Garland and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2022] AATA 2022
•29 June 2022
Garland and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2022 (29 June 2022)
Division:GENERAL DIVISION
File Number: 2022/2989
Re:Takutai Garland
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:29 June 2022
Place:Perth
The Reviewable Decision is affirmed.
................[Sgd]................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of the Applicant’s Visa – character test – substantial criminal record – offences include aggravated burglary with intent in dwelling and assault occasioning bodily harm – Direction No 90 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – no domestic violence – no minor children – expectations of the Australian community – extent of impediments if removed to New Zealand – links to the Australian community – Applicant is a 50 year old man who has resided in Australia for 33 years – strength, nature and duration of ties to Australia – there is not another reason to revoke the Cancellation Decision – Reviewable Decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 499(1), 499(2A), 500(6B), 500(6L), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501G(1)
Sentencing Act 1995 (WA) s 11
CASES
CFVG and Minister for Immigration and Border Protection [2017] AATA 1395
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
JFSQ and Minister for Home Affairs [2019] AATA 616
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166
Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 442
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
Omar v Minister for Home Affairs [2019] FCA 279
Subasinghe and Minister for Home Affairs [2019] AATA 751
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Webb v Minister for Home Affairs [2020] FCA 831
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021) paras 4(1), 5.1, 5.1(3), 5.2, 5.2(5), 6, 7, 8, 8(1), 8(2), 8(3), 8(4), 8.1, 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(a)(i), 8.1.1(1)(b), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2, 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(b)(i), 8.1.2(2)(b)(ii), 8.2, 8.3, 8.3(1), 8.4, 8.4(1), 8.4(2), 8.4(2)(a), 8.4(2)(b), 8.4(2)(c), 8.4(2)(d), 8.4(2)(e), 8.4(2)(f), 8.4(3), 8.4(4), 9, 9(1), 9(1)(a), 9(1)(b), 9(1)(c), 9(1)(d), 9.1, 9.2, 9.2(1), 9.3, 9.3(1), 9.4, 9.4.1, 9.4.1(1), 9.4.1(2), 9.4.2(3)
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
29 June 2022
BACKGROUND
The Applicant is a 50-year-old man who is a citizen of New Zealand. He has resided in Australia since 1988 (G7/47).
The Applicant has a short criminal and traffic history. He committed three driving/ traffic offences in 1998 and 1999. In November 2011 he committed a cannabis possession offence for which he received a $200 fine in January 2012 (R2/101).
On 31 August 2016, the Applicant was sentenced to a total term of five years in the Perth District Court for “aggravated burglary with intent in dwelling”. Based on the same evidence, he was also convicted of “assault occasioning bodily harm” for which he received no further punishment (G4/36; R2/101). I will refer to these offences as the Cancellation Offences.
Consequently, the Applicant was sent a letter advising him that his Class TY Subclass 444 Special Category (Temporary) visa (Visa) had been cancelled on 7 January 2019, under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) (G14) (Cancellation Decision). A subsequent letter advising the Applicant of the Cancellation Decision was sent on 9 December 2021 due to concerns that the original notice failed to comply with legal requirements identified by the Federal Court (G15/82).
The basis of the Cancellation Decision was that the Applicant did not pass the character test because he had a substantial criminal record and was currently serving a full-time sentence of imprisonment for an offence against a law of the Commonwealth, a State or a Territory. The 9 December 2021 letter advising the Applicant of the Cancellation Decision stated that the Applicant could make representations to seek revocation of the Cancellation Decision.
In a request dated 28 December 2021, the Applicant requested revocation of the Cancellation Decision. He provided a personal circumstances form and supporting evidence including character references (G7 – G13).
After considering the Applicant’s representations, on 5 April 2022, a delegate of the Minister decided not to revoke the Cancellation Decision under s 501CA(4) of the Migration Act (G2/12). This is the Reviewable Decision currently before me.
The Applicant was notified of the Reviewable Decision on 6 April 2022 when it was emailed to him in immigration detention (G1/4; G2/7-9).
On 13 April 2022, the Applicant lodged an application in the General Division of this Tribunal seeking a review of the Reviewable Decision (G1). Therefore, the Applicant filed his application for review within the nine-day period prescribed by s 500(6B) of the Migration Act.
Section 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the day on which an applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the
84-day period started running from 6 April 2022, meaning that I must hand down a decision on or before 29 June 2022.
ISSUES
The issues that I need to determine are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether I am satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).
THE HEARING AND THE EVIDENCE
I heard this application on 9 June 2022 at the Perth Registry of the Tribunal. The hearing took place in person.
The Applicant was self-represented. The Respondent was represented by Mr A Gerrard of The Australian Government Solicitor.
The Applicant gave oral evidence at the hearing and was cross-examined.
The Applicant called the following witnesses who gave evidence at the hearing:
(a)His friend and former partner, YB, by Microsoft Teams; and
(b)His older sister, JC, by telephone.
I admitted the following documents into evidence at the hearing:
(a)Unsigned letter from AP, a friend of the Applicant’s, dated 10 January 2022 (Exhibit A1);
(b)Letter dated 23 December 2021 from YB (Exhibit A2);
(c)Undated and unsigned letter addressed to the Tribunal from JC (Exhibit A3);
(d)Undated and unsigned letter addressed to the Tribunal from HG, the Applicant’s brother (Exhibit A4);
(e)Undated and unsigned letter from AB, a former colleague of the Applicant’s (Exhibit A5);
(f)Section 501 G Documents, labelled G1 to G17, comprising pages 1 to 114 (Exhibit R1); and
(g)Supplementary s 501 G Documents, labelled SG1-SG2, comprising pages 1 to 116 (Exhibit R2).
Prior to the hearing the Respondent filed a Statement of Facts, Issues and Contentions on 9 May 2022 (SFIC). The Applicant did not file a SFIC.
LEGISLATIVE FRAMEWORK
Migration Act
Section 501(3A) of the Migration Act provides that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6)(a) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(Original emphasis.)
Section 501CA of the Migration Act further provides, in part:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
(Original emphasis.)
Direction No 90
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 8 March 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 90) under s 499 of the Migration Act, which commenced operation on 15 April 2021. This Direction replaced the previous Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018).
Paragraph 5.1 of Direction No 90 sets out “[o]bjectives”, with para 5.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction No 90 sets out “[p]rinciples” which “provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA”. The principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)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.
