GCRM and Minister for Home Affairs (Migration)
[2019] AATA 1394
•24 June 2019
GCRM and Minister for Home Affairs (Migration) [2019] AATA 1394 (24 June 2019)
Division:GENERAL DIVISION
File Number(s):2019/1822
Re:GCRM
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member B J Illingworth
Date:24 June 2019
Place:Brisbane
The decision under review is affirmed.
.............[Sgnd]............................................
Senior Member B J Illingworth
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018
REASONS FOR DECISION
Senior Member B J Illingworth
24 June 2019
INTRODUCTION
This matter relates to an application for review filed by GCRM (“the Applicant”) on 3 April 2019. The decision the Applicant seeks to have reviewed is the decision of a delegate of the Minister for Home Affairs (“the Respondent”) dated 1 April 2019 not to revoke the mandatory cancellation of his visa.
At the hearing before me, the Applicant appeared via video-link from an immigration detention centre and was unrepresented. The Respondent was represented by Mr Jake Kyranis of Sparke Helmore Lawyers.
BACKGROUND
The Applicant is a 21-year-old citizen of South Sudan, born in February 1998.
The Applicant described a difficult upbringing. He has a sister (“AB”) who is about 9 months younger than him. When AB was about 6 months old, his mother took them both and ran away from their father. His mother took them to the home of an elderly lady and she then abandoned them. The Applicant said he did not know if he was related to the elderly lady, but he described her as a wonderful person who loved and cared for both he and his sister, and brought them up as her own children.
The Applicant’s father gave evidence at the hearing and confirmed the history of the Applicant’s early life in South Sudan. He said that the elderly lady was the Applicant’s maternal grandmother, and that he did not know the whereabouts of his children for a long time. After he came to Australia, and through the assistance of family members, he found the Applicant and AB and sponsored them to come to Australia.
The Applicant arrived in Australia in 2014 at the age of 16 years. On 18 August 2014, the Applicant was granted a Class AH Subclass 101 (Child) visa.
The Applicant’s first offence was committed on 2 March 2016. Between May 2016 and February 2018, the Applicant was sentenced for multiple offences including breaches of bail, suspended imprisonment sentence, and Intensive Supervision Order (“ISO”). The following is a schedule of various relevant offences in chronological order of date of offending:
Item Date of Offence Offence Sentencing Court Date of Sentence Sentence 1 2 March 2016 Attempt enter dwelling with intent Joondalup Magistrates Court 23 May 2016 ISO: 12 months (concurrent with Items 2 and 4) 2 9 March 2016 Burglary and commit offence in dwelling Joondalup Magistrates Court 23 May 2016 ISO: 12 months (concurrent with Items 1 and 4) 3 9 March 2016 Stealing Joondalup Magistrates Court 23 May 2016 No penalty 4 22 March 2016 Aggravated burglary and commit offence in dwelling Joondalup Magistrates Court 23 May 2016 ISO: 12 months (concurrent with Items 1 and 2) 5 22 March 2016 Stealing Joondalup Magistrates Court 23 May 2016 No penalty 6 23 March 2016 Assault public officer Joondalup Magistrates Court 23 May 2016 Suspended Imprisonment Order: 6 months 7 23 March 2016 Disorderly behaviour in a police station Joondalup Magistrates Court 23 May 2016 Fine: $200 8 23 March 2016 Fail to comply with request to give police details Joondalup Magistrates Court 23 May 2016 Fine: $200 9 8 April 2016 Stealing Joondalup Magistrates Court 23 May 2016 Fine: $200 10 8 April 2016 Fail to comply with request to give police details Joondalup Magistrates Court 23 May 2016 Fine: $200 11 8 April 2016 Common assault Joondalup Magistrates Court 23 May 2016 Suspended Imprisonment Order: 2 months (cumulative upon sentenced imposed in Item 6) 12 15 April 2016 Breach of Bail (Fail to appear) Joondalup Magistrates Court 23 May 2016 Fine: $200
Forfeit: $1000
13 20 July 2016 Criminal damage or destruction of property Perth Magistrates Court 24 January 2018 Imprisonment: 2 months (concurrent with sentences imposed in Items 14 and 15) 14 28 July 2016 Breach of protective bail conditions Perth Magistrates Court 24 January 2018 Imprisonment: 2 months (concurrent with sentences imposed in Items 13 and 15) 15 12 August 2016 Burglary and commit offence in dwelling Perth Magistrates Court 24 January 2018 Imprisonment: 2 years (concurrent with sentences imposed in Items 13 and 14) 16 15 August 2016 Burglary and commit offence in dwelling Perth Magistrates Court 2 February 2018 Imprisonment: 2 years (concurrent with sentences of imprisonment being served) 17 20 August 2016 Breach of a Suspended Imprisonment Order Perth District Court of Western Australia 12 December 2017 No order/penalty 18 20 August 2016 Re-offend whilst subject to a community order Perth District Court of Western Australia 12 December 2017 No order/penalty 19 20 August 2016 Aggravated robbery – victim 15 year old child Perth District Court of Western Australia 12 December 2017 Imprisonment: 1 year 6 months
