Faanoi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 3249
•8 September 2021
Faanoi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3249 (8 September 2021)
Division:GENERAL DIVISION
File Number: 2021/4101
Re:Vaosa Faanoi
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member R Maguire
Date:8 September 2021
Place:Brisbane
Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent, dated 18 June 2021, not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
.....................[SGD]......................
Member R Maguire
Catchwords
MIGRATION – non-revocation of mandatory cancellation – Class TY Subclass 444 Special Category (Temporary) – where the Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation – consideration of Ministerial Direction No 90 – history of violent offences – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’)
Corrective Services Regulation 2017 (Qld)
Migration Act 1958 (Cth) (‘the Act’)
Migration Regulations 1994 (Cth) (‘the Regulations’)
Cases
Ali v Minister for Home Affairs (2020) 380 ALR 393
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513, 521
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016)153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Home Affairs v Omar (2019) 272 FCR 589
Minister for Immigration and Border Protection v Makasa [2021] HCA 1
Minister for Immigration and Multicultural and Indigenous Affairs v Schwart [2003] FCAFC 229
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese and Minister for Immigration and Border Protection (2015) 256 CLR 203
Secondary Materials
Ministerial Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Ministerial Direction No. 79 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CAUnited Nation’s Convention of the Rights of the Child
REASONS FOR DECISION
Member R Maguire
8 September 2021
BACKGROUND
The Applicant seeks review of a decision, dated 18 June 2021, of a delegate of the Minister for Immigration, Citizenship, Multicultural Services and Migrant Affairs (’the Respondent’), made pursuant to section 501CA(4) of the Migration Act 1958 (Cth) (’the Act’), not to revoke the decision to cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (‘the visa’) made under section 501(3A) of the Act.
Section 501CA(4) of the Act provides that the decision maker may revoke the mandatory cancellation of a visa if:
·The person made representations within the relevant time period (28 days in accordance with regulation 2.52 of the Migration Regulations 1994 (Cth)); and
·The decision-maker determines that the Applicant passes the ’character test’; or
·As provided under section 501CA(4)(b), there is another reason why the mandatory cancellation should be revoked.
The Respondent accepted that the Applicant had made the necessary representations within the prescribed period.[1]
[1] Exhibit G1, G Documents, G2, page 15.
Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Respondent (or their delegate) must cancel a visa that has been granted to a person if, under section 501(6)(a) of the Act, the person has a substantial criminal record, as defined by section 501(7). Relevantly, section 501(7) states:
For the purposes of the character test, a person has a substantial criminal record if:
… (c) the person has been sentenced to a term of imprisonment of 12 months or more…
The Applicant is a 21-year-old male citizen of New Zealand.[2] He first arrived in Australia on 13 September 2002, at the age of two years old and has not departed since.[3]
[2] Exhibit G1, G Documents, G2, page 31.
[3] Exhibit G1, G Documents, G2, page 208.
On 26 August 2019, the Applicant was sentenced to a head sentence of two years and six months imprisonment for the offences of armed robbery whilst in company, burglary, fraud, and unlawful use of a motor vehicle.[4] These sentences were to be served concurrently.
[4] Exhibit G1, G Documents, G2, pages 31 to 32.
On 16 March 2020, whilst the Applicant was serving a term of imprisonment (that is, in actual criminal custody) the Respondent, pursuant to section 501(3A) of the Act, decided to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test because of the operation of section 501(6)(a) (substantial criminal record) on the basis of section 501(7)(a), (b), or (c) of the Act.[5]
[5] Exhibit G1, G Documents, G2, page 15.
Notice of this decision was given to the Applicant on 16 March 2020.[6] In accordance with regulation 2.52(2)(b) of the Migration Regulations 1994 (Cth) (‘the Regulations’), the Applicant was invited to make representations to the Minister about revoking the cancellation decision within 28 days after receiving notice. The Applicant requested revocation by the Respondent of the mandatory cancellation on 14 April 2020, within the period and in the manner specified.[7]
[6] Exhibit G1, G Documents, G5, page 266.
[7] Exhibit G1, G Documents, G6, pages 276 to 281.
On 18 June 2021, the Respondent decided not to revoke the visa cancellation decision made under section 501(3A) of the Act, and on 23 June 2021 the Applicant made the present application to this Tribunal for review of that decision. The Tribunal has jurisdiction to review this decision pursuant to section 500(1)(ba) of the Act.
The hearing took place over two days on 24 August and 3 September 2021 respectively. The Applicant appeared in person and was represented by Ms Victoria Lenton of Lenton Migration Law and Consultancy. Ms Kate Ervin of Clayton Utz appeared for the Respondent via videoconference. The Tribunal received oral evidence from the Applicant, who was in the migration zone onshore and from Ms Sandra Selsby, a friend of the Applicant. The complete suite of written material forming the Exhibit Register is further particularised in the Exhibit Annexure attached hereto, marked ‘Annexure A’.
By operation of section 500(6L)(c) of the Act, when an application is made to the Tribunal under section 501CA(4) and the decision relates to a person in the migration zone, if the Tribunal has not made a decision within the period of 84 days after the day on which the person was notified of the decision under review in accordance with subsection 501G(1), the Tribunal is taken at the end of that period, to have made a decision under section 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) to affirm the decision under review. At the hearing, the representatives of the parties agreed that for the purposes of this review and section 500(6L)(c), the 84th day is Friday, 10 September 2021. It is therefore open to the Tribunal to make a decision prior to midnight on that date.
ISSUES
Revocation of the mandatory cancellation of visas is governed by section 501CA(4) of the Act. Relevantly, this provides that:
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
It is not disputed that the Applicant has made the representations required by section 501CA(4)(a) of the Act.[8]
[8] Above n 1.
There are therefore two issues presently before the Tribunal:
(a)whether the Applicant passes the character test; or
(b)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the decision to cancel the Applicant’s visa should be revoked.
In first considering section 501CA(4), it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[9]
… there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…[10]
[9] [2018] FCAFC 151.
[10] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166,
(2016)153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in section 501(6) of the Act. Under section 501(6)(a), a person will not pass the character test if they have, “a substantial criminal record”. This phrase, in turn, is relevantly defined in section 501(7) which provides that a person will have a substantial criminal record if they have, “been sentenced to a term of imprisonment of 12 months or more”.
As noted above, on 26 August 2019, the Applicant was sentenced to a head sentence of two years and six months imprisonment for the offences of armed robbery whilst in company, burglary, fraud, and unlawful use of a motor vehicle.[11]
[11] Exhibit G1, G Documents, G2, page 31.
At the hearing, the Applicant’s representative, Ms Lenton, conceded that the Applicant did not pass the character test. Having regard to this concession and the evidence before the Tribunal, the Tribunal is satisfied that as the custodial term imposed was, “a term of imprisonment of 12 months or more”. As such, the Applicant does not pass the character test by virtue of his, “substantial criminal record”, as defined in section 501(7)(c) of the Act.
The Tribunal therefore finds that the Applicant does not pass the character test pursuant to section 501(6)(a) of the Act and cannot therefore rely on section 501CA(4)(b)(i)[12] of the Act to have the mandatory cancellation decision revoked.
[12] Note: This section provides that the Minister is satisfied that the person passes the character test (as defined by section 501).
The remaining question therefore is found in section 501CA(4)(b)(ii), namely whether there is another reason why the original decision should be revoked.
IS THERE ANOTHER REASON FOR THE REVOCATION OF THE CANCELLATION OF THE APPLICANT’S VISA?
Ministerial Direction No. 90
In considering whether to exercise the discretion in section 501CA(4) of the Act, the Tribunal is bound by section 499(2A) to comply with any directions made under the Act. The purpose of such directions, as stated in paragraph 5.1(4), is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. In this case, Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘the Direction’) has application.[13]
[13] On 8 March 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
Paragraph 5.2 of the Direction sets out the principles which bind this Tribunal:
(a)The principles below provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The factors (to the extent relevant in the particular case) that must be considered in making a decision under section 501 or section 501CA of the Act are identified in Part 2.
(b)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.
(c)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(d)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(e)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non-citizens 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 by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(f)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious, that even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction requires that, informed by the principles in paragraph 5.2, decision-makers must take into account the considerations in sections 8 and 9, where relevant to the decision.
Paragraph 7(1) of the Direction provides that in applying the considerations, (both primary and other) information and evidence from independent and authoritative sources should be given appropriate weight. Paragraph 7(2) provides that primary considerations should generally be given greater weight than the other considerations. Paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.
Paragraph 8 of the Direction sets out the following primary considerations in making a decision under sections 501(1), 501(2), or 501CA(4) of the Act:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The best interests of minor children in Australia; and
(d)Expectations of the Australian community.
The other considerations which must be taken into account are provided in a non-exhaustive list in paragraph 9 of the Direction. These are:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims; and
(d)Links to the Australian community, including:
(i)Strength, nature and duration of ties to Australia; and
(ii)Impact on Australian business interests.
The Tribunal notes these considerations being ‘other’ considerations, as opposed to ‘secondary’ considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[14]
… Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
[Tribunal insertions]
[14] [2018] FCA 594 at [23].
The Tribunal now turns to a more detailed consideration of the Direction.
Primary Consideration 1 – Protection of the Australian Community
In considering Primary Consideration 1, paragraph 8.1(1) of the Direction requires that decision-makers should keep in mind 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. Decision-makers are to have regard to the principle that entering or remaining in Australia is a privilege that this country 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.
Paragraph 8.1(2) of the Direction requires consideration to be given 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.
Nature and seriousness of conduct
Paragraph 8.1.1(1) of the Direction requires that in considering the nature and seriousness of the non-citizen’s offending or other conduct to date, decision-makers must have regard to the following:
(a)Without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)Violent and/or sexual crimes;
(ii)Crimes of a violent nature against women or children, regardless of the sentence imposed; and
(iii)Acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)Without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)Causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)Crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)Conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c)); and
(iv)Where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)With the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii), or (b)(i) above, the sentence imposed by the Court for a crime or crimes;
(d)The frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)The cumulative effect of repeated offending;
(f)Whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending; and
(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).