(3)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 measureable [sic] risk of causing physical harm to the Australian community.
(4)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 noncitizens 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 noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)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 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 measureable [sic] risk of causing physical harm to the Australian community.
Informed by the principles set out in para 5.2 of Direction No 90, the decision-maker (in this case, the Tribunal – see definition of “decision-maker” in para 4(1) of Direction No 90) must consider the primary considerations listed in para 8 of Direction No 90, and the other considerations listed in para 9 where relevant (para 6 of Direction No 90).
Specifically, para 8 of Direction No 90 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia;
(4)expectations of the Australian community.
Paragraph 9 of Direction No 90 lists other considerations to be considered as follows:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests
Guidance as to how a decision-maker is to apply the considerations in
Direction No 90 can be found in para 7, “[t]aking the relevant considerations into account”, which provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Minister may revoke the Cancellation Decision if the Minister is satisfied that the Applicant passes the character test (s 501CA(4)(b)(i) of the Migration Act).
Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act.
A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act).
As noted in the “background” section above, on 31 August 2016, the Applicant was sentenced in the Perth District Court to a five-year term of imprisonment for the offence of “aggravated burglary with intent in dwelling” (R2/101).
The Applicant has therefore been sentenced to a term of imprisonment of 12 months or more, and as a result, does not pass the character test by operation of s 501(7)(c) of the Migration Act. As the Applicant fails the character test, the statutory power to revoke will only be enlivened if there is “another reason” why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
In Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 442 at [29], Senior Member Nikolic explained the meaning of “another reason” with reference to the Full Federal Court’s decision in Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 (Viane), [64] per Colvin J:
It is common ground the Applicant fails the character test. As such, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the reviewable decision. The issue to be determined is whether there is ‘another reason’ for revocation. This task was considered by the Full Court of the Australian Federal Court (FCAFC) in Viane:
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.
That is, there “must be a reason that carries sufficient weight or significance” (Viane) for me to be satisfied that the Cancellation Decision should be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
Protection of the Australian community (paras 8(1) and 8.1 of Direction No 90)
Paragraph 8.1(1) of Direction No 90 provides that:
(1)When considering protection of the Australian community, decision-makers should keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of Direction No 90 then provides:
(2)Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen's conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paras 8.1(2)(a) and 8.1.1(1) of Direction No 90)
Paragraph 8.1.1(1) of Direction No 90 provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to 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;
(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) any 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));
(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 again, , [sic] 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 courts 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;
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).
Overview of the Applicant’s offending
As I noted in the background section above, the Applicant has a relatively short criminal history. His first three offences were driving/ traffic related offences for which he received the following spent convictions (R2/101):
(a)“exceed the speed limit by 30-40 kilometres per hour” committed on 5 September 1998 for which he received a $100 fine on 22 October 1999;
(b)“unlicensed vehicle” committed on 30 May 1999 for which he received a $50 fine on 18 June 1999; and
(c)“refused breath test” also committed on 30 May 1999 for which he received an $800 fine and a six-month drivers’ licence disqualification on 4 October 1999.
On 17 January 2012, the Applicant was convicted in the Fremantle Magistrates Court of “possess a prohibited drug (cannabis)”. Police had conducted a routine traffic stop on 22 November 2011. They searched the Applicant and found a clip seal bag in his pocket containing less than one gram of cannabis (R2/103-104).
On 31 August 2016, the Applicant was sentenced in the Perth District Court for the Cancellation Offences which he committed with a co-offender on 29 May 2014 (G4/36; R2/101). These offences and convictions were:
(a)“aggravated burglary with intent in dwelling” for which he was sentenced to five years imprisonment; and
(b)“assault occasioning bodily harm” for which he received no further punishment due to the operation of s 11 of the Sentencing Act 1995 (WA) (Sentencing Act). I discuss this provision of the Sentencing Act in further detail below.
The facts of the Cancellation Offences were summarised by the sentencing Judge, His Honour Stone DCJ (G4/33). They involved the Applicant and the co-offender entering the victim’s home without permission. The Applicant held the victim’s wrists, and his co-offender struck the victim several times with a metal bar. His Honour Stone DCJ explained:
At about 9:30 pm on 29 May 2014 the complainant, [victim’s name omitted], returned to his unit in [suburb name omitted] from work. He entered the unit after closing but not locking the security front door and front wooden door.
After he turned on the TV he heard the sound of the security front door and expected to hear a knock on the front wooden door. You then entered the unit via the front wooden door. You were followed by another male intruder.
You were both wearing balaclavas and dark clothing. As [the victim] approached you, you grabbed him by the wrists while the other intruder reached over your shoulder from behind and struck [the victim] on the head three times with a metal bar before [the victim] fell to the ground where he was struck on the jaw and shin. You and the other intruder left without saying anything.
As a result of the attack [the victim] was hospitalised for two nights. He sustained a fractured skull with bleeding underneath which required 25 staples and three lacerations on his head. He also sustained injuries to his jaw and shin.
Having regard to [the victim’s] description of the first intruder the DNA evidence and the lies you told in your police interview I am satisfied beyond reasonable doubt that you were the first intruder.
Assessing the nature and seriousness of the conduct
The “assault occasioning bodily harm” was a violent assault perpetrated by the Applicant and his co-offender where the victim was struck several times with a metal bar. This was a “violent crime” and therefore is a type of offence described in Direction No 90 as being “very serious” (para 8.1.1(1)(a)(i)).
The seriousness of the “assault occasioning bodily harm” offence, but also the “aggravated burglary with intent in dwelling” offence is further highlighted by the aggravating factors, which His Honour Stone DCJ described in the sentencing remarks as follows (G4/33-34):
There are aggravating features to your offending. Apart from those that have been pleaded in relation to count 1 the aggravating features are the fact that the victim was vulnerable, he was alone in his own home, it was two against one and it is obvious from my observations of view and [the victim] that you are a much larger man than [the victim].
A further aggravating factor is the fact that a weapon was involved. A metal bar was used by the second intruder. Thirdly the violence was of sufficient force to knock the victim to the ground and fracture his skull.
Fourthly the apparent motivation for the attack is somewhat sinister. Nothing was said, there was no explanation for what happened, nothing was stolen and you and the other intruder were both wearing balaclavas.
And finally, your actions were deliberate and premeditated. You’ve obviously gone there masked and armed with the intent to assault.