20 20 August 2016 Aggravated robbery – victim 22 year old man Perth District Court of Western Australia 12 December 2017 Imprisonment: 6 months (cumulative upon sentence imposed in Item 19)
On 12 December 2017, the Applicant was also sentenced for a number of breach offences outlined below:
Item Nature of Breach Offence for which the Applicant receive the Order Sentencing Court Date of Sentence Sentence 21 Fail to report for supervision on 11 January 2017 - sentenced Breach of ISO imposed for attempt enter dwelling with intent – See Item 1 Perth District Court of Western Australia 12 December 2017 Imprisonment: 6 months (concurrent with sentence imposed on Items 19, 22 – 25) 22 See Item 21 Breach of ISO imposed for aggravated robbery – See Item 4 Perth District Court of Western Australia 12 December 2017 Imprisonment: 6 months (concurrent with sentence imposed on Items 19, 21, 23 – 25) 23 See Item 21 Breach of ISO imposed for burglary - See Item 2 Perth District Court of Western Australia 12 December 2017 Imprisonment: 6 months (concurrent with sentence imposed on Items 19, 21, 22, 24, 25) 24 By a plea of guilty on 12 December 2017 to those offences committed on 20 August 2016 - See Items 19 and 20 Breach of suspended sentence for assault public officer (police cadet) – See Item 6 Perth District Court of Western Australia 12 December 2017 Imprisonment: 6 months (concurrent with sentence imposed on Item 19) 25 See Item 24 Breach of suspended sentence for common assault – See Item 11 Perth District Court of Western Australia 12 December 2017 Imprisonment: 2 months (concurrent with sentence imposed on Item 24)
On 12 December 2017, the Applicant was sentenced to a total period of imprisonment of two years (see Items 17 – 25). The Learned Sentencing Judge also noted the Applicant was, at the time of sentencing, still to be dealt with for other offences for which he was subsequently before the Perth Magistrates Court on 24 January 2018 and 2 February 2018.
On 24 January 2018, the Applicant was before the Perth Magistrates Court and sentenced for three offences (see Items 13 – 15). He was imprisoned for two months on each offence, which sentences were to be served concurrently with each other.
On 2 February 2018, the Applicant appeared before the Perth Magistrates Court for the offence of burglary and commit offence in a dwelling house (see Item 16) for which he was sentenced to imprisonment, to be served concurrently with the other sentences of imprisonment already being served. Although the offence for which he was dealt with on 2 February 2018 was not his last offence in time, it is the offence for which the Applicant was last sentenced and it was this conviction and sentence that was referred to in the mandatory visa cancellation decision.
On 17 August 2018, the Applicant’s visa was mandatorily cancelled (“the Original Decision”) by a Ministerial delegate under s 501(3A) of the Migration Act 1988 (“the Act”) on the grounds that he did not pass the character test because he had a substantial criminal record, having been sentenced to a term of imprisonment of more than 12 months and was at that time serving a sentence of imprisonment on a full-time basis.
The Applicant made representations seeking revocation of the mandatory visa cancellation.
On 1 April 2019, a Ministerial delegate decided that the Minister was not satisfied that the Applicant passed the character test; nor was there another reason why the Original Decision should be revoked. Accordingly, the delegate decided not to revoke the mandatory visa cancellation.
On 3 April 2019, the Applicant lodged with this Tribunal an application for review of the delegate’s decision.
LEGISLATIVE FRAMEWORK
Relevantly, s 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)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.
Pursuant to 501(6)(a) of the Act, a person does not pass the character test if the person has a ‘substantial criminal record’ as defined in s 501(7) of the Act. Section 501(7) of the Act relevantly provides that, for the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
…
Pursuant to s 501CA(4) of the Act, the Minister, or the Tribunal in place of 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.
