Flint and Minister for Immigration and Citizenship

[2010] AATA 1011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 1011

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/4295

GENERAL ADMINISTRATIVE DIVISION        )

Re             DANIEL FLINT

Applicant

AndMINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

TribunalMs G Ettinger, Senior Member

Date16 December 2010

PlaceSydney

Decision      The Tribunal affirms the decision under review.

………………[sgd]………………...

Ms G Ettinger
  Senior Member

CATCHWORDS

Visa cancellation – visa cancelled pursuant to s 501 of the Migration Act 1958 – jurisdiction - whether the Applicant’s appeal was lodged within nine days after the day on which he was notified of the decision – Applicant fails character test – substantial criminal record – discretion to cancel visa – Minister’s Direction [41] issued under s 499(1) of the Migration Act 1958 – Direction [41] applied – primary considerations – protection of the Australian community – risk of recidivism – other considerations – family ties and the nature and extent of any relationship with the Australian community – decision under review affirmed.

Migration Act 1958 (Cth) ss 500(6B), 501

Direction [no. 41] – Visa refusal and cancellation under s 501

Migration Regulations 1994 reg 2.55

Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493

Re Heyward and Minister for Immigration and Citizenship [2009] AATA 536

REASONS FOR DECISION

16 December 2010 Ms G Ettinger, Senior Member

SUMMARY

1.      Mr Daniel Flint applied to this Tribunal for review of a decision of a delegate of the Minister for Immigration and Citizenship who cancelled his Class TY Subclass 444 Special Category (Temporary) visa on 16 September 2010 on the ground that because he has had a criminal conviction with a sentence of one year’s incarceration, he has a substantial criminal record, and he therefore does not pass the character test (section 501(7) of the Migration Act 1958, (the Act)).  Mr Flint’s visa was cancelled pursuant to section 501(2) of the Act.

2.      I have weighed up evidence given, and the submissions made in regard to the primary considerations, in particular the seriousness and nature of his conduct, and the overall risk of Mr Flint re-offending, and have decided that he poses a high risk in terms of compromising the protection of the Australian community.  I have taken into account the primary considerations and also the other considerations in Direction [41], and am satisfied that a consideration of these, in particular the protection of the Australian community, favour the cancellation of the Applicant’s visa, and affirming the decision of the delegate.

3.      My reasons follow.

ISSUES BEFORE THE TRIBUNAL

4.      Mr Flint is a person who does not pass the character test in section 501(6)(a) of the Act because he has a substantial criminal record. He was sentenced to prison for a year for common assault on 22 April 2010, and I find that his past and present criminal conduct contribute to the finding that he is not of good character in terms of the legislation.

5.      I must therefore consider whether pursuant to Ministerial Direction [41], I should exercise the discretion and set aside the decision of the delegate of the Minister for Immigration and Citizenship, and remit the matter to the Minister for reconsideration with a direction that Mr Flint’s visa not be cancelled.

6. Following the hearing, it came to my attention that Mr Flint may not have made his application to the Tribunal within the time limits provided for in section 500(6B) of the Act. That section states relevantly that such an application must be lodged with the Tribunal within nine days after the day on which the person (Mr Flint in this case), was notified of the decision in accordance with section 501G(1) of the Act. Otherwise there is no jurisdiction for the Tribunal to hear and determine the application.

RELEVANT LAW

7.      The relevant legislation in this matter is the Migration Act 1958, and Ministerial Direction [no. 41] on Visa refusal and cancellation under section 501 of the Act.

8. Section 501(2) states that the Minister may cancel a visa that has been granted to a person if the person does not satisfy the Minister that the person passes the character test.

9. Section 501(6) provides that a person does not pass the character test if the person has a substantial criminal record.  Substantial criminal record is defined in section 501(7) as, among other things, having been sentenced to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment where the total of those terms is two years or more. Mr Flint does not pass the character test because he has a substantial criminal record.

10.     Direction [41] which is made pursuant to section 499 of the Act must be applied when exercising the discretion where a person has been held to fail the character test in section 501 of the Act.

11.     I am mindful that the Objectives of Direction [41] as set out in paragraph 5 are, pursuant to paragraph 5.1(1), to regulate, in the national interest, the coming into, and presence in Australia, of non-citizens.  Paragraph 5.1(2) states that:

In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.

