GVQH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 33
•21 January 2021
GVQH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 33 (21 January 2021)
Division:GENERAL DIVISION
File Number: 2020/6819
Re:GVQH
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member R Maguire
Date:21 January 2021
Place:Brisbane
the reviewable decision is affirmed.
................................[SGD]....................................
Member R Maguire
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 - decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Criminal Code Act 1899 (Qld)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016)153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
REASONS FOR DECISIONMember R Maguire
21 January 2021
INTRODUCTION AND BACKGROUND
The Tribunal made an order under section 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) to prohibit the publication of the name of the Applicant in this matter. He will be referred to by the pseudonym, “GVQH”. The identity of certain other persons will also be an anonymised, lest the disclosure of their names have the effect of identifying the Applicant.
By application dated 3 November 2020, the Applicant seeks the review of a decision of a delegate of the Minister (“the Respondent”) dated 29 October 2020[1] made pursuant to subsection 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), not to revoke the decision made under subsection 501(3A) of the Act to cancel the Applicant’s Class TY, Subclass 444 Special Category (Temporary) visa (“the visa”).
[1] Exhibit G1, G Documents G3 at page 9.
Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of a visa if the person made representations within the relevant time period, provided for in the Migration Regulations 1994 (Cth) (28 days in accordance with reg 2.52), and the decision-maker determines that the Applicant passes the “character test”, or, as provided under section 501CA(4)(b), there is another reason why the mandatory cancellation should be revoked. The Minister accepted that the Applicant had made the necessary representations within the prescribed period.
Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if, under section 501(6)(a) of the Act the person has a substantial criminal record as defined by section 501(7). Relevantly, section 501(7) states:
(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;…
The term “imprisonment” is defined to include any form of punitive detention: section. 501(12) of the Act.
The Applicant is a 20 year old male citizen of New Zealand.[2] The Applicant was born in New Zealand[3] in December 2000, and first entered Australia on 4 July 2001.[4] He has briefly departed Australia five times since that date.[5]
[2] Exhibit R1, Respondent's Statement of Facts, Issues and Contentions (SFIC) at page 2, paragraph [4].
[3] Exhibit G1, G Documents G 17 at page 40.
[4] Ibid at page 42.
[5] Exhibit R1, Respondent's Statement of Facts, Issues and Contentions (SFIC) at page 2, paragraph [4].
The Applicant’s criminal offending commenced when he was fifteen years old.[6] He appeared three times in the Beenleigh Children’s Court from 2016 to 2018 for a range of offences including two separate counts of Burglary and Commit Indictable Offences committed on 15 October 2017, and 20 November 2017 for which no conviction was recorded and ordered to complete community service 20-40 hours.[7] On 13 December 2019, the Applicant appeared in the same court for a range of offences including Enter dwelling with intent by Break in company (two counts committed on separate dates); Possess utensils or pipes et cetera for use; Unlawful use of motor vehicles aircraft or vessels – Use used/intended for indictable offence; Unlawful use of motor vehicles aircraft or vessels – use; Stealing; Fraud dishonestly make off without paying (two counts committed on separate dates). No conviction was recorded, and he was reprimanded.[8]
[6] Exhibit G1, G Documents G4 at page 26.
[7] Exhibit R1, Respondent's Statement of Facts, Issues and Contentions (SFIC) at page 2, paragraph [5]; Exhibit G1, G4 at 25-26.
[8] Exhibit R1, Respondent's Statement of Facts, Issues and Contentions (SFIC) at page 2, paragraph [5]. Exhibit G4 at 23 – 24.
On 27 November 2019, the Applicant, who at the time was aged 18, appeared before Judge McGinness who constituted both the Beenleigh Childrens Court of Queensland and the District Court of Queensland. The Applicant pleaded guilty to what the judge described as “a large number of offences both as a child and an adult”.[9]
[9] Exhibit R2, Respondent's Tender Bundle TB 2 at page 72.
Convictions were recorded against the Applicant as a child for two separate indictments which included one count of Robbery in company; one count of Unlawful use of motor vehicles aircraft or vessels – use used/intended for indictable offence; one count of Robbery with actual violence armed/in company/wounded/used personal violence; one count of Unlawful entry of vehicle for committing indictable offence at night used/threatened violence in company; and one count of Unlawful use of motor vehicles aircraft or vessels – use.
These offences were committed by the Applicant when he was aged 17 to 18.[10] The judge recorded that the Applicant had prior Children’s Court history, and had been in custody for various periods of time as a juvenile, 106 days, and as an adult 365 days.[11]
[10] Ibid.
[11] Exhibit R2, Respondent’s Tender Bundle TB2 at page72.
In respect of the first indictment, the Applicant was sentenced as a child and received one sentence of 358 days detention for count one and one sentence of 90 days detention for count two. In respect of the second indictment, he received for count one and count two, 350 days detention, and for count three a period of 90 days detention[12]. As noted above, these periods of imprisonment constitute imprisonment: section 501(12).