Risk to the Australian community
Paragraph 8.1.2(1) of the Direction requires that in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future becomes lower as the seriousness of the potential 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 maybe unacceptable.
Paragraph 8.1.2(2) of the Direction requires that in considering the risk that maybe posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should be non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engagement in further criminal or other serious conduct, taking into account:
(i)Information and evidence on the risk of the noncitizen reoffending;
(ii)Evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
(c)Where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Primary Consideration 2 – Family Violence Committed by the Non-Citizen
Paragraph 8.2(1) of the Direction reflects the Government’s serious concerns about conferring the privilege of entering or remaining in Australia to non-citizens who engage in family violence. The Government’s concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.
Paragraph 8.2(2) of the Direction provides that the consideration of family violence is relevant in circumstances where:
(a)The non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven, howsoever described, that involve family violence; and/or
(b)There is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, in the preparation of family violence, and the non-citizen being considered under section 501 or section 501 CA has been afforded procedural fairness.
Paragraph 8.2(3) of the Direction requires that in considering the seriousness of the family violence engaged in by the non-citizen, the following factors must be considered where relevant:
(a)The frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
(b)The cumulative effect of repeated acts of family violence;
(c)Rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
(i)The extent to which the person accepts responsibility for their family violence related conduct;
(ii)The extent to which the non-citizen understands the impact of their behaviour on the abuse and witness of that abuse (particularly children); and
(iii)Efforts to address factors which contributed to their conduct; and
(d)Whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non-citizen’s migration status should the noncitizen engage in further acts of family violence.
Primary Consideration 3 - Best Interests of Minor Children in Australia
Paragraph 8.3(1) of the Direction requires decision-makers to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of child affected by the decision.
Paragraph 8.3(2) of the Direction provides that this consideration applies only if the child is, or would-be, under 18 years old at the time of the decision.
Paragraph 8.3(3) of the Direction provides that if there are two or more children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) of the Direction provides that in considering the best interests of the child, the following factors must be considered where relevant:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the child has been, or is at risk of being, subject, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way whether physically, sexually or mentally; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
Primary Consideration 4 – Expectations of the Australian Community
Paragraph 8.4 of the Direction details the expectations of the Australian Community as follows:
(a)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach to this expectation, or where there is an unacceptable risk that they may do so the Australian community expects the Government to not allow such a non-citizen to enter or remain in Australia.
(b)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through contact, in Australia or elsewhere, of the following:
(i)Acts of family violence; or
(ii)Causing a person to enter it into, or being party to (other than being a victim of), a forced marriage;
(iii)Commission of serious crimes against women, children, or other vulnerable members of the community such as the elderly or disabled; in this context, “serious crimes” includes crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(iv)Commission of crimes against government representatives or officials due to the position they hold, or in the performance of the duties; or
(v)Involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to war crimes, crimes against humanity and slavery; or
(vi)Worker exploitation;
(c)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community; and
(d)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Other Considerations
Paragraph 9(1) of the Direction requires decision makers to take into account other considerations, including, (but not limited to):
(a)International non-refoulement obligations, in accordance with paragraph 9.1;
(b)Extent of impediments if removed, in accordance with paragraph 9.2;
(c)Impact on victims, in accordance with paragraph 9.3; and
(d)Links to the Australian community, reflecting the principles in paragraph 5.2 and paragraphs 9.4.1 to 9.4.2.
The Tribunal now turns to a consideration of the evidence, whilst having regard to the Direction.
EVIDENCE BEFORE THE TRIBUNAL
Documentary evidence
The Tribunal had the benefit of reference to:
(a)The G Documents[15] in this matter which included:
[15] Exhibit G1, G Documents, pages 1 to 303.
(i)The decision under review;[16]
[16] Exhibit G1 G Documents, G2, pages 9 to 30.
(ii)The Applicant’s criminal history;[17]
[17] Exhibit G1, G Documents, G2, pages 31 to 35.
(iii)The sentencing remarks of the Queensland District Court on 26 August 2019;[18] and
[18] Exhibit G1, G Documents, G2, pages 36 to 41.
(iv)Various submissions, reports and letters of support for the Applicant.
(b)The Respondent’s Tender Bundle[19] which contained:
[19] Exhibit R2, pages 1 to 354.
(i)Material from the Queensland Police Service; and
(ii)Material from Queensland Corrective Services.
(c)The Applicant’s Evidence Bundle[20] which contained:
(i)A Statutory Declaration from Sandra (Saga) Selsby, dated 6 August 2021;[21]
(ii)A letter of support from Erin Earle;[22]
(iii)Correspondence from the Queensland Public Guardian pertaining to the Applicant;[23]
(iv)A letter from Peter Cantwell in relation to the Applicant’s progress toward Australian citizenship;[24] and
(v)A report and newspaper article.[25]
[20] Exhibit A2, pages 1 to 156.
[21] Exhibit A2, Applicant’s Evidence Bundle, pages 1 to 2.
[22] Exhibit A2, Applicant’s Evidence Bundle, page 3.
[23] Exhibit A2, Applicant’s Evidence Bundle, pages 5 to 7.
[24] Exhibit A2, Applicant’s Evidence Bundle, pages 8 to 10.
[25] Exhibit A2, Applicant’s Evidence Bundle, pages 11 to 186.
At the commencement of the hearing, Ms Lenton accepted the accuracy of the chronology of events detailed in Part II of the Respondent’s Statement of Facts, Issues and Contentions, which is extracted and incorporated into these reasons for ease of reference as follows:[26]
[26] Exhibit R1, Respondent’s Statement of Facts, Issues and Contentions, pages 1 to 5.
Date Event Source 5 February 2000 The Applicant was born in New Zealand. G2, p 88 13 September 2002 The Applicant arrived in Australia for the first time. G4, p 265 19 March 2003 The Applicant was taken into the care of the Department of Communities, Child Safety and Disability Services due to evidence of physical harm. G2, p 97 4 August 2005 A child protection order was made in relation to the Applicant, granting long term guardianship of the Applicant to the Chief Executive of the Department of Child Safety until the Applicant turned 18. G2, p 89 9 October 2013 The Applicant appeared in the Southport Childrens Court, charged with 'Unlawful use of motor vehicles aircraft or vessels - use wilfully destroyed, damaged, removed (on 06/10/2013)'. No conviction was recorded, and the Applicant received a 6 month good behaviour bond. G2, p 35
SM1, pp 1-4
8 January 2014 The Applicant appeared in the Southport Childrens Court, charged with:
· 'Unauthorised dealing with shop goods (maximum $150) on 24/10/2013)';
· 'Contravene direction or requirement (on 04/11/3013)';
· 'Unauthorised dealing with shop goods (maximum $150) (on 02/12/2013)';
· 'Enter premises and commit indictable offence (on 30/11/2013)';
· 'Fraud - Dishonestly gain benefit/advantage (on 02/12/2013)';
· 'Failure to appear in accordance with undertaking (on 06/11/2013)'; and
· two charges of 'Failure to appear in accordance with undertaking (on 11/12/2013)'.
No conviction was recorded, and the Applicant received a 6 month good behaviour bond.
G2, p 35
SM2, pp 5-27
7 April 2014 The Applicant appeared in the Southport Childrens Court, charged with:
· 'Wilful damage by graffiti (on 06/03/2014)', for which a conviction was recorded and the Applicant received a 10 hour graffiti removal order with a period of 12 months;
· 'Contravene direction or requirement (on 19/01/2014)', for which no conviction was recorded and the Applicant was reprimanded;
· 'Assaults occasioning bodily harm whilst armed/in company (on 08/01/2014)' and 'Common assault (on 08/01/2014)', for which a conviction was recorded and the Applicant was sentenced to a period of 6 months' detention; and
· 'Commit public nuisance (on 20/01/2014)' and 'Commit public nuisance (on 30/01/2014)', for which a conviction was recorded and the Applicant was sentenced to a period of 14 days' detention.
G2, p 34
SM3, pp 28-44
1 April 2015 The Applicant appeared in the Southport Childrens Court in an application for amendment of the graffiti removal order imposed on 7 April 2014, and the order was extended for 12 months. G2, p 34 7 August 2015 The Applicant appeared in the Southport Childrens Court, charged with 'Attempted robbery - Actual violence - In company (2 chgs on 29/04/2014)'. A conviction was recorded and the Applicant was sentenced to 18 months' detention. G2, p 34
SM4, pp 45-56
8 December 2015 The Applicant appeared in the Beenleigh Childrens Court, charged with:
· 'Contravene direction or requirement (on 09/10/2015)', for which no conviction was recorded and the Applicant was reprimanded; and
· two charges of 'Assaults occasioning bodily harm whilst armed/in company (on 08/10/2015)', 'Wilful damage (on 07/10/2015)', 'Assaults occasioning bodily harm (on 07/10/2015)', and 'Wilful damage (on 12/09/2015)', for which no conviction was recorded and the Applicant received a 12 month probation period.
G2, p 34
SM5, pp 57-75
23 May 2015 The Applicant appeared in the Beenleigh Childrens Court, charged with:
· 'Assault or obstruct police officer (on 19/12/2015)';
· 'Trespass - Entering or remaining in dwelling or yard (on 05/01/2016)'; and
· 'Contravene direction or requirement (on 05/01/2016)'.
No conviction was recorded, and the Applicant was reprimanded.
G2, p 33
SM6, pp 76-79
11 October 2016 The Applicant appeared in the Beenleigh Childrens Court, charged with 'Robbery with actual violence armed/in company/ wounded/ used personal violence (on 12/01/2016)'. A conviction was recorded, and the Applicant was sentenced to a period of 18 months' detention. G2, p 33
SM7, pp 80-83
2016 - 2017
The Applicant was employed in furniture removal.