The serious injuries sustained by the victim, which included a fractured skull with bleeding underneath which required 25 staples, as well as three lacerations, also indicate the seriousness of the offending. The sentencing Judge described these as “significant injuries” that were “towards the upper range for that type of injury”. His Honour Stone DCJ further observed, “[i]t must have been a terrifying ordeal for him to find himself confronted at night in his own home by two masked intruders whilst one of them was armed with a weapon” (G4/34).
A further indication of the seriousness of the Cancellation Offences is the sentencing Judge’s description of the offending as a serious home invasion against a vulnerable victim that was premeditated, but with no apparent explanation (G4/35):
I say it is a serious example of a home invasion because the victim was vulnerable and he sustained significant injuries because of the violence inflicted upon him. There were two of you involved, masked and armed with a weapon.
There is no explanation whatsoever for what occurred and there are sinister overtones. Your actions were deliberate and premeditated. You and the other man had obviously gone to that unit with intent to inflict injury on the occupant.
Paragraph 8.1.1(1)(b) of Direction No 90 states that crimes against vulnerable members of the community are “serious”. It is unclear what the victim’s vulnerabilities were, although the sentencing Judge commented that the Applicant was much larger than the victim. I accept the assessment of the sentencing Judge who referred to the victim as being “vulnerable” on two occasions in the sentencing remarks (G4/33; 35).
As I detailed above, the Applicant also has three driving/ traffic related offences. The unlicensed vehicle and speeding offences are, in my view, at the less serious range of offences than many driving offences, as was demonstrated by the $50 and $100 fines imposed on the Applicant. Refusing a breath test is more serious, as was indicated by the drivers’ licence disqualification that the Applicant received, in addition to a higher fine of $800. Also, any seriousness is lessened by the offences occurring over 22 years ago, and there have been no further offences of that nature. These convictions are also recorded as spent which tends to suggest that they are less serious.
The Applicant’s 2012 cannabis possession offence is also of a less serious nature due to the small quantity of the drug involved. The $200 fine is also an indication of the less serious nature of this offence.
I now turn to the sentences imposed by the courts (para 8.1.1(1)(c) of Direction No 90). I have already addressed the fines and a disqualification for his driving/ traffic and cannabis offences above. The sentencing of the Cancellation Offences requires some clarification. As I noted above, the Applicant received a five-year sentence of imprisonment for the “aggravated burglary with intent in dwelling” offence and no further penalty for the “assault occasioning bodily harm” offence. The penalty for this latter offence was due to the operation of s 11 of the Sentencing Act which provides:
(1) If the evidence necessary to establish the commission by a person of an offence under the law of this State is also the evidence necessary to establish the commission by that person of another such offence, the person may be charged and convicted of each offence but is not to be sentenced for more than one of the offences.
Thus, because the Applicant was convicted of two offences (the Cancellation Offences) based on the same evidence, a penalty was only imposed for one of them. This situation arose due to the operation of s 11 of the Sentencing Act, and therefore is not an indication that the “assault occasioning bodily harm” offence was any less serious. The sentencing Judge explained (G4/35):
This was a serious example of a home invasion. I regard the assault occasioning bodily harm as part and parcel of the home invasion and I will impose no punishment for it.
The sentencing remarks for the Cancellation Offences state the need for a custodial penalty. This is a further indication of the serious nature of both offences. For example, His Honour Stone DCJ stated (G4/33):
The gravity and seriousness of your offending is reflected in the statutory maximum penalties for the offences committed. The statutory maximum penalty for an offence of aggravated burglary of a dwelling is 20 years’ imprisonment. The statutory maximum penalty for an offence of assault occasioning bodily harm is five years’ imprisonment.
The sentencing Judge also concluded that the Cancellation Offences were so serious that a term of five years’ custodial imprisonment, with parole eligibility after three years, was necessary (G4/36):
There is a need for specific deterrence, there is a need for general deterrence. This type of behaviour will not be tolerated in the community …
I conclude that in view of the seriousness of the offence of aggravated burglary, a term of immediate imprisonment is the only appropriate disposition …
I consider that an appropriate term of imprisonment for count 1 is, in all the circumstances, five years.
I impose no punishment for count 2.
I now turn to the frequency of the Applicant’s offending, and whether there is any trend of increasing seriousness (para 8.1.1(1)(d) of Direction No 90). The Applicant’s offending history is relatively short and infrequent. He has only committed six offences in total. Three of his offences are driving/ traffic related offences committed in 1998 and 1999. After a gap of approximately twelve years, the Applicant committed the cannabis possession offence. Approximately two and a half years later, he committed the Cancellation Offences, which were significantly more serious than his previous offences.
The Applicant cannot be regarded as a repeat offender. He has only committed six offences, with only three of them being criminal offences. I therefore do not regard there to be any cumulative effect of repeat offending (para 8.1.1(1)(e) of Direction No 90).
There is no evidence that the Applicant has provided false or misleading information to the Department, such as failing to disclose criminal convictions on an incoming passenger card (para 8.1.1(1)(f) of Direction No 90).
Paragraph 8.1.1(1)(g) of Direction No 90, requires me to consider whether the Applicant previously received any formal or other written warnings that further offending may affect his migration status. He has not received any warnings of this nature.
The Applicant does not have a lengthy criminal history when compared to many that come before the Tribunal. He has not frequently offended and there is no cumulative effect of repeated offending. He has not offended after being warned and has not intentionally provided misleading information to the Department. His driving/ traffic offences and his cannabis possession offence are of a low degree of seriousness, as indicated by the length of time since these offences and the fines imposed. However, his most recent offending which formed the basis for the cancellation of his Visa (the Cancellation Offences) are very serious. My conclusion in this regard is based on the violent nature of the offending against a vulnerable victim, the significance of the victim’s injuries which the sentencing Judge described as being in the upper range for assault occasioning bodily harm, and the other aggravating factors referred to by the sentencing Judge.
On balance, I find that para 8.1.1 of Direction No 90, the nature and seriousness of the conduct, weighs strongly against the revocation of the Cancellation Decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No 90)
Paragraph 8.1.2(1) of Direction No 90 provides:
(1)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 harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of Direction No 90 provides, in part, in relation to assessing risk:
(2)In assessing the risk that may be 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 the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i) information and evidence on the risk of the noncitizen re-offending; and
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).
Nature of the harm (para 8.1.2(2)(a) of Direction No 90)
Broadly speaking, I am required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct. This firstly requires a consideration of the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or serious conduct (para 8.1.2(2)(a) of Direction No 90).