ISSUES
The principal matter for determination is whether the discretion contained in s 501CA(4) of the Act should be exercised by the Tribunal, such that the mandatory visa cancellation is revoked. Pursuant to s 501CA(4)(a) of the Act, the Applicant made representations in accordance with the Respondent’s invitation. Thus, the two issues to be considered by the Tribunal are:
(a)Pursuant to s 501CA(4)(b)(i) of the Act, whether the Applicant passes the character test; and
(b)Pursuant to s 501CA(4)(b)(ii) of the Act, whether there is another reason why the Original Decision should be revoked.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Applicant does not pass the character test as he has been sentenced to a term of imprisonment of at least 12 months. Consequently, the Tribunal is satisfied that the Applicant does not pass the character test and cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?
In considering whether there is another reason why the Original Decision should be revoked, the Tribunal is bound in accordance with s 499(2A) of the Act to comply with any directions made under the Act. Relevantly, s 499(1) of the Act provides:
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.
In this case, the relevant direction is Ministerial Direction No 79 (“the Direction”) which was issued on 20 December 2018 and applies on and from 28 February 2019. This Direction replaces what was previously Direction No 65.
Ministerial Direction No. 79
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker. They are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 8 of the Direction provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C …
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One of more primary considerations may outweigh other primary considerations.
The Direction further provides guidance for decision-makers on how to exercise the discretion with respect to a mandatory visa cancellation. Relevantly, at paragraph 7(1)(b) of the Direction, it states that a decision-maker must take into account the considerations in Part C in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Paragraph 13(2) in Part C of the Direction provides the three Primary Considerations that the Tribunal must take into account, namely:
(a)Protection of the Australian community from criminal or other serious conduct;
(b) The best interests of minor children in Australia; and
(c) Expectations of the Australian community.
The Other Considerations which must be taken into account where relevant are provided in a non-exhaustive list in paragraph 14(1) of the Direction. These considerations are (but not limited to):
(a) International non-refoulement obligations;
(b) Strength, nature and duration of ties;
(c) Impact on Australian business interests;
(d) Impact on victims; and
(e) Extent of impediments if removed.
The Tribunal will now address these considerations.
Primary Consideration A: Protection of the Australian community
Paragraph 13.1 of the Direction sets out the first of the Primary Considerations the Tribunal should have regard to, and relevantly provides:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2)Decision-makers should also give consideration to:
(a)The nature and the seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Tribunal will address each of the considerations in paragraphs 13.1(2)(a) and 13.1(2)(b) of the Direction.
(1) The nature and seriousness of the Applicant’s conduct to date
Paragraph 13.1.1 of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. It relevantly states:
(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 factors including:
(a)The principle that… violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that 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, are serious;
(d)Subject to subparagraph (b) above, the sentence imposed by the court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is a trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)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);
(i)Where the non-citizen is in Australia, that a crim committed while the non-citizen is in immigration detention … is serious …
The Applicant was an adult when he committed the offending for which he has been sentenced; the earliest offence committed only two years after arriving in Australia and less than a month after his 18th birthday (see Item 1). The Applicant thereafter offended regularly and has accumulated numerous convictions in just under two years.
On 23 May 2016, the Applicant appeared before the Joondalup Magistrates Court charged with a number of offences (see Items 1 – 12), including breach of bail, committed in March and April 2016. In sentencing, the Applicant received the benefit of no penalties, ISOs, suspended imprisonment sentences, and fines. It is noteworthy that two of the offences for which the Applicant was dealt with on 23 May 2016 involved violence. They are summarised in the Detected Incidents Report[1] as follows:
(a)In relation to the first count of violence (see Item 6), police attended an incident. They arrived by police car. Upon arrival, the Applicant was seen running from the scene. The police approached the Applicant whilst still driving in the car. The Applicant ran away and a police cadet got out of the car and gave chase on foot. As the police cadet caught up to the Applicant, the Applicant turned and faced the police cadet with his fists clenched. The Applicant was told to unclench his fists and sit on the ground. The Applicant then picked up a large brick. The Applicant was directed to put down the brick immediately. The Applicant then held the brick in both hands and threw it at the police cadet, narrowly missing him.
(b)In relation to the second count of violence (see Item 11), the Applicant attempted to steal a pair of jeans from a shop and, when approached by a shop attendant, punched the shop attendant twice to the right side of the face.
[1] Exhibit C.
In referring to the violent offending, the Learned Magistrate described the offending as “particularly nasty and serious” and took the view that the only appropriate sentence was one of imprisonment, even though imprisonment is a sentence of last resort.[2]
[2] Exhibit A, G Documents, pages 117 – 122.
The sentences of imprisonment imposed were ordered to be served cumulatively upon each other, but were suspended upon the Applicant entering into a bond for 12 months. He subsequently breached that bond.