G2, p 63
16 January 2017 The Applicant appeared in the Beenleigh Childrens Court, charged with 'Possession of a knife in a public place or a school (on 19/11/2016)' and 'Possess tainted property (on 19/11/2016)'. No conviction was recorded, and the Applicant was reprimanded. G2, p 33
SM8, pp 84-88
28 April 2017 The Applicant appeared in the Beenleigh Magistrates Court, charged with 'Breach of bail condition (on 20/03/2017)'. No conviction was recorded and the Applicant was not further punished. G2, p 33
SM9, pp 89-92
28 April 2017 The Applicant appeared in the Beenleigh Childrens Court, charged with:
· 'Stealing (between 19/01/2017 and 23/02/2017)';
· 'Burglary and commit indictable offence (on 11/08/2014)'; and
· 'Unlawful use of motor vehicles aircraft or vessels - use (on 06/09/2015).
No conviction was recorded, and the Applicant was reprimanded.
G2, p 33
SM10, pp 92-104
28 August 2017 The Applicant appeared in the Beenleigh Magistrates Court, charged with:
· 'Commit public nuisance (on 17/07/2017)';
· 'Breach of bail condition (on 26/07/2017)';
· 'Breach of bail condition (on 02/08/2017)'; and
· 'Breach of bail condition (on 04/08/2017)'.
A conviction was recorded, the Applicant was fined $1,250 with 17 days in default imprisonment and a fine option order of 58 hours' community service to be completed within 12 months.
G2, p 33
SM11, pp 105-
113
19 October 2017 The Applicant was involved in an incident at Borallon Training and Correctional Centre, in which he assaulted a Queensland Corrective Services (QCS) officer, causing an injury to the officer's head. SM12, pp 114-118 6 November 2017 The Applicant appeared in the Beenleigh Magistrates Court, charged with 'Breach of fine option order imposed on
28/08/2017 (RE: Commit public nuisance, breach of bail condition x3, on court date 28/08/2017).
The order was revoked, as the Applicant had completed nil of the 58 hours.G2, p 33 30 November 2017 The Applicant appeared in the Brisbane Magistrates Court, charged with:
· 'Breach of bail condition (on 21/09/2017)';
· 'Breach of bail condition (on 22/09/2017)'; and
· 'Breach of bail condition (on 28/09/2017)'
A conviction was recorded and the Applicant was sentenced to the rising of the Court.
G2, pp 32-33
SM14, pp 125-138
13 February 2018 The Applicant appeared in the Brisbane Magistrates Court, charged with two charges of 'Stealing (on 11/02/2018)'. A conviction was recorded and the Applicant received a probation period of 9 months. G2, p 32
SM15, pp 139-144
3 November 2018 The Applicant was involved in an incident at Arthur Gorrie Correctional Centre, in which he assaulted another prisoner. SM18, pp 149-157 23 November 2018 The Applicant was involved in a fight with another prisoner at Arthur Gorrie Correctional Centre. SM19, pp 158-165 3 April 2019
QCS officers found a 'shiv' in the Applicant's cell at Arthur Gorrie Correctional Centre.
SM20
26 May 2019 The Applicant was involved in an incident at Arthur Gorrie Correctional Centre, in which he flipped a table tennis table and became physically aggressive with a QCS officer. SM22, pp 175-186 26 August 2019 The Applicant appeared in the Brisbane District Court, charged with:
· 'Stealing (on 12/04/2018)', 'Unlawful use of motor vehicles aircraft or vessels - use (on 16/04/2018)', 'Fraud - Dishonestly make off without paying (on 16/04/2018)', and 'Fraud - dishonestly gain benefit/advantage (on 16/04/2018)', for which a conviction was recorded and the Applicant was sentenced to 6 months' imprisonment;
· 'Burglary and commit indictable offence (on 16/04/2018)', for which a conviction was recorded and the Applicant was sentenced to 2 years' imprisonment; and
· 'Robbery armed/in company/wounded/used personal violence (on 16/04/2018)', for which a conviction was recorded and the Applicant was sentenced to 2 years' and 6 months' imprisonment.
G2, p 32
SM23, pp 187-212
10 September 2019 The Applicant appeared in the Brisbane Magistrates Court, charged with:
· 'Breach of probation order imposed on 13/02/2018 (RE: Stealing x2)';
· 'Commit public nuisance (on 16/01/2018)';
· 'Breach of bail condition (on 19/01/2018)';
· 'Possess utensils or pipes etc for use (on 04/03/2018)';
· 'Breach of bail condition (on 05/03/2018)';
· 'Failure to appear in accordance with undertaking (on 28/03/2018)';
· 'Breach of bail condition (on 05/04/2018)';
· 'Breach of bail condition (between 01/04/2018 and 10/04/2018)';
· 'Breach of bail condition (on 26/03/2018)'; and
· 'Stealing (on 19/03/2018)'.
A conviction was recorded, the Applicant was fined $200, and the Applicant was resentenced for the original offences.
G2, p 32
SM24, pp 213-240
11 December 2019 The Applicant appeared in the Southport Magistrates Court, charged with 'Commit public nuisance (on 17/11/2019)'. A conviction was recorded and the Applicant was fined $350. G2, p 31
SM26, pp 253-
256
10 February 2020 The Applicant was involved in an incident at Woodford Correctional Centre, in which he became abusive and used offensive language to a QCS officer. SM29, pp 266-267 16 March 2020 The Department notified the Applicant that his Class TY Subclass 444 Special Category (Temporary) visa had been cancelled under s 501(3A) of the Act (the Original Decision). G2, pp 44-51 2 April 2020 The Applicant applied for revocation of the cancellation of his Class TY Subclass 444 Special Category (Temporary) visa. G2, pp 52-66 11 May 2020 The Applicant was involved in an incident at Woodford Correctional Centre, in which he made threats against a QCS officer. SM30, pp 268-
273
15 October 2020 The Applicant was involved in an incident at Maryborough Correctional Centre, in which he assaulted another prisoner. SM31, pp 273-274 30 November 2020 The Applicant was involved in an incident at Maryborough Correctional Centre, in which he made threats of violence against a QCS officer. SM32, pp 275-276 7 March 2021 The Applicant was involved in an incident at Maryborough Correctional Centre, in which he became aggressive and damaged a rowing machine. SM36, pp 292-307 22 April 2021 QCS officers found tablets and a 'brew' that smelled strongly of alcohol in the Applicant's cell at Maryborough Correctional Centre. SM37, pp 308-309 7 May 2021 The Applicant was involved in a fight at Maryborough Correctional Centre, following which QCS officers reported that, while restrained and being escorted to his cell, the Applicant 'attempted to strike [another prisoner] in the head with a kicking motion'. SM38, p 323 18 June 2021 The Reviewable Decision was made, to not revoke the cancellation of the Applicant's Class TY Subclass 444 Special Category (Temporary) visa. G2, p 9 23 June 2021 The Applicant applied to the Tribunal for review of the
Reviewable Decision.
G1, pp 3-8
A convenient starting point in a discussion of the Applicant’s criminal offending and other conduct are the sentencing remarks from the District Court. On 26 August 2019, the Applicant was dealt with in the District Court of Queensland by Judge Porter QC, an extract of his Honour’s remarks are as follows:[27]
[27] Exhibit 1, G Documents, G2, pages 37 to 40.
HIS HONOUR: Vaosa Faanoi, you pleaded guilty before me today for one count of stealing, the maximum penalty for which is five years, one count of burglary and stealing, the maximum penalty for which is life imprisonment, one count of unlawfully using a motor vehicle, the maximum penalty for which is seven years in jail, two counts of fraud, the maximum penalty for which is five years in jail, and one count of armed robbery in company with an offensive weapon, the maximum penalty for which is life imprisonment.
The facts of the case are these. On 12 April you and somebody else went into woollies at Duran and stole some groceries without paying. That was count one. When an employee followed you and asked you to come back and pay, you ran away, and your co-offender chucked an apple at the woman. On 16 April you went into the home of Mr Colville in Woolloongabba. His friend had left her car keys and purse on the kitchen bench. You went through an open balcony door and stole her car keys and purse and her credit card. You then use the keys to steal her Mazda 3 Sedan. That evening you and an unknown defender (sic) drove Ms Shoemaker’s vehicle to a Caltex station, filled her up and drove off without paying. At around seven that night you and some co-offender used Ms Shoemaker’s credit card to buy some items at Coles at Mount cravat and left the store with those items. That’s count five.
The most serious offence happened at about 930 that night we you and some other offender entered the Thirsty Camel bottle shop at Eight – Mile Plains. It seemed to be some sort of drive-through. You were both dressed in dark clothes that you had been wearing at Coles when you committed that fraud but had your face is covered. The unknown offender walked to Mr Brett Azure, who up to then had done nothing to you, with a large knife pointed at him. You walk behind him, holding an empty bag. He backed away and held his hands in the air. The unknown offender followed him, pointing the knife towards his face, and you went around and blocked off his escape. When you began to panic, you told him to calm down. He told you to take what you want, and your companion said “Give me the money”. He opened the cash register and gave you the cash. There was some discussion about the other register. You took a bottle of Wild Turkey Bourbon. Then your co-offender asked for the cash again. He said it was in the safe. You went to where the safe was. You couldn’t get in, but there was some money on the bench. So you took that. He eventually opened a section of the safe he could open, which had small change, and your co-offender took some of that. You then started through your co-offender asking for cigarettes. When that couldn’t be dealt with, you ran off and left in the stolen vehicle.
The vehicle was found, damaged and abandoned, the following day. Police managed to identify you from use of Ms Shoemaker’s Coles identity card and arrested you on 19 April. You declined to talk to the police. You’ve been in custody since then, some 494 days, for these offences and some other offence is presently in the magistrates court in Southport.
Make these comments. These are serious offences, as I’m sure you understand. The robbery of an innocent young man just trying to make a living in a bottle shop with a knife, with somebody else, involving a man of your physical size would have been a terrifying experience for him. It’s a very serious crime, and the law has to deal with it as such. The other offences shouldn’t be just swept under the carpet. When you enter somebody else’s home, you affect their sense of security in their own home. It can provoke confrontations that are violent, it can get the person defending their dwelling into trouble. It’s a very serious offence, and that’s why it has got life imprisonment is the maximum penalty.