If the Applicant was to reoffend in a violent manner, the harm that could result to members of the Australian community could include psychological harm, serious physical injury, impairment or even loss of life. General offending such as entering a person’s home without consent, even in the absence of any violence, can cause a range of harms, including psychological harms to victims.
The harms that can result to members of the public (including innocent road users and pedestrians) from driving/ traffic related offences are potentially very serious, and include physical injuries or loss of life, and possibly psychological harm. However, for the reasons set out below, I am of the view that there is a very low likelihood of the Applicant committing driving/ traffic offences in the future.
Likelihood of engaging in further criminal or other conduct: Information and evidence on the risk of reoffending and evidence of rehabilitation (para 8.1.2(2)(b) of Direction No 90)
Next, I am required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence (para 8.1.2(2)(b)(i) and sub-para (ii) of Direction No 90).
The Applicant does not have a long criminal history when compared to many seen by this Tribunal. Indeed, half of his criminal history comprises driving/ traffic offences committed in 1998 and 1999. He only has three criminal offences. The first was the cannabis possession offence from November 2011. The remaining two were the Cancellation Offences which arose from the same circumstances on 29 May 2014. He did not commit any offences between June 1999 until November 2011. He did not commit any offences between December 2011 and April 2014. The Applicant’s short criminal history, and the gaps in his offending, when contrasted with the 33 years that he has lived in the Australian community, are to his credit because they indicate that he can live in the community without offending.
The Applicant also has support from friends and family members in the community. He has strong emotional support from his friend YB. His brother, HG and sister, JC can also provide emotional support, assistance with accommodation, and assistance with finding the Applicant employment in the trucking or mining industry in Queensland (A4). The Applicant’s sister, JC, further offered to assist him with money, job applications or in any other way she could (transcript/54) such as providing moral and social support (transcript/42). Having the support of pro-social persons in the community may assist the Applicant to reintegrate into the community, to abstain from drugs, and to reduce the likelihood of his reoffending.
The Applicant also has a work history in the mining industry, security and as a tow truck driver, and his skills and experience may help him to find employment if he is released into the Australian community. If the Applicant can meaningfully occupy his time through employment, it may assist him to remain abstinent from drugs and not to reoffend.
However, of concern is the escalation in his offending, with the Cancellation Offences being significantly more serious than his previous offending. This offending occurred not long after the Applicant started using methamphetamines (“ice”). His evidence at the hearing was that he began using ice in approximately 2013 and that he was taking it two to three times per week (transcript/19). He stated that he had also been at a party drinking alcohol, smoking cannabis, and using ice immediately prior to the offending.
There is no evidence that the Applicant has taken any drugs since he went to prison in August 2016. This period of abstinence may assist to break the cycle of the Applicant’s drug use and may assist him to remain abstinent in the community.
The Applicant had a significant methamphetamine addiction leading up to his offending when he was using two to three times per week. He has not undertaken any rehabilitation for his substance abuse issues. He agreed at the hearing that he needed to do a program to address these issues and stated an intention to do so if he is released into the community (transcript/31). There is no evidence of any enrolment or contact with counsellors or rehabilitation providers, nor any clear plan about how the Applicant will abstain from substance abuse if he is released into the community. The Applicant undertook an anger management course in August 2021 through to November 2021 (G11/66-72), but this course did not address substance abuse or general offending. I am concerned that the Applicant has unmet treatment needs concerning substance abuse which was a factor contributing to the Cancellation Offences.
The Applicant denied his own parole, and his maximum sentence expired on 12 August 2021 (R2/77-78; 89). He will therefore not have the benefit of a period of parole supervision and monitoring with conditions that may otherwise assist with his rehabilitation and reintegration into the community and to abstain from drugs.
The Applicant was assessed by prison treatment assessors on 11 November 2016 as being a high risk of general offending, and a low risk of violent reoffending (R2/86-87). An individual management plan report approved on 24 February 2021 stated that the Applicant was assessed as requiring the “General Offending – Medium Program” (R2/78). The plan continued to state that he would not be booked to attend any programs “due to his stance of denial”. Thus, the Applicant has not undertaken any programs to address his offending behaviour.
Further, in a letter to the Department dated 19 February 2021, the Applicant stated, “I am enrolled in drug and alcohol programme” (G9/64). There is no evidence of any such enrolment. Indeed, a classification review performed on 18 February 2021 stated that the Applicant “currently refuses to participate (includes programs not currently offered) or refuses to transfer to participate” (R2/76). The Applicant’s reluctance to engage in treatment in a custodial setting raises doubts as to the likelihood of the Applicant engaging in substance abuse rehabilitation if he was released into the Australian community.
The Applicant initially denied his offending and the details of the offending that he has described have changed over time. Nevertheless, in each version of events, the Applicant has either denied or attempted to minimise his involvement in the offending.
When sentencing the Applicant for the Cancellation Offences, His Honour Stone DCJ stated that the Applicant had “shown no remorse” (G4/35). The Applicant’s evidence at the hearing was that he was “still in denial” at that stage (transcript/30). His treatment assessment report dated 11 November 2016 confirms this, and states that the Applicant “categorically denied being involved in this offence and is intending to appeal the conviction”. It further states that he “believes that his DNA was placed at the scene of the crime by way of “secondary transfer”; a concept he had learnt about from years of tow-truck driving for [company name omitted] who were contracted to transfer stolen vehicles for the Police” (R2/85).
Although the individual management plan approved on 24 February 2021 recorded the Applicant having a “stance of denial” (R2/78), the Applicant’s evidence at the hearing was that this was his position when he first went to prison, and that it had flowed through to subsequent reports (transcript/29-30). However, approximately two months before this report was produced, in a letter to the Department dated 20 December 2019, the Applicant stated that “while there has been some violence it has not been of the most serious kind”. He also stated that there was “no violence of any kind” with respect to the Cancellation Offences (G8/59).
In a subsequent letter to the Department dated 19 December 2021, the Applicant stated, “I humbly and apologetically acknowledge that I committed all the following charges and I plead guilty to all those charges in court” (G9/62). That statement was untrue because the Applicant pled not guilty. It was this letter that also contained the false statement that the Applicant was enrolled in a drug and alcohol program. The Applicant claimed at the hearing that someone else at the detention centre wrote the letters for him, and that he did not fully understand what was said in the letters (transcript/28). However, when he was asked earlier in the hearing, he agreed that the content of the letters was true and correct (transcript/14).