On December 2017, in the Perth District Court of Western Australia, the Applicant was dealt with for matters (see Items 17 – 25) which included breach of suspended imprisonment sentence and breach of ISO for having failed to report for supervision on 11 January 2017. The relevant offending (see Items 19 – 20) occurred in August 2016 and breached the suspended imprisonment sentences imposed three months earlier on 23 May 2016.
The Learned Sentencing Judge’s remarks[3] with respect to the two counts of aggravated robbery (see Items 19 and 20) can be summarised as follows:
(a)In the early hours of 20 August 2016, the Applicant and three other juveniles were at Warwick Train Station. They noticed a 15-year-old young man who appeared affected by alcohol. He had a telephone. They approached him and asked for the telephone. The victim began to walk away. The Applicant chased him and took the telephone. The victim continued to run. The Applicant pursued him and then “inflicted gratuitous violence upon him” by punching and kicking him, and stealing his backpack and other property. The victim left, was again chased, and was pushed to the ground, punched and kicked. The acts were described as “disgraceful, thuggish behaviour”.
(b)An hour later, the group, when exiting a train carriage near Joondalup Train Station, saw a 22-year-old man wearing headphones. He was unaware, and had little warning, of the Applicant approaching him. One co-accused snatched the victim’s mobile phone. The Applicant and another asked for the access code. The victim grabbed back the mobile phone and attempted to run. One co-accused tackled him and dragged him to the ground. He was dragged behind a wall; the Applicant kicked him and punched him to the head and body. The victim’s mobile phone and wallet were taken, and the Applicant continued to kick and punch him until observed by a transit security guard. The Applicant fled, but was apprehended moments later.
[3] Ibid, pages 123 – 135.
The Learned Sentencing Judge sentenced the Applicant to a total of two years’ imprisonment, comprised of both cumulative and concurrent sentences (see Items 17 – 25).
The Learned Sentencing Judge had before him a pre-sentence and psychological report which detailed the Applicant’s background history. The psychological report assessed the Applicant, his background, and offending, and said that the Applicant was at risk of reoffending. In sentencing the Applicant,[4] the Learned Sentencing Judge said “You suffer from poor impulse control, negative and antisocial and self-defeating attitudes and behaviour, poor judgement, and a belief that your actions wouldn’t be detected … from the available information you’re assessed as being a moderate to high risk of future violence if you are unable to make and sustain positive change”. He said “Your previous behaviour indicates a persistent defiance and disregard for the law.” He went on to describe the Applicant’s offending as “serious and involved conduct seemingly escalating in seriousness to that which gave rise to the offences for which the sentences were originally imposed, particularly the offences of assaulting a public officer.” In referring to the fact that the Applicant breached the suspended imprisonment sentence and ISOs, he said “Your attitude and conduct reflect the level of contemptuous in the offending so soon after being placed on the order.” He described the Applicant as a young man who poses a risk of re-offending unless he is able to make and sustain positive changes. At the time of sentencing, the Applicant had spent 478 days in custody and had undertaken some programs and courses.
[4] Ibid.
The Applicant said in evidence that, from about 18 years of age, he started abusing alcohol. He said he was drinking approximately one 750ml bottle of Jim Beam each day. He also said that he committed the offences often in the company of younger African youths. He said he related to them because he felt younger than his age and wanted to prove himself to these youths. This, he said, was because he grew up without the influence and support of parents, and because of the atrocities he witnessed in South Sudan.
The Applicant described witnessing atrocities in South Sudan, which included witnessing a man being shot in front of him while he was playing soccer. He said that he and his peers had to run to avoid being shot. He witnessed a man having his arms and legs “chopped”.
The Applicant also said that, in respect of the burglary offences (see Items 15 and 16), he was desperate, not living at home, and either living at friends’ houses or on the street. He also had no money, was not receiving Centrelink payments, and committed the offences in order to feed himself. He also said that he breached the terms of the suspended imprisonment sentence shortly after receiving it because he had no support, no job, had been kicked out of home by his father, was drinking, and was mixing with the younger boys.