12.     Direction [41] contains a number of primary considerations and other considerations to which the Minister, and therefore this Tribunal, standing in his shoes, must have regard when considering the exercise of the discretion with regard to cancellation of a visa.

13.     The primary considerations in Direction [41] are set out in paragraph 10(1):

…

10.The primary considerations

(1)In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:

(a)   the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;

(b)   whether the person was a minor when they began living in Australia;

(c)   the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and

(d)   relevant international obligations, including but not limited to:

(i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and

(ii)the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

…

14.     The other considerations, where relevant, must be taken into account, but, generally, in accordance with Direction [41], the other considerations should be given less weight than the primary considerations.  The application of both the primary considerations and other considerations is discussed in the paragraphs below.

15.     However, there must first be a valid claim before the Tribunal has jurisdiction.

Was Mr Flint’s application for review lodged with the Tribunal within nine days after the day on which he was notified of the decision?

16.     Following the hearing, the Respondent drew the Tribunal’s attention to the date of Mr Flint’s application for review to the AAT, alerting the Tribunal that it may have been made more than nine days after he received the Minister’s decision which was dated 16 September 2010.

17.     In that regard I noted from the documents before me that Mr Flint did not sign to acknowledge receipt of the Notice of visa cancellation dated 16 September 2010.  On 6 October 2010, the Tribunal date stamped an application for review sent by Mr Flint from the Junee Correctional Centre dated 29 September 2010, in which he stated that he received the notice of the decision dated 16 September 2010, on 25 September 2010.  He gave no oral or written evidence about the receipt of the decision.

18.     The hearing took place on 7 December 2010, and Clayton Utz who represented the Respondent at the hearing wrote to the Tribunal on 13 December 2010, stating that:

The Respondent is satisfied that Mr Flint made his application within time.

Under reg.2.55 of the Migration Regulations 1994, notification that is provided by the giving of a document to a person by dispatching the document by prepaid post within 3 working days of the date of the document is taken to be received 7 working days after the date of the document.

In this case the notification letter sent to Mr Flint was dated 16 September 2010. Under reg.2.55 it is taken to have been received by Mr Flint on 27 September 2010.

Mr Flint then had 9 days to apply for review of the cancellation decision, requiring that the application be made to the Tribunal by 6 October 2010. As the application is date stamped as having been received by the Tribunal on 6 October, Mr Flint’s application for review appears to have been made within time.

19.     The Tribunal sent a copy of the letter from the Minister’s representatives with a covering letter explaining the issue to Mr Flint.

20. I have noted section 500(6B) states that if a decision under section 501 of this Act relates to a person in the migration zone, an application to the Tribunal for a review of the decision must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1). Accordingly, paragraph 29(1)(d) and subsections 29(7), (8), (9) and (10) of the Administrative Appeals Tribunal Act 1975 do not apply to the application.  No extension of time may be given.

21.     Regulation 2.55(7) of the Migration Regulations 1994 provides as follows:

If the Minister gives a document to a person by dispatching it by prepaid post or by other prepaid means, the person is taken to have received the document:

(a)    if the document was dispatched from a place in Australia to an address in Australia -- 7 working days (in the place of that address) after the date of the document; or

(b)in any other case -- 21 days after the date of the document.

22.     It can therefore be deemed that Mr Flint received the notification of the cancellation of his visa on 27 September rather than 25 September which Mr Flint had put down as the date of notification.  That would mean that his application to the Tribunal date stamped 6 October 2010 was within the period allowed by the legislation.  Accordingly the Tribunal had jurisdiction to hear his decision, and to give its reasons.

BACKGROUND

23.     Mr Flint, was born in New Zealand on 23 October 1987, is a citizen of New Zealand, and attended school there to year 11.  After he left school he worked as a labourer.  He told me that he came to Australia with his father in 2004 when he was approximately seventeen years old to start a new life and to move away from the trouble with the law in which he had been involved.

24.     I note without further comment, noting from the Movement Details included in the G-Documents before the Tribunal that the Applicant first arrived in Australia on 29 August 1991 under the name of Daniel Matiasi and departed on 12 September 1991 with the name of Daniel Flint.

25.     When Mr Flint made his application to the AAT, (dated 29 September 2010), he accompanied it with a handwritten letter in which he stated that his mother passed away when I was a child and have never met my father as my parents separated when things where (sic) rough before I was born.