Similarly a motor vehicle is an important thing especially to younger person. This was, probably, an important thing that Ms Schumacher earned. You took it from her. She never got it back. That offending overall is very serious. I note that you were 18 at the time of the offence and 19 now, and given your age, despite the seriousness of the offending, especially threatening that young man with a knife, in company, a lenient sentence might have been possible.
The offending has to be understood in the context of your sad criminal history. That involves two previous offences for the same kind of offending. Judge Martin dealt with you on 7 April 2015 when you’re 14, for an offence you committed while you were 14, very young but undoubtedly a very big man even then. That involved you and a gang of people setting on two complainants in a street robbery, trying to obtain money from two men who had done you no harm at all. The violence of the attack on them involved in at least one incident of you kicking a man in the head while he was down. That kind of thing can kill somebody. It didn’t on this occasion, which as his Honour noted, was just good luck. His honour gave you 18 months detention and released you after 403 days that you had served, a long time in detention for someone so young.
Not long after that, after your release on 12 January 2016, some five months or so later after your release, you committed another robbery in company with another person with actual violence, where you and a co-offender threatened a man on a train again who had done you no harm and ultimately steal money from him. The complainant in that case tried to get his property back and his reward again was an actual assault upon him. On that case Judge Chowdhury, who sentenced you made these comments:
“I understand the tragic background you have and – which is in large part an explanation for your offending, but I can tell you I have had dealings with people who have had just as tragic backgrounds, and usually, I’ve seen them as victims who have not committed serious criminal offences and have managed to put the adversity of their upbringing behind them and to become useful citizens. So it’s only a partial excuse.”
His Honour said a little bit later, after noting your timely plea:
“I note you’ve got support from the public guardian and your youth Justice worker, and it’s clear that there are people who are looking out for you and want to do the best for you. So it’s a matter for you. You’re the one who decides how you live your life. You might walk out when you’re released from custody and decide that’s it. “I’m not going to mix with former criminal associates. I’ll try and get a job. I’ll try and do the best I can. I’m not going back to detention. I’m not going to see the inside of a courtroom.” But only you can decide that.”
His Honour went on.
“You’ve had lectures from magistrates and District Court judges. That’s all I’m going to say to you. It’s your life and what you choose to do with it.”
I echo what His Honour said to you last time. No person would lack sympathy for the difficult start you had in life. But ultimately, despite the challenges you’ve got, it’s your life and it’s up to you to choose what you going to do with it.
Subsequently you committed more stealing offences, to more stealing offences, for which she received a probation order. These offences were committed while on probation for those offences. The offences committed on that occasion, like the offences committed on this occasion and all the others, are offences that are not difficult for the police to detect. So if you’re going to commit them, the police are going to continue to catch you, is going to be more and more innocent people who aren’t responsible for the bad things that happen to you who are going to suffer and you will just spend longer and longer in jail. It’s up to you.
I see that you have a supervision report which is negative. You seem to not be willing, or perhaps you’re not able to properly engage with supervision though undoubtedly the office of the public guardian, who I know from my practice at the bar, works very hard to help people in your position, will try to assist you in this regard.
One might think with your criminal history that a sentence of imprisonment despite your young age – of five years or more – might be appropriate in a case such as this. I note in that regard the comments that President of the Court of Appeal Sofronoff made in R v Oliver [2018] QCA 348 from paragraphs 25 to 32 where his Honour indicates or says that, where one is dealing with offences of violence and the court is no longer concerned with whether sentence of imprisonment should be a last resort, the court is focused much on the risk to the community on the one hand and the interests of the victims of the offender on the other. Bearing in mind his observations, nonetheless on conscious still of your young age and in the circumstances where the Crown and the Defence make common submission to me I’m willing to accede to it.
You can, I’m sure, understand, Mr Fanooi, if another events like this comes before the court, you will be spending a very long time in custody. I note, however, that on one view of it you already spent a long time in custody, especially for such a young man, an environment which, I think, might be very stressful for you.
You’ve done 494 days in custody from 19 April 2019 to 25 August 2019. I note that, although it’s a late plea, you’ve made a plea of “guilty” and that saved everybody, including the court, time and resources – as well as the witnesses and the jury system. That is something in your favour, and I take that into account. Your 494 days is the equivalent of 16 months Mr Lynch submits, the Crown agrees, and I understand the law to be that, if it is appropriate to take into account that time, a time should be taken off the top and bottom of your sentence. I’m going to do that.
In circumstances, therefore, of those specific facts, I’m going to impose, when I would have imposed a head sentence of four years on the armed robbery, I’ll make that head sentence 2 ½ years. I will impose two years in respect of the burglary and six months in respect of each of the other offences. Then there’s the question of parole. It’s ironic, that the effect of taking into account the time you’ve served is that I can set a parole release date rather than a parole eligibility date. However that seems to be the position. Your counsel urges that I order parole release today.
I am concerned that, if you’re released straight away, you’re not going to have the support system around you to help prevent you committing another offence, seemingly, in some occasions, because somebody else puts the idea into your head. However there will be some time, it seems, before you’re actually released because your magistrates court matters in Southport have to be dealt with. In those circumstances, therefore, I will order your parole release date to be today 26th of August 2019.
[Tribunal emphasis added]
The Applicant’s offending is too voluminous to practically set out in detail. What follows is a selection of his offending.
The Applicant’s earliest recorded offending, namely unlawful use of a motor vehicle, occurred on 6 October 2013. This was at premises owned by Anglicare where he and his accomplice were residing as juveniles, both having full-time carers at that address.[28] He was then charged with a shoplifting offence which occurred less than three weeks later.[29] A further eleven days later on 4 November 2013, he offended again when he gave a false name to police and was charged with contravening a direction or requirement.[30] He committed one offence of failing to appear in accordance with an undertaking on 6 November 2013, and two of the same offences on 11 December 2013.[31] During this period, on 30 November 2013, he committed the offence of entering premises and committing an indictable offence.[32] Two days later he committed a further shoplifting offence.[33] The same day he committed a fraud offence.[34] All of the offending discussed in this paragraph occurred within the space of three months, at which time the Applicant was thirteen years of age.
[28] Exhibit R2, Respondent Tender Bundle, SM 2, pages 1 to 4.
[29] Exhibit R2, Respondent Tender Bundle, SM 2, pages 5 to 8.
[30] Exhibit R2, Respondent Tender Bundle, SM 2, pages 9 to 12.
[31] Exhibit R2, Respondent Tender Bundle, SM 2, pages 23 to 27.
[32] Exhibit R2, Respondent Tender Bundle, SM 2, pages 16 to 19.
[33] Exhibit R2, Respondent Tender Bundle, SM 2, pages 13 to 15.
[34] Exhibit R2, Respondent Tender Bundle, SM 2, pages 20 to 22.
On 8 January 2014, whilst in custody at Wacol Juvenile Detention Centre, the Applicant was placed in the back of a police transport vehicle with three other persons who were to appear in court at Southport. All four of them were handcuffed to the front. An argument broke out between the Applicant and one of the other juveniles. The Applicant called him an obscenity, and then kicked him in the face with his right foot. He then punched the victim in the face six times. This resulted in the Applicant being charged with assault occasioning bodily harm whilst in company.[35] He was still only thirteen years of age at the time.
[35] Exhibit R2, Respondent Tender Bundle, SM 3, pages 28 to 31.
Some eleven days after this assault, on 19 January 2014, the Applicant was observed to be throwing punches in a dangerous and disorderly manner not long after receiving a ‘Move on Direction’ from a police officer. He was charged with contravening a direction or requirement.[36] There was an associated charge of committing a public nuisance.[37] The Applicant committed a further offence of committing a public nuisance on 30 January 2014.[38]
[36] Exhibit R2, Respondent’s Tender Bundle, SM 3, pages 32 to 36.
[37] Ibid.
[38] Exhibit R2, Respondent’s Tender Bundle, SM 3, pages 37 to 40.
On 6 March 2014, he committed the offence of wilful damage by graffiti.[39] On 29 April 2014, he committed the offence of stealing[40] and attempted robbery whilst armed or in company,[41] as well as an assault occasioning bodily harm whilst armed in company.[42]
[39] Exhibit R2, Respondent’s Tender Bundle, SM 3, pages 41 to 44.
[40] Exhibit R2, Respondent’s Tender Bundle, SM 3, pages 45 to 48.
[41] Exhibit R2, Respondent’s Tender Bundle, SM 4, page 50.
[42] Exhibit R2, Respondent’s Tender Bundle, SM 4, pages 53 to 56.
On 11 August 2014, the Applicant committed the offence of burglary and commit indictable offence.[43]
[43] Exhibit R2, Respondent’s Tender Bundle, SM 10, pages 97 to 100.
On 6 September 2015, the Applicant committed the offence of unlawful use of a motor vehicle.[44]
[44] Exhibit R2, Respondent’s Tender Bundle, SM 10, pages 101 to 104.
On 7 October 2015, the Applicant committed wilful damage in a juvenile care centre where he was apparently a resident and an assault occasioning bodily harm on his carer at this facility. The episode involved the Applicant arming himself with a metal pole and waving it around making expletive-laden threats to kill his carers.[45] On 8 October 2015, the Applicant committed two counts of assault occasioning bodily harm whilst in company.[46] On 9 October 2015 the Applicant contravened a direction to state his correct name and address.[47]
[45] Exhibit R2, Respondent’s Tender Bundle, SM 5, pages 68 to 75.
[46] Exhibit R2, Respondent’s Tender Bundle, SM 5, pages 61 to 63.
[47] Exhibit R2, Respondent’s Tender Bundle, SM 5, pages 57 to 60.
On 5 January 2016, the Applicant committed the offence of trespass, as well as the offence of contravene direction or requirement, namely, to provide his full and correct name and address.[48]
[48] Exhibit R2, Respondent’s Tender Bundle, SM 5, pages 76 to 79.