In respect of the offence of assault public officer (see Item 6), the Applicant, in evidence, tried to minimise his culpability for his offending. He said that he and other boys had been on a bus and subsequently those boys ran off, leaving him alone when uniformed police officers, including a police cadet, in a marked car approached him. A brick was next to him. He picked it up and threw it on the ground using both hands; not at or close to the police cadet. The summary of offence[5] which read very differently was put to the Applicant. In summary, police were called to an incident. They attended in uniform. The Applicant was running away from the scene. The police cadet got out of the vehicle and gave chase. When he caught up with the Applicant, the Applicant turned and faced the police cadet with clenched fists. He was instructed to unclench his fists and sit down. The Applicant reached down and picked up a large brick. He was told to drop the brick immediately. The Applicant threw the brick using both hands at the police cadet who turned to avoid being hit by the brick. The brick missed the police cadet by about a metre. When confronted by that summary, the Applicant provided no satisfactory explanation for the inconsistency in his description and that of the summary of offence. The Tribunal does not accept the Applicant’s version of events in relation to that offending.
[5] Exhibit C.
The Applicant also sought to minimise his conduct with respect to the two aggravated robbery offences (see Items 19 and 20). In relation to the first offence involving the 15-year-old boy, he said he did not kick him. He was referred to the sentencing remarks[6] and then denied he punched the victim. He admitted he took the victim’s bag. The Applicant agreed he was legally represented when he was sentenced for the offending. He said he told his lawyer he did not punch or kick the victim, but that his lawyer said he should take the easy way and plead guilty. He would then get a sentence of 12 months. The Tribunal notes in the sentencing remarks that the Applicant was said to deny punching the victim, saying he only kicked him.[7]
[6] Exhibit A, G Documents, page 125.
[7] Ibid, page 126.
The Tribunal rejects the Applicant’s explanation insofar as it is inconsistent with the sentencing remarks and the basis upon which he was sentenced.
In respect to the second offence involving the 22-year-old man, the Applicant denied that he dragged the victim to the ground or behind a wall. He admitted that he and the victim struggled. He said that his sentence was unfair and that the other boys were the ones who caught him. The offence summary was put to the Applicant. He did not immediately respond, but then agreed he kicked the victim and said “I think I punched him to the head and body”. He said he was very drunk at the time. The Tribunal rejects the Applicant’s evidence insofar as it is inconsistent with the sentencing remarks.
The Respondent submits that the Applicant’s violent offending must be viewed seriously. The fact that the Applicant has been sentenced to periods of imprisonment, a sentencing option of last resort, is also indicative of the seriousness of his offending.
His numerous breaches of bail further demonstrate a lack of respect for the law and law enforcement officers.
(2) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 13.1.2 of the Direction provides factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. It relevantly states:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The Applicant expressed his remorse and contrition for his offending. He said he is convinced he will live a positive life in the future and be alcohol free. He attends compulsory meetings with his case manager and other clinicians in regard to the management of his emotions and how to talk about them with others. He has attended Alcoholics Anonymous. The Tribunal also received a number of Statements of Attainment for various courses that the Applicant has completed.[8]
[8] Exhibit E.
The Applicant says he now has more empathy for others. He has undertaken bible studies and has found God. A letter from Pastor RO, prison chaplain, was before the Tribunal.[9] The courses he has undertaken have helped him understand himself and improved his self-awareness. He has learnt about healthy eating, studied mathematics, attends personal wellbeing studies, and has learnt to participate in and help communities. He says that he has studied personal development which has enabled him to grow mentally and physically.
[9] Ibid, page 173.
The Applicant said that, if released, he will not reoffend. He has had a lifelong interest in soccer and previously coached his younger brother’s soccer team. He would like to do so again. He has matured and no longer has the desire to keep the company of younger youths. He believes he has the capacity to be a great leader and has a career path planned. He would like to return to studies and go to university. He would like to be a police officer or possibly study medicine or a course related to medicine.
The Respondent submits that the nature of the offending was very serious. The offence of aggravated robbery was against a child (see Item 19). The Applicant sought to downplay his conduct and was evasive.
The Respondent submits that the Applicant represents a real and substantial risk of reoffending, which risk includes physical, psychological and financial harm to potential victims should he reoffend in a same or similar fashion, and particularly if he resumes alcohol consumption.
The Respondent referred to the sentencing remarks to which was referred to earlier in this decision, together with the psychological report to which the Learned Sentencing Judge referred. The Respondent submitted that the Applicant was a serious repeat offender, accumulating over 20 convictions in two years. It was submitted that his alcohol consumption of one 750ml bottle of Jim Beam a day is disturbing and that there was an absence of corroborate evidence about him undertaking any alcohol rehabilitation whilst in custody.
Conclusion: Primary Consideration A
It is to the Applicant’s credit that he has undertaken a number of programs of study whilst in custody. However, due to his incarceration, the Tribunal cannot assess whether the Applicant has made any genuine and lasting improvement in his personality, demeanour, engagement in the community, or abstinence from alcohol consumption, such that the Tribunal can accept that he does not remain at risk of reoffending.