26.     In his oral evidence and in a statement made to the Tribunal dated 29 November 2010, Mr Flint acknowledged that his father, who was involved in the fish trade, had brought him to Australia to work in the fish trade.  He said he wanted to start a new life away from the crime in which he had been involved in New Zealand.  He acknowledged the statement accompanying his application to the AAT in which he said he had never met his father contained an untruth.  He explained it by saying that he had written it in a moment of distraction, and in attempting to maximise his chances of staying in Australia.  He said that he sees his father perhaps once a week when his father is here on business.

27.     I have detailed Mr Flint’s convictions in the section headed “Protection of the Australian Community”, and subheading, “Seriousness and nature of the conduct”.  He has a significant number over a continuous period from 2005.

28.     As noted above, Mr Flint’s visa was cancelled by a delegate of the Minister for Immigration and Citizenship on 16 September 2010 on the ground that he did not pass the character test because having been sentenced to 12 months for a criminal act, he has a substantial criminal record with the terms of section 501(7) of the Act. Mr Flint applied to this Tribunal for review of that decision. I am satisfied from the evidence that he has a substantial criminal record, and that his present and past conduct indicate he is not of good character. I moved then to address the Primary Considerations under Direction [41].

PRIMARY CONSIDERATIONS

29.     The relevant primary considerations to consider are the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence, whether Mr Flint was a minor when he began living in Australia, and the length of time that he has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct.  International obligations and the interests of any child are not relevant in this case.

Protection of the Australian Community

30.     The primary consideration, protection of the Australian community in Direction [41], has been broken down into consideration of the seriousness and nature of the relevant conduct, and the risk that the conduct may be repeated.

Seriousness and nature of the conduct

31.     With regard to the seriousness of Mr Flint’s conduct, I note that paragraph 10.1.1(1) states that Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community.  A non-exhaustive list of offences and conduct are given in paragraph 10.1.1(2).

32.     I am mindful that Mr Flint has been involved in crime since before coming to Australia at the age of 17.  His evidence was that he came to Australia in November 2004 to start a new life, and get away from crime.  However he had offended by early 2005, within a short time of arriving.

33.     Exhibit R4, which was a NSW Police Force Court History Convictions document pertaining to Mr Flint, showed that the Applicant was charged on 17 April 2005 of:

·     Assault Officer in Execution of Duty – T2

·     Carry Cutting Weapon upon Apprehension

·     Possess/Use a Prohibited Weapon upon Apprehension w/o Permit – T2

34.     Mr Flint was convicted of all three offences in New South Wales in his absence in September 2005.  He told me that the knife was a penknife which he used to open boxes at his job at the fish markets.  He also explained that he used to have no regard for the law and considered himself invincible, but that the gaol term had really influenced his thinking; it was an eye opener and it had changed him.

35.     In July 2005, Mr Flint returned to New Zealand, to further his studies in plumbing and gas fitting, he said.  He told me that he completed 12 weeks of the course.  The Movement Details included in the G-Documents before the Tribunal show that Mr Flint again arrived in Australia on 7 August 2005 and departed on 25 December 2005.

36.     However, Exhibit R3 a document of the Ministry of Justice in New Zealand records that:

·     Mr Flint was convicted and sentenced in relation to disorderly behaviour offences on 16 November 2006;

·     He was convicted and sentenced in relation to disorderly behaviour offences on 15 November 2007;

·     He was convicted and sentenced for excess alcohol in his bloodstream while driving (aged under 20 years), resulting in disqualification from driving on 15 November 2007;

·     He was found in breach of a community work order on 9 December 2008;

·     He was convicted of breath alcohol level over 400 mgms/litre of breath on 29 January 2009.

37.     A print-out of the Movement Details indicate Mr Flint last arrived in Australia on 9 April 2009.

38.     Exhibit R4 also recorded a charge on 25 June 2009 with an appearance at Waverley Local Court on 22 July 2009:

·     Refuse/fail to comply with Direction under part 14 for which Mr Flint was fined $500 plus court costs;

·     Use offensive language in/near public place/school with a fine of $500;

·     Resist officer in execution of duty.

39.     On 5 November 2009 he appeared in the Children’s Court on three charges arising from the 2005 offences, which are mentioned above, and on which he had been convicted ex parte.  Mr Flint was given a fine, a control order, (being a suspended sentence), and placed on a bond.

40.     Magistrate Moore relevantly stated on 5 November 2009:

I trust it is probably alcohol related offending.

