to form such a relationship. ETWK’s niece’s opportunity to see him would be limited to any trips that she makes in the future to New Zealand.
Expectations of the Australian community
How are those expectations determined?
Paragraph 13.3(1) states:
“The Australian community expects non-citizens to obey Australia’s 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.”
In my reasons for decision in Re Rabino and Minister for Immigration and Border Protection,[79] I considered this paragraph in some detail. I will not repeat my analysis but adopt its conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non‑citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an “unacceptable risk” that non-citizens will breach that expectation or when the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. I respectfully suggest that a consideration of what is an acceptable risk and what is not will be informed by the Principles set out in the current Direction. Paragraph 6 generally, and paragraph 6.3 in particular, must be borne in mind. That is particularly so when regard is had to the general statement in 6.2(1) that:
“… 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.”
[79] [2016] AATA 999 at [60]-[72]
Although ultimately a matter for judgment, the facts on which that judgment is made must be made on the basis of facts established by the evidence. That evidence will not be limited to what is said in the sentencing remarks. The judgment that is ultimately made by a decision-maker must be able to be explained.
Consideration of the expectations of the Australian community
The Australian community expects to be able to carry out activities of normal living without fear of attack. It might be that the Victim and his friend had been singing a little too loudly as they walked along the street but ETWK’s response was way out of proportion to any offence they might have given. The community expects to be able to buy fuel and other necessities at service stations throughout the night. ETWK’s actions in robbing the service station and in threatening the consul operator is contrary to the community’s expectations. The Australian community expects its members to respect other members and its institutions. ETWK’s mother has stood by him and, as a mother would, defends his actions. On my understanding of the police records, he has not shown her the same respect and loyalty in return.
Other considerations
The five other considerations are summarised in paragraph 14(1):
“a) International non-refoulment obligations;
b)Strength, nature and duration of ties;
c) Impact on Australian business interests;
d) Impact on victims;
e) Extent of impediments if removed.”
A non-refoulment obligation is an obligation not to require a person to return, deport or expel a person to a place where he or she will be at risk of a specific type of harm. There is no suggestion that ETWK is at risk of harm of the sort that raises Australia’s non‑refoulment obligations under the 1951 Convention on the Status of Refugees as amended by the 1967 Protocol (Refugees Convention). Therefore, I find that this consideration does not arise on the evidence in this case.
Strength, nature and duration of ties
Paragraph 14.2(1) of Direction No. 65 states:
“… Reflecting the principles at 6.3, decision-makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non‑citizen has arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non‑citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).”
ETWK came to Australia when he was seven years of age. He has spent his formative years in Australia where he has significant amounts of time in both Queensland and Victoria. He left school at the beginning of Year 9 and has worked for some short periods. His immediate family lives in Australia. His birth father lives in New Zealand as do some relatives of his mother’s. He has not, I find, had ongoing contact with his father or other family members in New Zealand. For the purposes of this case, I accept his mother’s evidence that she was the subject of severe domestic violence and abuse by her sons’ father. She does not wish to return to New Zealand as she does not wish to place herself in danger from her former partner. At the same time, she feels that she must return to be with her son even if he is not permitted to remain in Australia. That is so even if she must leave her other sons and her partner behind in Australia.
For his part, ETWK will be in a country of which he has little memory if he is not permitted to remain in Australia. His contact with his relatives is slight and he has no known base in which he will be able to anchor himself. Family events will continue without him if he is in New Zealand and his family is not. If his mother is in New Zealand, her partner will need to decide whether he should be there or in Australia. There is a risk that the family will be fractured by ETWK’s not being permitted to remain in Australia.
ETWK’s brother and his partner have said that they will support him if he is permitted to remain in Australia. His mother will too. He will be included in family events and he will have a further opportunity to live a responsible life.
Impact on Australian business interests
Paragraph 14.3(1) of Direction No. 65 states:
“Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivers an important service in Australia.”
I find that ETWK has not been promised any particular position if he were to stay in Australia. One of his friends has, however, indicated that he thought that he would be able to get ETWK a position as a plasterer if he were permitted to remain Australia. That would be a good outcome for ETWK but, whether he does or does not, will not have any effect on Australian business interests.