On 12 January 2016, the Applicant committed the offence of robbery using personal violence, when he stole $70 and a phone and, in the process, punched the victim several times to the face. The victim suffered bruising under his left eye, swelling and bruising under his right eye and his face was generally sore all over.[49]
[49] Exhibit R2, Respondent’s Tender Bundle, SM 7, pages 80 to 83.
On 19 November 2016, the Applicant committed the offence of possession of a knife in a public place, as well as the offence of possessing tainted property, namely mobile phones that were suspected of being tainted property. The Applicant was in possession of a multitool type knife and three mobile phones.[50]
[50] Exhibit R2, Respondent’s Tender Bundle, SM 8, pages 84 to 88.
On 19 January 2017, the Applicant stole a bankcard. He was, “instantly aggressive with Police and told them numerous times to “F… Off”.[51] On 20 March 2017, the Applicant committed the offence of breach of bail condition.[52]
[51] Exhibit R2, Respondent’s Tender Bundle, SM 10, page 94.
[52] Exhibit R2, Respondent’s Tender Bundle, SM 9, pages 89 to 92.
On 17 July 2017, the Applicant committed the offence of commit a public nuisance, and in the process used obscene language towards police officers.[53] On 26 July 2017, the Applicant committed the offence of breach of a bail condition.[54] He committed the same offence again on 2 August 2017 and 4 August 2017, respectively.[55]
[53] Exhibit R2 Respondent’s Tender Bundle, SM 11, pages 105 to 108.
[54] Exhibit R2, Respondent’s Tender Bundle, SM 11, pages 109 to 113.
[55] Ibid.
On 21 September 2017, and again on 22, 27 and 28 September 2017, the Applicant committed offences of breach of bail condition.[56]
[56] Exhibit R2, Respondent’s Tender Bundle, SM 14, pages 125 to 130; 131 to 134; 135 to 138.
On 19 October 2017, the Applicant assaulted a prison officer causing a bleeding injury to the head of the officer.[57] An Individual Management Plan into this episode provides insight into the Applicant’s behaviour.[58]
There are several factors that are relevant to the staff that will be interacting with, and managing [the Applicant]. [The Applicant] presents with a cognitive impairment as confirmed by an extremely low IQ score, profound communication limitations, literacy/numeracy level of an eight-year-old and a reading level of a six-year-old. Consequently, [the Applicant] experiences difficulty completing the following actions: conveying his thoughts, feelings and emotions, explaining his behaviour, communicating requests, completing forms, effectively comprehending written words, generating solutions to problems, applying consequential thinking and expressing himself appropriately.
[The Applicant] has been diagnosed with multiple mental health conditions which also inform his behaviour. [He] lacks effective coping strategies to manage stressors and confrontation, he experiences difficulty regulating his emotions i.e. anger and is likely to react impulsively. [The Applicant] experienced early exposure to violence and trauma and likely perceives violence is normal and a method of resolving disputes. [The Applicant] has been the victim of extensive violence from primary caregivers, particularly females and will be hypervigilant for further violence. [The Applicant] is prone to aggression and violence, particularly when he feels threatened. Based on his experiences of trauma from caregivers, abandonment, frequent change of carers his capacity to attach to others and form relationships has been impaired. Consequently, [the Applicant] will experience difficulty forming friendships or relationships and may come across as aloof or unfriendly to others.
[The Applicant] has been assessed as being of high risk of using further violence. Factors that may contribute to violence include socialising with offending peers, absence of constructive activities and non-compliance with authority. [The Applicant] has identified custody as “home” for him and has identified that custody/detention is comfortable for him. As a result, [the Applicant] is likely to display minimal motivation to change, and he is likely to interact with antisocial prisoners and become immersed in the prison culture.
[Tribunal insertions and emphasis added]
[57] Exhibit R2, Respondent’s Tender Bundle, SM 12, pages 114 to 118.
[58] Exhibit R2, Respondent’s Tender Bundle, SM 12, page 119.
On 11 February 2018, the Applicant committed two counts of stealing, namely liquor from a bottle shop.[59] For these offences, he was placed on a Probation Order for a period of nine months following his conviction. He failed to report as required on 4 April 2018 and subsequently disengaged from supervision. A Court Report Breach of Community Based Order dated 14 June 2018 recorded:[60]
[59] Exhibit R2, SM 15, pages 139 to 144.
[60] Exhibit R2 SM 15, pages 147 to 148.
Response to Supervision
[The Applicant] initially failed to engage with Probation and Parole upon being admitted to supervision. Letters were sent to no avail however after a home visit was conducted on 12 March 2018 he reported to Brisbane South Probation and Parole for his initial contact. From initial contact he presented with a poor attitude toward supervision and his induction was not able to be completed during the first contact due to his refusal to stay long enough to allow this to occur. It is noted he then reported as directed the following week on 20 March 2018 and the balance of his induction was completed on this date. The Order conditions and requirements were explained during this contact as were the consequences of breaching these conditions.
Due to [the Applicant’s] poor engagement formal assessments were not able to be commenced. It is however noted he appears to have areas of need in relation to social supports and mental health.
Since completing his induction, [the Applicant] disengaged completely from supervision and all attempts to engage with him have proven unsuccessful.
It is noted the Applicant was taken into custody on 24 April 2018 and remains in custody to this date.
Due to his poor attitude toward supervision and his lack of engagement it is considered that he is currently not suitable for community-based supervision.
Recommendation
It is respectfully recommended that [the Applicant] be convicted of the contravention pursuant to Section 123 (1) of the “Penalties and Sentences Act 1992”, and further that he be dealt with for the original offences pursuant to Section 125 (4) (a) of the “Penalties and Sentences Act 1992”.
[Tribunal insertions, redactions and emphasis added]
On 3 November 2018, the Applicant was identified as the perpetrator involved in an assault on another prisoner, and lost privileges for four days. This was regarded as a major breach of section 5(j) of the Corrective Services Regulation 2017 (Qld) (‘Regulation (j)’) – acting in a way contrary to the security or good order of a corrective services facility.[61] The Applicant, together with another prisoner, had assaulted a prisoner causing, “a bloodied nose, cut to the mouth, bruising to the right side of head, cheekbone and nose requiring further assessment…”.[62]
[61] Exhibit R2, Respondent’s Tender Bundle, SM18, pages 149 to 153.
[62] Exhibit R2, Respondent’s Tender Bundle, SM18, page 154.
On 23 November 2018, a further major breach of Regulation (j) occurred, and resulted in the Applicant losing two days of privileges.[63]
[63] Exhibit R2, Respondent’s Tender Bundle, SM19, page 158.
On 4 March 2018, the Applicant committed the offence of possess utensils or pipes etc for use, namely a pipe used in connection with the smoking of a dangerous drug, ‘crack’.[64]
[64] Exhibit R2, Respondent’s Tender Bundle, SM24, pages 221 to 224.
On 5 March 2018, the Applicant committed the offence of breach of bail condition.[65]
[65] Exhibit R2, Respondent’s Tender Bundle, SM 24, pages 226 to 228.
On 28 March 2018, the Applicant committed the offence of failure to appear in accordance with an undertaking.[66]
[66] Exhibit R2, Respondent’s Tender Bundle, SM24, pages 229 to 232.
On 5 April 2018, the Applicant committed a further offence of breach of bail condition.[67]
[67] Exhibit R2, Respondent’s Tender Bundle, SM24, pages 233 to 236.
On 3 April 2019, the Applicant was found guilty of a major breach of section 5(d) of the Corrective Services Regulation 2017 (Qld) (‘Regulation (d)’) – possessing or concealing something not expressly or impliedly approved is something the prisoner may possess, namely a ‘shiv’. This resulted in a loss of privileges for two days.[68]
[68] Exhibit R2, Respondent’s Tender Bundle, SM20, pages 166 to 173.
On 29 April 2019, a Report of Brisbane South Community Corrections[69] recorded the Applicant’s failure to engage with Probation and Parole upon being admitted to supervision:
From initial contact he (sic) resistant (sic) engaging in the case management process is indicated by not responding to questioning and trying to have the interview terminated as quickly as possible.
Due to [the Applicant’s] poor engagement formal assessments were not able to be commenced. It is however noted he appears to have areas of need in relation to social supports and mental health.
Since completing his induction [the Applicant] disengaged completely from supervision and all attempts to engage with him had proven unsuccessful.…
In light of [the Applicant’s] failure to engage in supervision he is not considered suitable for future community-based orders.
[Tribunal redactions and insertions]
[69] Exhibit R2, Respondent’s Tender Bundle, SM21, page 174.
On 26 May 2019, a further major breach occurred, once again in breach of Regulation (j). The Applicant became physically aggressive towards prison staff when informed he was to be relocated to a new unit. The Applicant took off his shirt and stood with, “a fighting stance” towards the prison officer.[70] This resulted in two days loss of privileges.[71]
[70] Exhibit R2, Respondent’s Tender Bundle, SM22, page 182.
[71] Exhibit R2, Respondent’s Tender Bundle, SM22, page 175.
A Queensland Corrective Services Benchmark Assessment[72] recorded that the Applicant had never been employed, was receiving Centrelink benefits and had unpaid fines. He was described as, “an opportunistic offender with a propensity for violence”.[73] The assessment also recorded:[74]
[The Applicant] presents with an extensive nine-page criminal history which commenced in 2013 when he was 13 years of age. [The Applicant] does not presents (sic) with a distinctive offending profile, noting he has been convicted of a range of property, fraud, driving, failure to appear and breach of bail offences.
Of concern, [the Applicant] presents with a significant propensity for violence, noting he has been convicted of Assaults occasioning bodily harm whilst armed in company (14 years of age), Attempted Robbery actual violence in company (15 years of age), Assaults occasioning bodily harm whilst armed in company (X 3) (15 years of age), Robbery with actual violence armed/in company/wounded/used personal violence (X 2) (16 years of age), Robbery with actual violence armed/in company/wounded/used personal violence (18 years of age) and Robbery with actual violence armed/in company/wounded/used personal violence (19 years of age).
There are nil periods of desistance in [the Applicant’s] of offending history. He was previous subject to a Probation Order, however this was revoked.