The Applicant’s offending was serious. His attempts to downplay the seriousness of his offences of aggravated robbery and assault public officer raise serious concern about whether the Applicant has truly taken full responsibility for his appalling conduct. It also demonstrates a lack of contrition and remorse and an inability to recognise the impact his offending, particularly his offences of violence, has had on his victims.
In respect of the offence committed against the 15-year-old child, the Learned Sentencing Judge rightly described the conduct as “disgraceful, thuggish behaviour”. His Honour described the offence referred to the offence against the 22-year-old man as “… the most frightening thing that any passenger could encounter” and then said that it was “gratuitous violence”.
The Applicant repeatedly breached court imposed bonds. The Tribunal notes the two offences of aggravated robbery were committed approximately three months after the Applicant was placed on a suspended imprisonment sentence and ISOs. His offending demonstrates a disregard for the laws of Australia and contempt for court orders that granted him the opportunity to demonstrate that he was motivated to rehabilitate and contribute to the Australian community. The assault against the police cadet further demonstrates his lack of respect for police. His offending, including the offending that gave rise to the mandatory cancellation of his visa, must be regarded as serious.
The Applicant’s offending was frequent and of an increasing level of seriousness, culminating in the two counts of aggravated robbery committed on 20 August 2016. The victims of both offences were attacked by a group of youths and the adult Applicant. Both victims were vulnerable to the appalling behaviour of the Applicant and his co-offenders. The offence against the 15-year-old child must be viewed as very serious. The Tribunal notes that the 22-year-old man was also vulnerable in that he was wearing headphones and was unaware of the approach of the Applicant and his co-offenders. He was dragged behind a wall and continually beaten, which violence stopped only when a transit security guard intervened.
The Tribunal notes that the offence referred to in the Notice of Mandatory Cancellation was not the last committed in time, but was the last offence for which the Applicant was sentenced (see Item 16). All of his offences demonstrate the continuing trend of repeated serious offending in 2016. The Tribunal also notes that the Applicant was ordered to serve more than one sentence of imprisonment of 12 months, either of which may have enlivened the mandatory cancellation of his visa.
The Tribunal finds that Australians would have a low tolerance for the Applicant’s offending. Albeit the Applicant had only recently turned 18 at the time of offending, it escalated in seriousness and culminated in offences of a violent and appalling nature such that he is not a person to whom the Australian community would expect should continue to hold a visa.
The Tribunal agrees with the submission of the Respondent that the Applicant represents an unacceptable risk of reoffending. There is no evidence to suggest that he has made any substantial contribution to the Australian community. He started offending soon after his arrival in Australia in 2014. For a substantial part of that time he has been in custody. The Respondent referred to the comments of the Learned Sentencing Judge, to which the Tribunal referred to earlier, which also reflect the Respondent’s submission about the risk of reoffending.
The Tribunal finds that Primary Consideration A weighs heavily in favour of non-revocation of the Applicant’s visa cancellation.
Primary Consideration B: The best interests of minor children in Australia
Paragraph 13.2 of the Direction sets out the next Primary Consideration the Tribunal should have regard to and relevantly provides:
(1)Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has three minor siblings born to his father and step-mother in Australia, namely TB born in 2004, LB born in 2007, and AB born in 2010. The Tribunal has regarded the interest of each child separately.
The Applicant has provided a number of letters, notes and drawings from his siblings which clearly show that they miss and love him. The Applicant says that he wants to be part of their lives in the future and, by improving himself, he wants to contribute both financially and as a role model to each.
The Respondent submits that this consideration is of neutral weight as the relationship between the Applicant and his siblings is non-parental, there is no evidence that he has provided any personal or financial support to his siblings and, for a significant period of time, the Applicant has been in custody. It is submitted that there is no evidence upon which the Tribunal can rely to suggest that the Applicant will play a positive or significant role in their future upbringing.
There is no evidence that the Applicant will be impeded in maintaining contact with his siblings in the future should he return to South Sudan.
Conclusion: Primary Consideration B
The Tribunal accepts that the Applicant’s siblings love him and will miss him should he return to South Sudan. However, having regard to the whole of the evidence, the Tribunal finds that Primary Consideration B is of neutral weight in respect of the revocation of the Applicant’s visa cancellation.