Further, in his evidence at the hearing the Applicant accepted that he was guilty, however, he continued to minimise his involvement in the Cancellation Offences. In the following excerpt from the hearing transcript the Applicant was asked by the Respondent’s representative about the Cancellation Offences and said that he did not know what was happening and was simply accompanying his co-offender (transcript/21):
COUNSEL:I want to talk to you about your offences, or in particular what happened in 2014. So can you tell me about the 2014 incident which led to your convictions for aggravated burglary and assault occasioning bodily harm?
APPLICANT: I went to a party. I’m pretty sure I had an argument with a girlfriend about - about her phones. So I ended up going to a party - I think it was a friend’s sister’s birthday. And things got out of hand - that and alcohol, smoking - smoking cones. And then the pipe was going around, and yes just took off from there. All sorts happened after that.
COUNSEL: What do you mean by, “all sorts happened”?
APPLICANT: Well, it’s such a long time ago. Me and my mates he say to me, “We can go do some more”. Even some more that or some pot. Because we were running of pot. I’m really more into the pot really than the meth. Because pot calms me down. But he told me he knows a place where we can go and get some. So I just went along with him. I thought he knew the place, but yes. All I remember is he said, “Here, put this on, this balaclava on, and you go first”. And I went through the door first. I did not know the extent this was going to go to before we go there. I just went along with them, you know. And that’s how that came about.
In the following exchange the Applicant stated that he grabbed the victim because the victim came towards him, that he was surprised when his co-offender produced the iron bar, and that he left as soon as the co-offender hit the victim. His evidence was (transcript/21-22):
I went first. He [the co-offender] was still standing outside. I went in first. The victim, [name omitted], came towards me, and I just went to grab him. And then before I knew it the other bloke came in, has pulled this – well … I thought it was a lump of wood but it turned out to be a bar, he pulled that from under a jersey and just started - started hitting the bloke over the head. It all happened so quick I just let go and I took off out the door. I didn’t know it was going to escalate like that. I left straight away and then he was right behind me, after me. So, I left him in there first. I just let go and I took off out the door and he followed through after me, yes.
I found the Applicant’s recollection of events difficult to believe. It is difficult to believe that he was not aware of what was about to happen, particularly when donning a balaclava before entering an unknown person’s house. It is also difficult to believe that he did not know that his co-offender was carrying a metal bar until his co-offender produced it in the victim’s home.
Further, the Applicant’s evidence was at odds with the findings of the sentencing Judge that his “actions were deliberate and premeditated” (G4/34). The following exchange is relevant (transcript/23):
COUNSEL:And you’ve seen the sentencing remarks. The judge found that: “there was a degree of planning involved”. Do you accept that there was?
APPLICANT: There may have been, but not on my behalf.
COUNSEL:Well, you put a balaclava on. You must have known that that wasn’t just walking into someone’s house where you might be expected?
APPLICANT: I did put a balaclava on on the way there, yes. I was given the balaclava, and yes.
COUNSEL: So you knew at that point?
APPLICANT: I knew - I knew at that point, yes. But I didn’t know what extent it was going to be taken to.
COUNSEL:It’s said that you were the person who grabbed [the victim] by the wrists?
APPLICANT: That was me, yes.
COUNSEL: But it was co-offender who hit him with the metal bar?
APPLICANT: That’s right.
COUNSEL: And he was struck several times. Did you strike him at all?
APPLICANT: I didn’t strike him. I was holding [the victim]. The other bloke came and start hitting him. I let go. I left straight out the door.
COUNSEL: You didn’t try to stop him from being hit?
APPLICANT: He came out after me. That’s how it happened so fast.
COUNSEL: Who came out after you?
APPLICANT: The co-offender. I was just shocked mostly on what he was doing. I didn’t know that it was going to go to that extent. I didn’t have time to stop him. I just left and he came out straight after me - afterwards - that’s when I went off with him. I said, “What the hell were you doing?” You know, what - yes.
The findings of the sentencing Judge are to be preferred. The finding that the Applicant’s offending was deliberate and premeditated was an element of the aggravated burglary offence. This is indicated by the word “intent” in the title of the aggravated burglary offence. The offending being deliberate and premeditated were also aggravating factors that were considered by the sentencing Judge in determining the sentence to be imposed. I find that I cannot go behind those findings (HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202). The inconsistency between the sentencing Judge’s findings and the Applicant’s version of events also supports a finding that the Applicant was less than fulsome in his evidence about his offending to minimise its seriousness.
There was no expression of remorse in the Applicant’s letter to the Department dated 20 December 2019 (G8/59-60). His apology and reference to being ashamed in his letter of 19 December 2021, and his expression of “deep remorse and considerable insight and commitment to changing my life” in another letter dated 16 December 2021 (G10/65) are diminished by the vague and general references to the offending, and the absence of any appreciation for the injuries suffered by the victim. Although at the hearing the Applicant admitted to being guilty because he was present during the offending, his minimising of his involvement suggests that he continues to lack insight into his offending. Expressing remorse can be indicative that an applicant accepts responsibility for his or her offending (JFSQ and Minister for Home Affairs [2019] AATA 616 at [65] cited in Subasinghe and Minister for Home Affairs [2019] AATA 751), which may in turn be a factor that lowers the likelihood of reoffending. I find that the Applicant’s remorse is less than fulsome, and his lack of insight raises concerns about his likelihood of reoffending if he is released into the Australian community.
In summary, there are some factors that weigh in favour of the Applicant, such as his short criminal history, the gaps in his offending, the lengthy period of abstinence from drugs whilst he has been in prison and detention, his voluntary completion of an anger management course, support from friends and family in the community and his ability to find employment.
However, there are more factors that weigh against the Applicant because they suggest there is a likelihood of the Applicant committing further general or violent offences. These factors include his:
·less than fulsome remorse and attempts to minimise his involvement in the Cancellation Offences;
·having a significant methamphetamine addiction and being under the influence of methamphetamine when he committed the Cancellation Offences;
·failure to complete relevant rehabilitation for his methamphetamine addiction such as treatment or counselling in prison and immigration detention;
·being assessed as a high risk of general offending by prison treatment assessors, and his refusal to participate in the medium intensity program due to his position of denial;
·being assessed as being a risk of violent offending, albeit a low risk;
·parole period having expired which means that he will not be able to benefit from a period of supervision under conditions to assist him with his rehabilitation and reintegration into the Australian community; and
·lack of any enrolment or contact with counsellors or rehabilitation providers, nor any clear plan about how he will abstain from substance abuse if he is released into the community, and my reservations as to whether he intends to engage in any counselling or rehabilitation.