…

if you are going to continue to behave in this manner in this state, you are going to go to gaol, sir, and remain in gaol

…

If you continue to act in a violent, unsociable manner you are going to gaol.

41.     On 12 December 2009, only a month or so afterwards, Mr Flint was charged with common assault of which he was convicted at Burwood Local Court on 3 February 2010.  He was also charged with, and found convicted of obtain money by deception, which he said was a refusal to pay a shopkeeper $5 for use of his internet facility.

42.     On 22 April 2010, Mr Flint appeared for sentencing in the Grenfell Local Court in relation to:

·     Common assault;

·     Obtain money by deception;

·     Failure to appear;

·     Breach suspended control orders; and

·     Breach apprehended violence order.

43.     On the assault charge he was sentenced to gaol for 12 months commencing 13 April 2010.  Magistrate Dare stated:

And I am satisfied, having considered all possible alternatives, that it would be inappropriate to deal with this matter in any other way having regard to the objective seriousness of the offence, the antecedents, the personal deterrents, the prevalence of the offence in the community and the need for general deterrents.

…

… his prior history shows an attitude of continuing disobedience to the law.

44.     The list of offences above indicate that Mr Flint has been involved in crime involving violence since his teenage years.

45.     I moved then to consider the second limb relating to the protection of the Australian community, being the risk of recidivism.

Risk that the conduct may be repeated

46.     I am mindful that Mr Flint has had criminal convictions involving violence since he was approximately 17 years old, and that they appear to be continuing.  He also admits to drinking excessive amounts of alcohol, and has given me no indication that he is addressing that problem by attending AA or counselling.  Mr Flint’s evidence was that as recently as in early 2010 he was drinking to console himself and had few friends.

47.     When ordered to counselling by the Local Court, he only attended one session.

48.     Taking into account all the evidence and submissions, I am satisfied that the risk of Mr Flint again engaging in criminal conduct in Australia, including assault is high.  I am satisfied that paragraph 10.(1)(a), of the “primary considerations”, being the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes of violence is likely to be compromised if Mr Flint is to remain in Australia.

Whether the person was a minor when they began living in Australia

49.     Mr Flint was approximately 17 years old when he arrived in Australia on 28 November 2004, and had already been in trouble with the law in New Zealand.  As indicated above, by April 2005, he had been charged with assaulting an officer, carrying a cutting weapon and possessing or using a prohibited weapon which he said was a knife used in his job at the fish markets.

50.     Mr Flint has only been in Australia for approximately two years.  The above evidence weighs against him remaining.

The length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct

51.     As indicated above, Mr Flint arrived in Australia on 28 November 2004, and by April 2005, he had been charged with assaulting an officer, carrying a cutting weapon and possessing or using a prohibited weapon which he said was a knife used in his job at the fish markets.  Mr Flint said that he was drinking, and I noted that Magistrate Moore relevantly stated on 5 November 2009:

I trust it is probably alcohol related offending.

…

if you are going to continue to behave in this manner in this state, you are going to go to gaol, sir, and remain in gaol

…

If you continue to act in a violent, unsociable manner you are going to gaol.

52.     As indicated in the paragraphs above, Mr Flint continued to drink and to offend, including committing several assaults, and by 2010 he was incarcerated.

53.     Deputy President Walker who said in ReHeyward and Minister for Immigration and Citizenship [2009] AATA 536: [i]t is not the total period of ordinary residence that is relevant under Direction No 41, however, but the length of time before engaging in criminal activity or activity that bears negatively on the applicant’s character.  In fact in Mr Flint’s case, the total period of residence is approximately two years.

54.     An evaluation of this primary consideration does not favour the Applicant.

Relevant international obligations

55.     International obligations are not relevant to determination of this matter.

OTHER CONSIDERATIONS

56.     Direction [41] states that other considerations, where relevant, must be taken into account, but, generally, should be given less weight than the primary considerations.  Relevant considerations are always family ties, the nature and extent of the Applicant’s relationships with those in the Australian community, any hardship which a move away from Australia would cause, and the Applicant’s links with New Zealand.

57.     In considering the various sub-paragraphs of paragraph 11 of Direction [41], I am mindful that Mr Flint’s age, and education and health are not particularly relevant considerations in this case.

58.     I have already noted above that Mr Flint was born in New Zealand where he lived until 2004 when he moved to Australia, aged 17.  He has lived in Australia for approximately two years, and in New Zealand for the rest of his life.  His mother is no longer alive, and his father, whom he sees sporadically, lives in New Zealand, and visits Australia.  He has relations in New Zealand.