Impact on victims
At paragraph 14.4(1), Direction No. 65 states:
“Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.”
The attack has had a lasting effect on the Victim. Although the wound missed his heart and the wound itself healed, he has been left with a thick keloid scar. The scar tissue causes him pain when he lifts. The Victim is now nervous when he is on his own in town and suffers mild depression and anxiety. In summary, he is less happy than he was. I have no evidence of the effect on other victims such as the Console Officer at the service station.
Extent of impediments if removed from Australia/not permitted to return
Direction No. 65 also states in paragraph 14.5(1) that:
“The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
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.”
ETWK would necessarily face difficulties in finding accommodation and work if he is required to return to New Zealand. His mother states that she would be there with him. That would give him the opportunity to have a stable base but only if he chooses to accept her support. I say that because the evidence of the police reports shows that there have been occasions when he has not behaved well with her and has bruised her in the past. He would not have any contacts that would assist him to find work but the government infrastructure would be as available to him as to any other New Zealander to provide assistance to him in his search for work and accommodation.
There is no evidence that his brothers or their families would return to New Zealand. ETWK’s stepfather was not called to give evidence and so I do not know whether he would go to support his wife in her endeavours to support her son. His mother has said that she would return to him. She holds grave concerns for her safety as her former partner has threatened her with physical violence. I accept her evidence that she would face very serious physical violence if he were to find her in New Zealand.
Conclusion
Having regard to all of these matters, I find that the decision of the delegate of the Minister should be affirmed. At the heart of the Direction lies the proposition that the Australian community expects that those who come to, or are permitted to remain in, Australia will not cause or threaten harm to it or to its members. They expect them to be law-abiding.
There are occasions on which the nature of a person’s behaviour and the consequences are such that a person will be permitted to enter Australia or to remain here. I am not satisfied that this is such a case. The history of ETWK’s offending, the serious nature of the crime that he committed in stabbing the Victim, his lack of application in trying to change his ways so that the risk of his repeating his behaviour was not significantly reduced and the serious outcomes that will follow if he repeats his behaviour, lead me to conclude that the Australian community’s tolerance of his behaviour has come to an end.
His history of offending began when he was only nine years of age and had only been in Australia for two years or so. Therefore, while it can be said that most of his formative years have been spent in Australia, it can also be said that he brought the foundations of his offending behaviour with him. It is behaviour which is not explained on the evidence that I have by reason of his suffering from a medical condition. The risk of his repeating his behaviour is at an unacceptable level given the serious consequences that would follow should he repeat it.
I understand that ETWK’s mother will be devastated by my decision. She feels that my decision will require her to return to New Zealand with her son and place her within reach of her former partner and his violent behaviour. That is of gravest concern and I have struggled with the dilemma created by factors relating to her safety and those relating to the safety of the Australian community. I think that the resolution to the dilemma lies in an examination of the power that has been given to me by Parliament. I am required to make my decision using the powers under the Migration Act and the Administrative Appeals Tribunal Act 1975 (AAT Act). The Migration Act regulates those who may enter Australia and those who may remain there. That is its focus. Regard is had to the interests of the person whose visa has been refused or cancelled and interests relating to his or her family are relevant but are not determinative. When all is said and done, what is determinative of the issue is the protection of the Australian community. It is not the protection of individual members of the community who may choose to put themselves in a position of harm even when they feel that the choice is not a choice at all but an imperative imposed upon them by a decision under the Migration Act.
DECISION
For the reasons I have given, I affirm the decision of a delegate of the Minister dated 5 April 2016 not to revoke an earlier decision dated 6 November 2015 to cancel ETWK’s TY visa.
I certify that the one hundred and twenty-two preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie.Signed: ……….........[sgd].....................................................
Administrative Assistant
Dates of Hearing 16 January 2017 and 25 January 2017
Date of Decision 23 February 2017
Applicant’s representative Mr W Allie
Respondent’s solicitor Mr J Carroll
Clayton Utz
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