My assessment, based on the evidence before me, is that the Applicant remains a moderate risk of reoffending in a general or violent manner.
Given the gravity of the Cancellation Offences and the serious harm that can be caused to members of the Australian community if those offences, or like offences were to be repeated, I find that even a low risk of reoffending by the Applicant would be unacceptable (in accordance with para 5.2(5) of Direction No 90).
I therefore find that para 8.1.2 of Direction No 90, being risk to the Australian community should the Applicant commit further offences, weighs strongly against the revocation of the Cancellation Decision.
Summary on para 8.1 of Direction No 90
I have found that para 8.1.1 and para 8.1.2 of Direction No 90 both weighed strongly against revocation of the Cancellation Decision. Therefore, overall, I find that primary consideration 8.1, being the protection of the Australian community, weighs strongly against the revocation of the Cancellation Decision.
Family violence committed by the non-citizen (paras 8(2) and 8.2 of Direction No 90)
Paragraph 8.2 of Direction No 90 requires decision-makers to have regard to family violence committed by the non-citizen.
The Applicant has not been convicted of any offences involving family violence, nor is there any evidence of family violence related conduct. Consequently, this primary consideration is not relevant to this application.
The best interests of minor children in Australia affected by the decision (paras 8(3) and 8.3 of Direction No 90)
Paragraph 8(3) of Direction No 90 states that in making a decision under s 501CA(4), “the best interests of minor children in Australia” is a primary consideration. Further, para 8.3(1) of Direction No 90 states that decision-makers must determine whether the decision under review is, or is not, in the interests of a child affected by the decision.
On the evidence there do not appear to be any minor children whose interests would be affected by this decision, and consequently this primary consideration is also not relevant.
Expectations of the Australian community (paras 8(4) and 8.4 of Direction No 90)
A decision-maker must consider the expectations of the Australian community when making a decision under ss 501 or 501CA.
These expectations are set out in para 8.4 of Direction No 90, which provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2)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 community 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 conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)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' include 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;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)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
(f)worker exploitation.
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)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.
Thus, I must give effect to the “norm” stipulated in para 8.4(1) of Direction No 90, being that the Australian community expects non-citizens to obey Australian laws whilst in Australia.
As is evident from the reference to the “norm” in para 8.4(1) of Direction No 90, I am being told unequivocally what the community’s expectations are. Further, para 8.4(4) of Direction No 90 confirms more explicitly that the Australian community’s expectations are what the Government deems them to be, because decision-makers are directed to proceed based on the Government’s views about community expectations without independently assessing them.
In this regard, I agree with the observations of Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143, which were adopted by Deputy President Boyle in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208 (Wightman). In Wightman, Deputy President Boyle stated, at [85]–[86]:
… Direction 90 superseded Direction 79 on 15 April 2021. Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (NTTH) at [194] noted that the provisions of Direction 90 contain generally similar wording to the corresponding provisions in Ministerial Direction No 65 (Direction 65), the predecessor to Direction 79. Those corresponding provisions in Direction 65 were considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (FYBR).
Senior Member Morris at [195] and [196] of NTTH summarises the view expressed by the Full Court in FYBR and the adoption of some of the language of the judgment in FYBR into Direction 90 as follows:
195.It was the Court’s view that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not what a decision-maker may derive by some other assessment or process of evaluation.
196.It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR. ...
(Original emphasis and footnotes omitted.)
Further detail about the Australian community’s expectations with respect to certain types of conduct, is given in para 8.4(2) of Direction No 90. That paragraph states that the Australian community expects that the Australian government should cancel a non-citizen’s visa if they raise serious character concerns, including through specific conduct listed in sub-paras 8.4(2)(a)–(f). The types of specific conduct listed include the commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled. As I noted above, on two occasions when sentencing the Applicant for the Cancellation Offences, the sentencing Judge referred to the victim as being “vulnerable” (G4/33; 35), and I accept that assessment. I also found that the offending was violent and serious. Therefore, as this type of offending raises serious character concerns, the Australian community would expect the Applicant’s Visa to remain cancelled.
Paragraph 8.4(3) of Direction No 90 further confirms that the Australian community’s expectations are what the Government deems them to be, by effectively telling decision-makers that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
As I found above, the Cancellation Offences of “aggravated burglary with intent in dwelling” and “assault occasioning bodily harm” committed by the Applicant on 29 May 2014 were serious violent offences involving the Applicant and a co-offender entering the victim’s home wearing balaclavas and striking him with a metal bar, resulting in the victim suffering serious injuries. I therefore find that the Applicant has engaged in serious conduct in breach of this expectation, and that the Australian community would expect that the Applicant should not be permitted to remain in Australia. Consequently, the expectation of the Australian community would be that the Applicant’s Visa should remain cancelled (para 8.4(1) of Direction No 90).
Given the serious and violent nature of the Cancellation Offences, particularly the “assault occasioning bodily harm” offence against a vulnerable victim, I find that para 8.4 of Direction No 90, being the expectations of the Australian community, weighs strongly against the revocation of the Cancellation Decision.
Other considerations (para 9(1) of Direction No 90)
Paragraph 9(1) of Direction No 90 provides:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests
International non-refoulement obligations (paras 9(1)(a) and 9.1 of Direction No 90)
I am required to consider whether Australia’s international non-refoulement obligations arise on any of the submissions, material or evidence before me (para 9.1 of Direction No 90).
At the hearing, the Applicant gave evidence that he had kept in touch with other persons he met in immigration detention who have been deported to New Zealand. Based on conversations with those persons, he claimed that two persons he knew had been “attacked just recently because they’re 501s” or because they were staying in hotels known to accommodate other persons who may have been deported. He further stated that he knew of other persons who had been deported who had been “attacked because they’ve got Australian accents”. He stated that New Zealand officials had been telling these people, “Don’t go around telling people that you’re 501; you’re a trouble maker” (transcript/32-33).
I give no weight to this evidence. It is not logically probative because it is based upon unsubstantiated hearsay evidence from conversations the Applicant has had with persons who have been returned to New Zealand. Consequently, these claims cannot be said to have a “serious and substantive basis in fact and law” (Mortimer J in Omar v Minister for Home Affairs [2019] FCA 279 at [82]); nor are they “clearly articulated and substantial or significant” (Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166 at [15]).