59.     As to family in Australia; Mr Flint’s aunt Ms Paula Vatikani’s statement was before the Tribunal as Exhibit A2, and she gave oral evidence, telling me that she cared for him, and would keep an eye on him if he were allowed to stay in Australia.  Mr Flint’s sister Ms Eline Kisona gave a statement which is Exhibit A3 before the Tribunal.  She could not be reached by telephone as previously arranged, so I did not have oral evidence from her.  Ms Kisona lives in country NSW.  She said in her statement that they had family in Australia, and that Mr Flint was a good person with a great heart, and that he had learnt his lesson now.

60.     Mr Flint’s family and relationships of significance in Australia are his aunt, his brother, and perhaps his sister.  He has family in New Zealand where he has spent most of his life.

61.     I am mindful of Mr Flint’s evidence that he was drinking in early 2010 because he was drowning his sorrows, and did not know many people, but that he now feels as a result of his gaol sentence, he is a changed person.  However as recently as 6 July 2010, Mr Flint wrote in a submission to the National Character Consideration Centre that he considered the sentence he received for pushing a café owner excessive.  He stated that: the sentence is far too servere (sic) for such a trivial offence.  Mr Flint has clearly not understood the seriousness of assault after all this time.

62.     He told me he had thought of doing volunteer work with the Salvation Army, and doing study but was unable to tell me that he had done anything about either apart from looking up the Salvation Army on the internet.  Further, Mr Flint had been ordered by the Local Court to undertake counselling, and the evidence was that he had only attended one session.

63.     I am not satisfied that Mr Flint would suffer hardship if he were sent back to New Zealand.  I am however satisfied that Mr Flint’s family situation in Australia does not favour Mr Flint remaining in Australia.

64.     I have taken into account the other considerations, and consider that on balance they do not favour exercise of the discretion to recommend that the Applicant’s visa not be cancelled.  However, I am mindful that these are given less weight than the primary considerations.

65.     As to the primary considerations, I am satisfied that the protection of the Australian community would be compromised by Mr Flint remaining in Australia.

CONCLUSION

66.     I have considered all the evidence before me.  My conclusion is that Mr Flint has a substantial criminal record with a sentence of one year’s incarceration imposed for assault in 2010.  In addition his conduct, past and present, with alcohol a continuing problem, and his criminal conduct which I have detailed in the paragraphs above, lead me to the conclusion that he is not of good character.

67.     I then turned to weigh up the primary considerations, to which I am required to give greater weight.  Not surprisingly Mr Flint wanted to be able to remain in Australia, while Mr Sharpe, the Minister’s representative, contended that in determining whether to exercise the discretion to not cancel Mr Flint’s visa, the primary consideration of the protection of the Australian community, and in particular the risk that Mr Flint may re-offend weigh in favour of the cancellation of Mr Flint’s visa.

68.     The pattern of offending leads me to the conclusion that the overall risk of Mr Flint re-offending is high (Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493). He has had a history of continuing alcohol consumption and charges such as assaults in the short time he has resided in Australia, and indeed in the time he returned to New Zealand between 2005 and 2009. His offences involve violence, and a disregard for authority such as police and the courts.

69.     Mr Flint had been in Australia only a short time before engaging in criminal activity.  This weighs against the Applicant remaining in Australia.

70.     I am satisfied to the requisite standard that the protection of the Australian community, and consideration of the other primary considerations favour the cancellation of Mr Flint’s visa.

71.     In terms of the relevant other considerations to which I am required to give less weight; in my view, Mr Flint’s family ties are the most relevant of the other considerations, and they do not favour Mr Flint remaining in Australia.  He has an aunt, a sister and a brother, and I was told, other unnamed relatives in Australia.  However, he has only lived here for approximately two years, and will be able to resettle back in New Zealand where he had commenced a course as a plumber and gasfitter.

72.     Having weighed up these considerations, I am satisfied that the decision under review should be affirmed.

DECISION

73.     The Tribunal affirms the decision under review.

I certify that the preceding 73 paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member

Signed:   …[sgd]..........................................................................

Associate

Date of Hearing  7 December 2010
Date of Decision  16 December 2010
Applicant’s Counsel                  Self Represented
Solicitor for the Respondent     Mr W Sharpe, Clayton Utz