Primary Consideration C: Expectations of the Australian Community
Paragraph 13.3 of the Direction sets out the third of the Primary Considerations the Tribunal should have regard to and relevantly provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
Further, paragraph 6.3(5) of the Direction provides:
Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community for only a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
The factors relevant to this Primary Consideration are linked to and summarised in Primary Consideration A.
Conclusion: Primary Consideration C
The Australian community expects the Applicant to obey the laws of Australia. The Applicant has failed to do so repeatedly, having demonstrated contempt for court orders, a disregard for authority, particularly police, and a propensity to violent and dishonest offending, which has included an offence of violence against a child.
There is an unacceptable risk that the Applicant will reoffend. As mentioned earlier, the Australian community would not expect that the Applicant should continue to hold a visa. He has made little or no contribution to the Australian community and has done nothing to demonstrate that he is entitled to a higher level of tolerance.
The Tribunal finds that Primary Consideration C weighs heavily in favour of non-revocation of the Applicant’s visa cancellation.
The Other Considerations
In deciding whether to revoke the mandatory cancellation of a visa, Other Considerations must be taken into account where relevant. These considerations, as set out in paragraph 14(1) of the Direction, include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
The Tribunal will address these elements, where relevant, in turn.
Other Consideration 1: International non-refoulement obligations
Paragraph 14.1 of the Direction provides a list of factors to be considered in determining international non-refoulement obligations. Those factors comprise:
(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia's interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2)The existence of a non-refoulement obligation does not preclude nonrevocation of the mandatory cancellation of a non-citizen's visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
(3)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
(4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
(5)If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer).
(6)In these circumstances, decision-makers should seek an assessment of Australia's international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person's Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
The Applicant says he is a citizen of a country that is facing post-civil war instability and that there are still clashes between Government forces and the National Salvation Front. However, there is no independent evidence of that fact before the Tribunal.
The Applicant is able to make an application for a Protection visa, at which time any claim of international non-refoulement obligations can be properly raised, tested and assessed.
When asked in evidence about his fear and concern should he return to South Sudan, the Applicant said “I have nobody”. He said he has been there during the war; people were killed. However, he did not identify any current basis upon which this Other Consideration is enlivened.
He said his country is destroyed. He last spoke to the elderly lady who raised him in 2014 and she has subsequently died. He said that everyone in his village has left and gone to another country. He said only dogs live there.
Conclusion: Other Consideration 1
The Tribunal accepts that the Applicant genuinely does not want to return to South Sudan, but that does not enliven the consideration of Australia’s non-refoulement obligations. There was no evidence before the Tribunal relevant to this Other Consideration.
The Tribunal therefore finds that no weight can be attributed to this Other Consideration.
Other Consideration 2: Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction provides that decision-makers must have regard to the following:
(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; and
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australian indefinitely).
The Applicant has a father, step-mother and four siblings residing in Australia, as well as extended family. The Applicant says he has no family or contacts in South Sudan.
There is a letter from DG, a secretary of an African community association in Western Australia. He says that arrangements have been made for the Applicant’s integration back into society once he is released from custody.[10]
[10] Ibid, page 172.
The Tribunal heard oral evidence from the Applicant’s father and step-mother. They gave evidence without the benefit of an interpreter. They had limited English but the Tribunal was satisfied that they each understood the questions asked and were able to convey their answers satisfactorily.
The father sponsored the Applicant and AB to come to Australia. The Applicant’s father and step-mother were separated at the time the Applicant came to Australia and continue to be separated. Both the Applicant and AB lived with their father when they came to Australia. AB continues to reside with the father. The Applicant’s other half siblings live with his step-mother. His father and step-mother live about 25 minutes away from each other travelling by train, and they see each other regularly on weekends and holidays. The father described his relationship with the Applicant now as ‘ok’.
The father said that the Applicant used to go to school and play soccer, but that he started misbehaving. He said his relationship with his son before he went to prison was ‘ok’. He said that he forgives the Applicant for what he has done.
He last saw his son in 2018. He has not visited him in prison because he does not own a car and has little money. He lives in Perth and it is about an hour’s journey to the prison. He has tried to telephone him in prison, but has had difficulty getting through to him.
When asked in cross-examination whether he was aware of the offences for which the Applicant was in custody, he said that he knew he had committed offences but only found out the nature of the offences when he attended court and heard what he had done.
The father was twice asked if he had ever made a complaint against his son. He twice answered that he has not. The Tribunal is satisfied that he understood the question being asked. The father was then asked about records of Western Australia Police relating to an incident on 26 January 2016. The father acknowledged that he and the Applicant argued on that occasion. He had asked the Applicant to leave and put his possessions in the carport. The Applicant threw a rock through a window. The father called the police. He believed his son had a knife and was frightened. The Applicant threatened him and he was scared. He was not sure if the Applicant had been drinking at the time.