[The Applicant’s] index offending is not considered to be an elevation of his nature of offending, however it appears [the Applicant] presents with a significant propensity for violence and due to the extensive quantity of violent offences it appears [the Applicant] presents with a disregard for community members and the victim of his violent behaviour.
[Tribunal redactions]
[72] Exhibit R2, Respondent’s Tender Bundle, SM25, pages 241 to 252.
[73] Ibid, page 242.
[74] Ibid, page 243.
The same assessment recorded[75] that the Applicant had suffered withdrawal symptoms when he quit or missed taking a drug and spent a lot of time getting, using, or recovering from using drugs.
[75] Ibid, page 244.
The assessment also recorded:[76]
[The Applicant] denied any issues or concerns in relation to suffering from mental health disorder such as depression or anxiety. There is nil collateral information to contrary.
[The Applicant] has a CI flag which was raised with the following information:
“CI flag raised on 24. 10. 17 following delivery of collateral information confirming that the prisoner has a cognitive impairment. [The Applicant’s] intellectual functioning has been assessed by the WISC-IV which identified he scored in the “extremely low” range for Verbal Comprehension, Perceptual Reasoning and Working Memory and within the “very low” range for Processing Speed. Consequently, [the Applicant] has a full-scale IQ in the 1st percentile, lower than 99% of same age peers. In addition, [the Applicant] has been assessed as having speech and language concerns and has been described as having profound language deficits in core, receptive, expressive and other areas of language functioning.”
Mental health is not considered to be a criminogenic or non-chromogenic need, however it is identified that due to [the Applicant’s] diagnosed Cognitive Impairment, he may struggle with comprehending case management intervention or engaging in appropriate conversations. It is recommended that this be monitored throughout the period of the Order and case management is specifically tailored to activities that are conducive for him. Further, it is recommended this is taken into consideration of his responsivity.
[Tribunal redactions]
[76] Ibid at 246.
On 17 November 2019, the Applicant committed the offence of public nuisance, which involved delivering several strikes to the head of an unknown male.[77] This offence, together with demonstrated non-engagement with parole officers, appears to have been the catalyst for an Advice to Parole Board Report,[78] dated 14 January 2020, which recommended that his court ordered parole order be suspended. The report noted that the Applicant had provided a positive urinary test to cocaine on 17 October 2019, at which time he would have been on parole. The report also recorded:[79]
Following failing to report on 19 December 2019, [the Applicant] reported on 23 December 2019 (his last contact with the Agency) following a home visit being conducted to locate him. During this contact, discussions were held with [the Applicant] in regards to his engagement with supervision and intervention, and also discussing with him expectations of him whilst on supervision, noting his youthful age and also cognitive impairment, including remaining in contact with the Agency and being contactable. [The Applicant] has failed to engage with intervention following this discussion and has since been uncontactable.
[The Applicant] has demonstrated non-engagement with the reporting requirements of his Order, noting he has disengaged during his current order and remained uncontactable for periods, requiring extensive follow-up in order to reengage him. However in these circumstances there was no information in regards to reoffending or adverse information from QPS, unlike the recent concerns identified as detailed in the issue selection.
[The Applicant] presents as a 19-year-old male with a extensive criminal history and period of incarceration in respect of his age. [The Applicant] presents with a significant propensity for violence whilst under the influence of illicit substances and despite efforts to engage him in youthful specific services to address this, [the Applicant] failed to engage in intervention and continues to engage in drug use. Further, despite continued efforts to reengage [the Applicant] in community-based supervision his whereabouts remain unknown. In respect of the above information [the Applicant’s] risk is deemed unmanageable in the community.
[Tribunal redactions and emphasis added]
[77] Exhibit R2, Respondent’s Tender Bundle, SM26, pages 253 to 256.
[78] Exhibit R2, Respondent’s Tender Bundle, SM27, pages 257 to 259.
[79] Ibid, pages 258 to 259.
On 30 January 2020, Queensland Corrective Services (following the indefinite suspension of the Court Ordered Parole Order on 14 January 2020 and the Applicant’s return to custody two days later) issued an Information Notice Security Classification,[80] showing the Applicant had a ‘High Security’ classification. The notice included consideration of the risk of the Applicant committing a further offence and the impact the commission of the further offence would be likely to have on a community. It did so in the following terms:[81]
You have been assessed as having a Risk of Reoffending Probation and Parole Version (RoR-PPV) score of nine which indicates you fall into the category of prisoners who pose a moderate risk of further general offending. You were released to Court ordered parole on 10.09.2019. Your parole order was indefinitely suspended on 14.0 1.2020 due to failing to report, failing to reside at an address approved by the Parole Board Queensland and being charged with committing further offences. You will return to custody on 16.0 1.2020.…
I am of the view that you pose a high risk of reoffending in the community…
[Tribunal emphasis added]
[80] Exhibit R2, Respondent’s Tender Bundle, SM28, pages 260 to 265.
[81] Ibid, page 264.
The notice also referred to the Applicant’s “poor response to community supervision.”[82]
[82] Ibid, page 261.
On 10 February 2020, there was an incident of offensive behaviour by the Applicant.[83]
[83] Exhibit R2, Respondent’s Tender Bundle, SM29, pages 266 to 267.
On 11 May 2020, the Applicant was involved in an incident[84] where he ripped off his shirt, became very agitated and advanced towards a prison officer with clenched fists in a fighting stance stating words to the effect of, “come on come on” whilst continuing to advance towards him.
[84] Exhibit R2, Respondent’s Tender Bundle, SM30, pages 268 to270,
A Queensland Corrective Services ‘Rehabilitation Needs Assessment’, completed on 25 May 2020,[85] recorded that the Applicant minimised his offending and displayed limited insight into the short and long-term harm caused to his victims. Further, he demonstrated limited remorse for the consequences of his offending. The assessment also recorded[86] that the Applicant had the capacity to gain employment and that the results of a Literacy or Numeracy Assessment, conducted on 31 January 2019, were both recorded as being unsatisfactory. The Applicant also reported commencing using cannabis at the age of seven in a social setting at school and that he had engaged in smoking methamphetamine at the age of thirteen. He ceased using methamphetamines at age seventeen when he began “snorting” cocaine. He stated that when he could not get it, he got angry.[87] The assessment also recorded:[88]
Of concern, is a significant propensity for violence, noting that six violent offences have been recorded since age 14. [The Applicant] contended that he is violent both when sober and under the influence of substances and was assessed to hold pro-criminal attitudes during the period surrounding his offending. Specifically, he focused on the benefits and rewards derived from his criminal behaviour and demonstrated a disregard for societal norms. [The Applicant] has a criminal history which involves property offences and the use of violence in company which demonstrates a disregard for the community and victims of his violent behaviour. Substance abuse is considered to be the driving factor in his offending behaviour and is indicative of program latitudes. He has a negative response to community supervision, as demonstrated by his continued offending while on Court Ordered Parole; which demonstrates a disregard for authority and rules.
Therefore, pro-criminal attitudes have been identified as a rehabilitation need for [the Applicant].…
Consideration was given to a case conference to be completed however following discussions with the senior psychologist with respect to his responsivity issues specifically his cognitive impairment a case conference has not been pursued.…
Further, due to his Cognitive Impairment he may struggle to comprehend interventions; and represents a responsivity issue which may impact on his ability to engage in his Progression and Rehabilitation Plan.
[Tribunal redactions and emphasis added]
[85] Exhibit R2, Respondent’s Tender Bundle, SM33, pages 277 to 285.
[86] Ibid, page 279.
[87] Ibid, page 280.
[88] Ibid, page 282; 284.
On 15 October 2020, the Applicant was named as perpetrator in an assault on another prisoner whom he punched in the arm and ribs and choked.[89]
[89] Exhibit R2, Respondent’s Tender Bundle, SM31, pages 273 to 274.
On 30 November 2020, the Applicant was involved in an incident where he used obscene language toward and physically threatened a prison officer.[90]
[90] Exhibit R2, Respondent’s Tender Bundle, SM32, pages 275 to 276.
On 7 March 2021, the Applicant committed a breach of Regulation (q), namely wilfully damaging or destroying any property that is part of the corrective services facility, or other property of the state in the facility. He aggressively kicked a rowing machine causing it to fall on its side and permanently damaging the machine. The severity of the incident caused it to be regarded as a major breach.[91]
[91] Exhibit R2, Respondent’s Tender Bundle, SM36, pages 292 to 295.
The Applicant committed a further breach on 22 April 2021, when he was found in possession of alcohol and prescription medication, both of which were prohibited articles.[92]
[92] Exhibit R2, Respondent’s Tender Bundle, SM37, pages 308 to 309.
On 7 May 2021, the Applicant again breached Regulation (j) by fighting with fellow prisoners and failing to follow directions from staff.[93]
[93] Exhibit R2, Respondent’s Tender Bundle, SM38, pages 310 to 324.
Following receipt of the Notice of Visa Cancellation on 16 March 2020,[94] the Applicant made a request for revocation of the mandatory cancellation.[95] In it, he identified himself as a New Zealand citizen who first arrived in Australia in 2004. He described himself as single and did not disclose any minor children of his own. He described himself as godfather to a child born whilst he was in custody and expressed concern that he would not be able to form a relationship with the child if he is forced to leave Australia. He said most of his offending occurred as an immature youth and that since that time he had matured and wanted to contribute to the community. He had been raised in foster care and had never really had role models from his culture. He said he’d worked in furniture removal from 2016 to 2017 and had played sports in the community. He disclosed no impediments to his return to New Zealand, but said that he had zero support there and would be on his own.
[94] Exhibit G1, G Documents, G2, pages 44 to 51.
[95] Exhibit G1, G Documents, G2, pages 52 to 67.