Consequently, I do not regard this other consideration to be relevant.
Extent of impediments if removed (paras 9(1)(b) and 9.2 of Direction No 90)
Paragraph 9.2(1) of Direction No 90 provides:
(1)Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen’s age and health;
b)whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
The Applicant is 50 years of age. His evidence was that he has had type 2 diabetes since he has been in prison, which he takes medication for. His evidence was that his diabetes does not affect him (transcript/37). The Applicant also has some difficulties with his hearing, with Department of Corrective Services progress notes dated 11 August 2021 recording “bilat[eral] deafness” (R2/10). An earlier medical record dated 6 September 2016 states, “[d]eaf since childhood able to converse by lipreading and picking up some words” (R2/68). The Applicant was assisted at the hearing of this application by a hearing loop. He is otherwise in good physical health.
New Zealand is broadly comparable to Australia and there would not be any language or substantial cultural barriers that would constitute an impediment to the Applicant returning to New Zealand. The Applicant will also have access to the same social, medical and economic supports as other citizens of New Zealand, which are equivalent to those available in Australia (Webb v Minister for Home Affairs [2020] FCA 831 at [98]; Uelese v Minister for Immigration and Border Protection [2016] FCA 348 at [68]-[69]).
To the extent that the concerns raised by the Applicant about being targeted as a “501” if he is returned to New Zealand might be regarded as impediments if removed, I found above under the consideration of international non-refoulement obligations, that there is no evidence of a sufficiently logically probative nature to substantiate these concerns.
The Applicant is also aware of, and is likely to seek help from, an organization named PARS (People at Risk Solutions) who assist people who are removed from Australia when they arrive in New Zealand (transcript/32). The Respondent cited Deputy President Dr Kendall (as he then was) in CFVG and Minister for Immigration and Border Protection [2017] AATA 1395, [90] who stated:
The Tribunal also notes the considerable efforts of organisations like PARS to assist deportees from Australia to New Zealand. This is a significant social undertaking and its benefits to men like CFVG should not be underestimated ...
The Applicant has also maintained contact with other persons he met in immigration detention who have been deported to New Zealand and have kept him informed about “what the process is when you get off the plane in New Zealand”. The Applicant further stated that, “I only keep in touch with them because I want to know how they’re going and what the process is and what I’m going to be looking at if I get deported” (transcript/32). These persons do not appear to be close friends, but they may be able to offer some limited social support to the Applicant if he is returned to New Zealand.
Although the Applicant disagreed at the hearing, I find that New Zealand is not an unfamiliar country for the Applicant (transcript/18). He completed his schooling in New Zealand and lived there until he was 17 years of age when he came to Australia with his former partner. Since his arrival in Australia, he has visited New Zealand four times. These visits were for his 21st birthday, his father’s 60th birthday, and for his mother and father’s funerals.
The Applicant did not work in New Zealand before coming to Australia. In Australia he has worked in the mining industry including as a cleaner and an ore handler. He has also worked as a tow truck driver, a truck driver for freight companies and has undertaken venue security work (G7/55; transcript/19). These would be transferable skills if the Applicant was returned to New Zealand and may help him to find employment there.
The Applicant has two brothers and three sisters in New Zealand. His evidence at the hearing was that he occasionally speaks with his eldest sister but stated that he was not close to his family members there. He appeared reluctant when asked if he would contact his family members in New Zealand if returned there. He also gave evidence about there being “family land” in New Zealand, however there is no evidence before me as to any entitlement he may have to that land or any interest in it. In his evidence he also spoke of having cousins in New Zealand who knew he was in prison and who were “not too keen on having me back” (transcript/15-16).
There is some conflicting evidence before me which suggests that the Applicant may be downplaying his relationship with his family members in New Zealand. For example, a prison offender note from 19 June 2019 states that when the Applicant was advised that the Prisoners’ Review Board had agreed to deny his parole at his request, he “stated that he is pleased to hear this, as he will be deported (New Zealand) once he is Paroled or serves his full time ERD [earliest release date]” (R2/82). Further, a prison classification review performed on 18 February 2021 states that the Applicant “advised that he would not be appealing any decision to return him to New Zealand, as all of his family reside there” (R2/72), and later that he “is looking forward to being reunited with his family in New Zealand” (R2/74).
The Applicant’s evidence was that he had a falling out with his family members in New Zealand in approximately 2019 because his brother passed away in 2018 and he was unable to attend the funeral due to being incarcerated. The Applicant also stated in his evidence that he thought that this information from his 2019 notes had been used in subsequent reports or that the report writers were lying (transcript/35-36). There is no apparent reason for the report writers to lie in the contemporaneous records. However, it is plausible that the Applicant fell out of favour with his family in New Zealand, that he changed his mind about looking forward to seeing them in approximately 2019 and that the information about his looking forward to seeing them was transferred into the 2021 classification review from earlier reports or notes. I therefore accept that the Applicant is not close to his family members in New Zealand and that the support they could provide him with if he is returned there may be limited.
The evidence before me, including the evidence of the Applicant (transcript/37-38), his former partner YB, who he remains close friends with (A2), and sister, JC (A3), indicates that the Applicant is close to them, and to his other family members on the Gold Coast, including his brother, HG (A4). Thus, he may experience some emotional hardship if he is returned to New Zealand, because the Applicant, YB, JC and HG are all hopeful that the Applicant will be able to stay in Australia and move to the Gold Coast so they can provide him with support.
The Applicant is likely to experience some hardship in the form of transitional difficulties establishing himself in New Zealand and maintaining basic living standards, as well as emotional hardship if he is separated from family and friends in Australia. However, these impediments are not insurmountable and are likely to be temporary. I find that this consideration weighs slightly in favour of revocation of the Cancellation Decision.
Impact on victims (paras 9(1)(c) and 9.3 of Direction No 90)
Paragraph 9.3(1) of Direction No 90 provides that:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no information before me regarding the effect of a decision to revoke or not to revoke the Cancellation Decision on the Australian community (other than as discussed above under the protection of the Australian community and the expectations of the Australian community primary considerations), any victims of the Applicant’s offending (including the victim of the Applicant’s Cancellation Offences), or any family members of the victim.
Consequently, this consideration is not relevant.