The Applicant’s step-mother gave evidence but her English was not to the same standard of the father. She first met the Applicant in 2014 when he arrived from South Sudan. She said that he would come to her house from time to time. She would give him money for food. She said that when he was at her home he was quiet. He was a nice boy. He spoke to his siblings very well. She has not seen him since approximately 2016.
AB was to give evidence however she could not be contacted when telephoned. The Applicant’s father said that she had gone to school. The Applicant did not want to make any further attempts to try and contact her and did not want to call any other witnesses.
The Respondent submitted that these family ties should be given less weight because the Applicant began offending only two years after arriving in Australia, has spent a considerable period of time in custody, and as had very little contact with his family. This is further compounded by the strained relationship with his father and the separation of the family.
Conclusion: Other Consideration 2
The Applicant is 21 years of age, and the whole of his family now live in Western Australia. He has no family or acquaintances in South Sudan.
The Tribunal accepts that the family members, including the Applicant, will be upset should he return to South Sudan.
However, the Applicant arrived in Australia in about 2014 and he first offended in 2016. From that time, he has regularly offended and been before courts, and he has been in prison since 2017. His relationship with his father was also strained in 2016, resulting in the father making a complaint to police because he feared the Applicant. He has not seen his step-mother since 2016 and there is no evidence upon which the Tribunal can make a finding about the nature and extent of the Applicant’s contact with his siblings.
The Tribunal also accepts that the Applicant’s return to South Sudan will initially be difficult. He has the support of his father in Australia but will be a stranger in South Sudan and, at least initially, will not enjoy the same support upon his return to South Sudan. As difficult as it may be, there is no evidence before the Tribunal to suggest the Applicant will be unable to create a future for himself in South Sudan, albeit it may not be to the standard of living that he has the capacity to enjoy should he remain in Australia.
Accordingly, the Tribunal finds that Other Consideration 2 weights slightly in favour of the revocation of the Applicant’s visa cancellation.
Other Consideration 3: Impact on Australian business interests
No evidence was advanced that the revocation of the Original Decision would have a negative impact on Australian business interests.
Other Consideration 4: Impact on victims
No evidence was advanced that the revocation of the Original Decision would have a negative impact on victims.
Other Consideration 5: Extent of impediments if removed
Paragraph 14.5(1) of the Direction provides that decision-makers must have regard to the following where relevant:
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.
There is no substantial language or cultural barriers given the Applicant spent most of his youth in South Sudan. He would have the same rights as other citizens in South Sudan.
The Respondent submits that the lack of family ties in South Sudan would only be a short term impediment and does not preclude resettlement. The Respondent further submits that the Applicant should be able to overcome that impediment.
The Tribunal accepts that the Applicant fears returning to South Sudan because of his past experience when living there. However, in the absence of any acceptable evidence that there is any basis for that fear being currently held, the Tribunal does not accept that this factor will be an impediment.
Conclusion: Other Consideration 5
Having regard to the whole of the evidence, the Tribunal gives neutral weight to Other Consideration 5.
There are no more Other Considerations that the Tribunal should have regard to on the available evidence.
CONCLUSION
Section 501CA(4)(b) of the Act stipulates two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either (1) the Applicant must be found to pass the character test, or (2) the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the mandatory cancellation.
Based upon the Applicant’s serious offending, he does not pass the “character test” as defined in s 501(6) of the Act. In then considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to those considerations referred to in the Direction. Accordingly, The Tribunal finds that:
(a)Primary Consideration A weighs heavily in favour of non-revocation;
(b)Primary Consideration B is of neutral weight;
(c)Primary Consideration C weighs heavily in favour of non-revocation; and
(d)The combined weight of the Other Considerations is such that none of them, alone or combined, outweigh the combined weight of the Primary Considerations.
The Tribunal therefore finds that, taking into account all of the considerations in the Direction, they do not weigh in favour of the revocation of the mandatory cancellation of the Applicant’s visa.
Consequently, the Tribunal does not exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
For the reasons outlined above, the decision under review is affirmed.
I certify that the preceding 115 (one hundred and fifteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth
.........[Sgnd].................................
Associate
Dated: 24 June 2019
Date(s) of hearing: 6 June 2019 Applicant: In person (via video-link) Advocate for the Respondent: Mr Jake Kyranis (Solicitor) Solicitors for the Respondent: Sparke Helmore Lawyers
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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Remedies
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