The Applicant provided a submission, dated 21 May 2021, from Lenton Migration Law and Consultancy,[96] which set out what were described as compassionate and compelling circumstances affecting the Applicant. It described how he came to Australia on 13 September 2002 at the age of two and has not departed since. It described how he was taken into the care of the Department of Communities, Child Safety and Disability Services (‘DCCSDS’) at age three due to evidence of physical harm and made the subject of a Child Protection Order,[97] on 4 August 2005. It referred to a pending application for a Child (Residence) (Class BT) visa, lodged on 18 May 2017, which had been the subject of a decision of the Migration and Refugee Division of this Tribunal.[98] It attached a psychometric assessment,[99] which detailed the Applicant’s disorders and intellectual disabilities. It attached a letter,[100] dated 2 December 2016, from the Office of the Public Guardian (OPG) to the DCCSDS (‘the first OPG letter’) expressing concern at the lack of progress in the applicant’s Vulnerable Child visa application. It also attached a letter,[101] dated 25 September 2017, from the OPG addressed to the Complaints Unit DCCSDS (‘the second OPG letter’) complaining that the DCCSDS had failed to progress his application for permanent residency and citizenship, as well as to facilitate maintenance of family relationships and sibling contact. It also recorded that the Applicant had experienced significant trauma and loss during his time in care, including: physical abuse; a loss of connection with family of origin and his siblings, lack of stable placements and homelessness. In essence, it was submitted that, had the DCCSDS done its job, the Applicant would have achieved citizenship long ago as he would not have been facing the prospect of deportation if he were allowed access to more services, including Commonwealth financial assistance, Disability Services assessment and other support services.
[96] Exhibit G1, G Documents,G2, pages 71 to 87.
[97] Exhibit G1, G Documents, G2, page 89.
[98] Exhibit G1, G Documents, G2, pages 90 to 96.
[99] Ibid, pages 102 to 107.
[100] Exhibit G1, G Documents, G2, pages 117 to 118.
[101] Ibid, pages 115 to 116.
The Tribunal now turns to a consideration of the relevant factors arising under Direction 90.
PRIMARY CONSIDERATIONS
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The Tribunal commences with consideration of paragraph 8.1.1(1) of the Direction.
8.1.1 Nature and seriousness of the conduct
Paragraph 8.1.1 (1) a) (i) of the Direction does not limit the range of conduct that may be considered very serious, and provides that violent and/or sexual crimes are viewed very seriously by the Australian government and the Australian community.
During the period from 9 October 2013 to 11 December 2019 the Applicant was convicted, or found guilty of a total of 59 offences, including:
(a)Five charges of assault;
(b)Five charges of stealing;
(c)Two charges of armed robbery;
(d)Two charges of burglary;
(e)Two charges of attempted robbery with actual violence in company;
(f)Five charges of committing public nuisance;
(g)Three charges of unlawful use of a motor vehicle;
(h)Three charges of wilful damage;
(i)Four charges of failure to appear; and
(j)Thirteen charges of breaching a bail condition or probation order.
His unruly and aggressive conduct has continued even when in custody, and he has been identified as the perpetrator and/or found guilty in relation to 27 incidents or breaches between 30 August 2017 and 5 July 2021.
The Applicant has committed significant violent crimes, and in the words of Judge Porter QC has a, “sad criminal history.” In the Applicant’s own words he has, “scared the shit” out of his victims. By way of example, he has kicked and tried to kick people in the head on more than one occasion, and as Judge Porter QC said, “that kind of thing can kill somebody.” The Applicant has significant and well-documented anger issues. In the words of the witness Ms Selby, “he just really goes from 0 to 100 quite quickly.” The Tribunal has taken some pains to set out examples of his violent conduct above, and notes with concern that this violence was often addressed at persons in positions of authority, relatively untargeted members of the community and fellow prisoners. As Judge Chowdhury observed, the Applicant’s tragic background is only a partial excuse. An overall consideration of the Applicant’s criminality and other conduct, including violent conduct, means the totality of this conduct must be viewed very seriously.
A consideration of paragraph 8.1.1 (1) (a) (i) weighs heavily against revocation of the decision under review.
The Tribunal considers paragraphs 8.1.1(1)(a)(ii) and (iii) are not relevant for consideration as the Applicant’s history of criminal conduct does not enliven the application of these provisions.
In considering paragraph 8.1.1(1)(b)(ii) of the Direction, the Tribunal considers that the various episodes of violent and aggressive conduct directed against law enforcement officers and prison officers acting in the performance of their duties weighs heavily against the Applicant.
Paragraph 8.1.1 (1) (c) of the Direction requires consideration of the sentence imposed by the courts for a crime or crimes. Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy. The Applicant has, on no less than three occasions, been sentenced to periods of imprisonment of more than twelve months. These are substantial sentences, and constitute a very bad record for anyone, but particularly for someone so young. The seriousness of the Applicant’s sentences is reflected in the words of Judge Porter QC when he said:[129]
You can, I’m sure understand, Mr Fanooi, if another offence like this comes before the court, you will be looking at spending a very long time in custody. I note, however, that on one view of it, you have already spent a long time in custody, especially for such a young man, an environment which, I think might be very stressful for you.
[129] Exhibit G1, G Documents, G2, page 39, lines 41 to 45.
A consideration of paragraph 8.1.1 (1) (c) weighs heavily against the Applicant.
The Tribunal is required by paragraph 8.1.1 (1) (d) to have regard for the frequency of the Applicant’s offending, and whether there is any trend of increasing seriousness.
The applicant had one sentencing appearance in 2013, two in 2014, three in 2015, (at one of which he received a sentence of 18 months detention), two in 2016 (at which he received a sentence of 18 months detention), five in 2017, one in 2018 (during which year he spent over eight months in custody) and three in 2019. The offences for which the Applicant was sentenced in 2019 are so numerous that they cover nearly one full page of the Check Results Report,[130] and included the heaviest custodial sentences imposed upon him. The Applicant’s offending has been very frequent, and its increasing seriousness is reflected in the punitive sentences imposed and the judicial warning above.
[130] Exhibit G1, G Documents, G2, pages 31 to 32.
A consideration of paragraph 8.1.1 (1) (d) weighs heavily against the Applicant.
The Tribunal is required by paragraph 8.1.1 (1) (e) to have regard for the cumulative effect of the Applicant’s repeated offending. Much of the Applicant’s offending, viewed in isolation, might be characterised as relatively minor. However, the sheer volume of 59 offences committed over such a short period of time cannot be overlooked, or minimised. The remarks of both Judge Porter QC, and his quoted remarks of Judge Chowdhury express great sympathy for the Applicant’s tragic background, and perhaps a tone of despair and lament that the Applicant has not responded to the, “lectures from magistrates and District Court judges.”[131]
[131] Exhibit G1, G Documents, G2. page 39, line 7.
The Applicant has committed multiple charges of assault, stealing, armed robbery, burglary, attempted robbery with violence in company, unlawful use of a motor vehicle and wilful damage. On 17 occasions he had either failed to appear as required, or breached a bail condition or probation order. He has caused great fear, as well as physical and financial injury to his victims. He has a significant propensity for violence and a disregard for community members. His conduct has tied up considerable resources in terms of law enforcement, courts and corrective services at no doubt, great cost to the taxpayer. It is clear from the words of Judge Porter QC that he will be facing further terms of length imprisonment should he reoffend.
A consideration of paragraph 8.1.1 (1) (e) weighs heavily against the Applicant.
As can be seen from the foregoing, in assessing the nature and seriousness of the Applicant’s conduct to date, the relevant considerations under paragraph 8.1.1 (1) of the Direction, in their totality, weigh heavily against revocation of the decision under review.
The Tribunal now turns to the considerations listed in paragraph 8.1.2 of the Direction.
8.1.2 The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
In considering Paragraph 8.1.2 of the direction, the Tribunal is mindful of the points expressed in paragraph 8.1.2 (1) that the tolerance for any future harm becomes lower as the seriousness of the potential harm increases, and that some conduct and the harm that would be caused, if it were repeated, is so serious that any risk that it may be repeated is unacceptable.
8.1.2 (2) Assessing the risk to the Australian community
8.1.2 (a) The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct.
A repetition of the Applicant’s past criminal and other serious conduct would cause significant harm to the Australian community. The Tribunal considers the nature of this harm to individuals or the Australian community could include serious physical, psychological and financial harm, from which they ought to be protected. The potential victims would include unfortunate, untargeted members of the community, law enforcement officers and corrective services offices, as well as fellow inmates within prison. Individuals might be subjected to kicks to the head, or other serious physical violence which could easily result in death, or significant disability.
Having regard to the Direction’s mandate for decision-makers to have regard to the matters mentioned in paragraph 146 of these reasons, the Government’s view that the Australian community’s tolerance of any risk of future harm becomes lower as the seriousness of the potential risk increases, and that 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. The Tribunal finds that this is such an instance. The potential harm caused if the Applicant’s violent conduct were to be repeated would be so serious that any risk it may be repeated is unacceptable. The Tribunal determines that there is a substantial need to protect the Australian community from repetition of the serious harm this Applicant has previously caused.
8.1.2 (2) (b) The likelihood of the non-citizen engaging in further criminal or other serious conduct
As can be seen from the foregoing, the nature of the harm which could flow to the community, should the Applicant engage in further criminal or other serious conduct, has the potential to be very serious. Innocent persons could be subject to violent assaults, threatened with weapons or death, or suffer serious physical and/or psychological harm. Their property could be taken, or damaged, or both. A person kicked in the head might suffer serious injury, or even death.
In assessing the likelihood of the Applicant engaging in such conduct in the future, the Tribunal has not had the benefit of any specific recent psychiatric evidence regarding his risk of reoffending. The Tribunal has however had the benefit of the Queensland Corrective Services Notice, dated 20 January 2020 referred to above, which assessed him as being a high risk of re-offending in the community.
It was put to the Applicant that lots of the crimes he had committed had involved violence, and he was asked why he used violence. He replied, “I don’t know. I guess it’s all I know.”[132]
[132] Transcript (24 August 2021), page 19.
The Tribunal notes with grave concern the Applicant’s repeated episodes of non-engagement with Corrective Services officers and the lack of evidence of any effective rehabilitation. In the same vein, the Tribunal notes the Queensland Corrective Services Rehabilitation Needs Assessment, completed on 25 May 2020,[133] which recorded:[134]
He has a negative response to community supervision, as demonstrated by his continued offending while on Court Ordered Parole; which demonstrates a disregard for authority and rules.