Links to the Australian community (paras 9(1)(d) and 9.4 of Direction No 90)
Paragraph 9.4 of Direction No 90 provides:
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 to 9.4.2 below.
This requires consideration of the strength, nature and duration of an applicant’s ties to Australia and the impact of non-revocation of a cancellation decision on Australian business interests.
Strength, nature and duration of ties to Australia
Paragraph 9.4.1(1) of Direction No 90 provides that:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Further, para 9.4.1(2) of Direction No 90 provides that:
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
As I have mentioned above, the Applicant came to Australia as a 17-year-old in 1988 and has therefore resided in Australia for the last 33 years, being his whole adult life.
He did not start offending soon after arriving in Australia, with his first driving/ traffic offence being in 1998, and his first criminal offence being in November 2011. Consequently, his length of time in Australia is not diminished by this factor. He has made some contributions through employment. A letter from AB, a former colleague, states that the Applicant “has helped with volunteering his time to help his community run outdoor venues with security and safety management” (A5), but there is no other evidence of any community work including from the Applicant. Therefore, this factor is not sufficient to warrant more weight being given to the length of time the Applicant has resided in Australia.
The Applicant has lived in Western Australia since he came to Australia in 1988. He stated that he does not have any family in Western Australia but said that he has friends and a cousin there (transcript/17). I note a reference letter from a close friend of several years, AP, who lives in Western Australia and who is very supportive of his being able to remain in Australia (A1). There is also the reference letter in support of the Applicant from AB, who is in Western Australia (A5). These friends are indicative of some ties to the Australian community.
The Applicant also has family members on the Gold Coast including his brother HG, his sister JC, an adult niece and his friend and former partner, YB, who he came to Australia with. The Applicant’s evidence was that he is close with his family members in Australia, but not with his family members in New Zealand. Further, if the Applicant is permitted to stay in Australia, his evidence was that he wanted to relocate to the Gold Coast to be near his family there. He also has an adult nephew in Brisbane (transcript/9-10; 17). As I have outlined above under the first primary consideration, his brother HG and sister JC have offered to support the Applicant if he is able to remain in Australia, as has YB. The support offered by HG, JC and YB are indicative of the Applicant’s ties to the Australian community.
YB gave evidence that she would be emotionally impacted if the Applicant was returned to New Zealand. At the hearing, she stated (transcript/43):
Emotionally I’ll be quite upset. I’ve known him for quite a while, we’ve known each other since teenagers, so I was a quite a significant part of his life as well as him to me and my children. I have four boys to another relationship where my children know [the Applicant] very well, pretty much all look up to him as an older brother. So, yes, it will have a massive impact on us.
YB also stated that her adult children were also close to the Applicant and that they would be impacted if he was returned to New Zealand (transcript/43):
… my children have a distant relationship with their own father where they know [the Applicant] and they actually do reach out to him at times. I mean me I was a single parent for quite a while, so to have a male figure for them to reach out was quite handy, so the relationship there is quite close knit, yes.
His sister, JC, also stated that she would suffer emotionally if the Applicant was required to return to New Zealand (transcript/54):
… I’ll be very upset for him because I understand how devastating it would be for him to have to go back, you know. I would obviously do what I can to, you know, make sure that he’s okay and that he’s, you know, mentally in particular because he’s going through quite a traumatic time obviously. But, yes, I would be really quite devastated if he was to go knowing that he would love to stay.
The Applicant has resided in a separate state from YB and his family members on the Gold Coast for most of the time he has lived in Australia. I find that the detriment that YB and JC (and most likely his other family members in Queensland and YB’s adult children) would suffer if the Applicant was returned to New Zealand is of an emotional kind. That is, they are likely to be disappointed for the Applicant because he wants to remain in Australia and will not be able to move to the Gold Coast to be near them, as well as being concerned about how he will adapt to life in New Zealand. However, they would not suffer detriment to the same extent as if they were relying on the Applicant for financial or other support.
The Applicant has close ties to his friend YB, and his family on the Gold Coast particularly JC and HG. Nevertheless, there is likely to be a minimal impact on the Applicant’s family and friends in Australia if he is returned to New Zealand, with any impact being of an emotional nature. Nevertheless, the Applicant has resided in Australia for all his adult life, being a period of 33 years.
Therefore, I find that para 9.4.1 of Direction No 90, being the strength, nature and duration of the Applicant’s ties to Australia, weighs moderately to strongly in favour of the revocation of the Cancellation Decision.
Impact on Australian business interests
Paragraph 9.4.2(3) of Direction No 90 provides that:
(3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
This consideration does not arise on the material before me and is therefore not relevant.
THE WEIGHING EXERCISE
The Applicant does not pass the character test under s 501 of the Migration Act.
I have therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No 90.
For the reasons set out above, I made the following findings about the following relevant primary considerations in Direction No 90:
(a)the protection of the Australian community primary consideration weighed strongly against the revocation of the Cancellation Decision; and
(b)the expectations of the Australian community also weighed strongly against the revocation of the Cancellation Decision.
I made the following findings with respect to the other considerations that were relevant:
(a)the extent of impediments if removed weighed slightly in favour of the revocation of the Cancellation Decision; and
(b)the Applicant’s links to the Australian community (specifically, his strength, nature and duration of ties to Australia) weighed moderately to strongly in favour of the revocation of the Cancellation Decision.
I find that the two primary considerations (the protection of the Australian community and the expectations of the Australian community) which weigh strongly against the revocation of the Cancellation Decision, significantly outweigh the other considerations that weigh in the Applicant’s favour. Although the Applicant’s links to the Australian community weigh moderately to strongly, and the extent of impediments if removed weighs slightly in favour of revocation of the Cancellation Decision, they do not outweigh the primary considerations that weigh in favour of revocation.
In other words, the considerations that weigh in favour of the Applicant are not reasons that carry sufficient weight or significance to the extent that I can be reasonably satisfied that the Cancellation Decision should be revoked (Viane). I am therefore not satisfied that there is another reason to revoke the Cancellation Decision.
Consequently, the correct or preferable decision is to affirm the Reviewable Decision.
DECISION
The Reviewable Decision is affirmed.
I certify that the preceding 150 (one hundred and fifty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner
.............[Sgd]........................................................
Associate
Dated: 29 June 2022
Date of hearing: 9 June 2022 Representative for the Applicant: Self-represented Representative for the Respondent: Mr A Gerrard, The Australian Government Solicitor
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