Therefore, pro-criminal attitudes have been identified as a rehabilitation need for [the Applicant]…
Consideration was given to a case conference to be completed however following discussions with the senior psychologist with respect to his responsivity issues specifically his cognitive impairment a case conference has not been pursued.…
Further, due to his Cognitive Impairment he may struggle to comprehend interventions; and represents a responsivity issue which may impact on his ability to engage in his Progression and Rehabilitation Plan.[135]
[Tribunal redactions]
[133] Exhibit R2, Respondent’s Tender Bundle, SM33, pages 277 to 285.
[134] Ibid, page 282.
[135] Ibid, page 284.
There is no evidence that the Applicant has undertaken any useful, or meaningful rehabilitation to address his wide-ranging criminal conduct. The Tribunal is very concerned that the Applicant’s cognitive impairment and other challenges render him as an unlikely candidate for successful rehabilitation. His past record of non-engagement indicates he is probably unlikely to participate, even if offered.
Having regard to the totality of the evidence, the Tribunal respectfully concurs with, and adopts the assessment of the Queensland Corrective Services Notice of 20 January 2020 referred to above – the Applicant represents a high risk of committing further offences. For the same reasons, the Tribunal considers there is also a high risk that he will engage in other serious conduct in the future.
Consideration of paragraph 8.1.2 of the Direction must weigh against heavily revocation of the decision under review.
CONCLUSION: PRIMARY CONSIDERATION 1
The Tribunal has had regard to the provisions of paragraphs 8.1.1 and 8.1.2 of the Direction and has also had regard to the principles set out at paragraph 5.2 of the Direction. The Tribunal finds that the nature of the Applicant’s offending conduct is very serious, and that there is a real likelihood that he will engage in further criminal or other very serious conduct if returned to the Australian community.
Having considered the entirety of the evidence and each of the relevant factors contained in the Direction, the Tribunal finds that Primary Consideration 1 weighs heavily in favour of non-revocation.
The Tribunal now turns to the considerations listed in paragraph 8.2 of the Direction.
PRIMARY CONSIDERATION 2 – WHETHER THE APPLICANT ENGAGED IN FAMILY VIOLENCE
There is no evidence before the Tribunal that the Applicant has committed acts of family violence so as to warrant consideration of paragraph 8.2 of the Direction.
For completeness, the Tribunal notes that these were the positions submitted by both the Applicant[136] and Respondent.[137]
[136] Exhibit, A1, Applicant Statement of Facts, Issues and Contentions, page 15, paragraph 51.
[137] Exhibit R1, Respondent Statement of Facts, Issues and Contentions, page 13, paragraph 42.
CONCLUSION: PRIMARY CONSIDERATION 2
This Primary Consideration is afforded neutral weight.
The Tribunal now turns to the considerations listed in paragraph 8.3 of the Direction.
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
In accordance with Article 3 of United Nation’s Convention of the Rights of the Child, a decision-maker should treat the best interests of any child under 18 as a primary consideration. This is in line with paragraph 8.3 of the Direction.
The Tribunal accepts the positions advocated by the Applicant and observes that there is no evidence before the Tribunal that any child will be impacted by this decision.[138]
[138] Exhibit, A1, Applicant Statement of Facts, Issues and Contentions, page 15, paragraph 52.
This Tribunal affords this Primary Consideration neutral weight.
CONCLUSION: PRIMARY CONSIDERATION 3
The Tribunal gives neutral weight to this consideration.
The Tribunal now turns to the considerations listed in paragraph 8.4 of the Direction.
PRIMARY CONSIDERATION 4: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Direction makes clear that it is not the function of the Tribunal to independently assess community expectations in this case, but to proceed on the basis of the Government’s views, as articulated in the Direction.
The Tribunal gives weight to the very clear unequivocal language of the simple proposition found in paragraph 8.4 (1) of the Direction. It is in these words: “The Australian community expects non-citizens to obey Australian laws while in Australia.” The language could not be clearer. Neither could the Applicant’s failure to meet this expectation.
Not only has this Applicant breached his obligation to obey Australian law, there is an unacceptable, real risk that he will do so again if given the opportunity. The Tribunal believes the Australian community would expect that the Applicant should not hold a visa.
CONCLUSION: PRIMARY CONSIDERATION 4
The Tribunal finds that Primary Consideration 4 weighs heavily in favour of non-revocation.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction.
9.1 International non-refoulement obligations
The Applicant has not claimed to fear harm if returned to New Zealand. This consideration is not relevant to determination of this application.
9.2 Extent of impediments if removed
In considering the extent of impediments the Applicant may face in New Zealand in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), the Tribunal has taken into account that the Applicant is a 21 year old able-bodied male who suffers significant medical conditions including post-traumatic stress disorder (PTSD), attention deficit and hyperactivity disorder (ADHD), reactive attachment disorder and an intellectual disability, with overall cognitive ability in the extremely low range. He has lived in Australia since he arrived in September 2002 at the age of two years and has not departed Australia during that time. He and his half-brother (from whom he was subsequently separated) were taken from their mother into the care of the DCCSDS due to evidence of physical harm in 2003, at which time he was three years old. The Chief Executive of Child Safety was appointed by the court as his guardian on 4 August 2005 and continued this guardianship until the Applicant’s 18th birthday. The Applicant’s communication and language skills fall within the profoundly impaired range. He knows of no living relatives in New Zealand and has no memory of his life there. On arrival, he will have no support network to call upon.
In Queensland, the Applicant can access supports through the Queensland Department of Child Safety, Youth and Women and he has stated a willingness to access these. The Tribunal is unconvinced that he will do so, having regard for his long-term and persistent failure to engage with authorities or non-profit support services offered to him. It is also well acknowledged that New Zealand has comparable standards of healthcare, social welfare and housing support to those in Australia.[139]
[139] See, for example, Ross and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1773, [225].
The Tribunal further acknowledges that the Applicant’s various conditions mean that he may face some initial hardship upon return to New Zealand. He would however, like all other New Zealand citizens, be able to access the social, medical and economic support services which are available.
The Applicant does not appear to have any ongoing physical health conditions, and there is no reason to believe that he will experience any language or cultural barriers.
Overall, the Tribunal finds that Consideration 9.2, the impediments facing the Applicant, favour revocation of the original decision.
9.3 Impact on victims
There is no specific evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any of his victims, and the Tribunal therefore makes no finding and gives this consideration neutral weight.
9.4 Links to the Australian community
In considering paragraph 9.4, the Direction requires that decision-makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
(i)the strength, nature, and duration of ties to Australia; and
(ii)the impact on Australian business interests.
9.4.1 Strength, nature and duration of ties to Australia
The Tribunal accepts that the Applicant arrived in Australia in September 2002, at which time he was two years of age and has lived here without interruption. Having regard for paragraph 5.2(4) of the principles set out in the Direction, the Tribunal acknowledges that Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The Tribunal considers that this tolerance has been afforded to the Applicant by the fact that no action to deport him was taken when he was sentenced to 18 months detention on 7 August 2015, and again sentenced to 18 months detention on 11 October 2016. The fact that no action was taken to revoke the Applicant’s visa until after his convictions on 26 August 2019 demonstrates that the Applicant has been extended the higher level of tolerance contemplated by paragraph 5.2(4), and had now exhausted that tolerance.
The Tribunal notes that the Applicant has very little history of positive engagement with the community. He has a very small circle of friends, and a very limited work history in furniture removal.
The Tribunal considers that the duration of the Applicant’s stay, together with the presence of the few friends he has in Australia, should be given some weight in favour revocation of the decision under review. However, the Tribunal does not give great weight to this consideration in the light of the fact that the Applicant has contributed very little to the Australian community.
9.4.2 Impact on Australian business interests
There is no evidence before the Tribunal so as to enliven consideration of this sub-paragraph. It is not relevant.
FINDINGS: OTHER CONSIDERATIONS
The application of the Other Considerations in the present matter can be summarised as follows:
·International non-refoulement obligations: not relevant;
·Extent of impediments if removed: weighs in favour of revocation
·Impact on victims: neutral; and
·Links to the Australian community: weighs in favour of revocation.
CONCLUSION
The Tribunal is now required to weigh all of the Considerations in accordance with the Direction.
In considering whether there is another reason to exercise the discretion afforded by section 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal finds as follows:
·Primary Consideration 1 weighs heavily in favour of non-revocation;
·Primary Consideration 2 is given neutral weight;
·Primary Consideration 3 is given neutral weight;
·Primary Consideration 4 weighs heavily in favour of non-revocation; and
·To the extent that Other Considerations weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh Primary Considerations 1 and 4.
A holistic application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, the Tribunal cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review, dated 18 June 2021, is affirmed.
192. I certify that the preceding 191 (one-hundred-and-ninety-one) paragraphs are a true copy of the reasons for the decision herein of Member Roger Maguire
.........................[SGD]................................
Associate
Dated: 8 September, 2021
Date of hearing:
24 August, 3 September 2021
Applicant:
Solicitor for the Applicant:
Vaosa Faanoi
Victoria Lenton
Lenton Migration Law and Consultancy
Solicitor for the Respondent:
Kate Ervin
Clayton Utz
ANNEXURE A – Exhibit Register
Exhibit Number Description of Exhibit Date of Document Party Filing Date G1
G Documents – page numbered 1-303 R 30 JUN 21 A1 Applicant’s Statement of Facts, Issues and Contentions including
Attachment A – communication report
Attachment B – mental health report
Attachment C – psychological reportA 30 JUL 21 A2
Applicant’s Evidence Bundle – pages 1 - 156 A 19 AUG 21 A3
Applicant’s supplementary submissions A 19 AUG 21 R1 Respondent’s Statement of Facts, Issues and Contentions R 9 AUG 21
R2 Respondent’s Tender Bundle – pages numbered 1 - 354 4 AUG 21 R 4 AUG 21
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