[12] Exhibit R1, Respondent's Statement of Facts, Issues and Contentions (SFIC) at page 2, paragraph [6]. Exhibit G1, G Documents G4 at page 25; Exhibit R2, Respondent’s Tender Bundle TB2 at page 74.
On the same day, the Applicant was also convicted and received concurrent sentences in the District Court of Queensland of a total of nine charges for the following offences committed as an adult, and ordered to be released on 26 May 2020:[13]
[13] Exhibit R1, Respondent's Statement of Facts, Issues and Contentions (SFIC) at page 2 et seq., paragraph [7]; Exhibit G1, G Documents G4 at page 24 – 25; Exhibit G1, G Documents G15 at pages 87 – 88.
(a)five years imprisonment to be suspended after serving six months for each charge of:
(i)two charges (counts 2 & 3) of Robbery with actual violence armed/in company/wounded/used personal violence committed on separate dates;[14]
(ii)one charge (count 5) of Enter dwelling with intent by Break users/threatens violence whilst armed in company;[15] and
(iii)two charges (counts 6 & 7) of Robbery armed/in company/wounded/used personal violence[16] committed on separate dates;
(b)three years imprisonment for each of two charges (counts 1 & 4) of Unlawful use of motor vehicles aircraft or vessels – use used/intended for indictable offence[17] committed on separate dates;
(c)12 months imprisonment for one charge (count 8) of Unlawful use of motor vehicles aircraft or vessels – use;[18]
(d)three years imprisonment one charge (count 1 of a separate indictment) of Attempted robbery with actual violence whilst armed/in company/wounded/used personal violence;[19] and
(e)12 months imprisonment for one charge (Bench Charge Sheet 1902) of Enter premises and commit indictable offence by break.[20]
[14] The Tribunal notes that the maximum penalty for this offence is Life imprisonment: Exhibit R2, Respondent’s Tender Bundle TB2 at page 57.
[15] The Tribunal notes that the maximum penalty for this offence is Life imprisonment: Exhibit R2, Respondent’s Tender Bundle TB2 at page 57.
[16] The Tribunal notes that the maximum penalty for these offences are ten years’ imprisonment, and Life imprisonment: Exhibit R2, Respondent’s Tender Bundle TB2 at page 57.
[17] The Tribunal notes that the maximum penalty for these offences is ten years’ imprisonment: Exhibit R2, Respondent’s Tender Bundle TB2 at page 57.
[18] The Tribunal notes that the maximum penalty for this offence is Ten years’ imprisonment: Exhibit R2, Respondent’s Tender Bundle TB2 at page 57; section 408(1A) Criminal Code Act 1899 (Qld).
[19] The Tribunal notes that the maximum penalty for this offence is 14 years’ imprisonment: Exhibit R2, Respondent’s Tender Bundle TB2 at page 54.
[20] The Tribunal notes that the maximum penalty for this offence is Life imprisonment: Exhibit R2, Respondent’s Tender Bundle TB2 at page 61.
On 10 January 2020, whilst the Applicant was serving a term of imprisonment (that is, in actual criminal custody) the Respondent, pursuant to section 501(3A) of the Act, decided to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test (substantial criminal record) because of the operation of section 501(6)(a) because of section 501(7)(c),[21] i.e. that he had been sentenced to 12 months or more imprisonment.
[21] Exhibit G1, G Documents, G15 at pages 80-91.
Notice of this decision dated 10 January 2020[22] was given to the Applicant by hand on that date. In accordance with Regulation 2.52(2)(b) the Applicant was invited in accordance with section 501CA(3)(b) to make representations to the Minister about revoking the cancellation decision within 28 days after he had received the notice. The Applicant made representations[23] to the Minister on 11 January 2020 within the period and in the manner specified.[24]
[22] Exhibit G1, G Documents G15 at pages 80-92.
[23] Exhibit G1, G Documents G6 at pages 34-38; G7 at page 39-53.
[24] Exhibit G1, G Documents G6 at page 35.
On 29 October 2020, the Respondent, acting pursuant to section 501CA(4) of the Act, decided not to revoke the visa cancellation decision made under section 501(3A) of the Act,[25] and on 3 November 2020 the Applicant made the present application to this Tribunal for a review of that decision.[26] The Tribunal has jurisdiction to review this decision pursuant to section 500(1)(ba) of the Act.[27]
[25] Exhibit G1, G Documents G3 at pages 9-22.
[26] Exhibit G1, G Documents G1 at pages 1-8.
[27] The Act, section 500(6B).
The hearing of the instant application was initially listed for 6 and 7 January 2021, however when it came time to commence the hearing, the Applicant appeared unrepresented. The Tribunal raised with the Applicant that it had been under an expectation that he was to be legally represented, and the Applicant informed the Tribunal that this had been his expectation also, as he had paid money to certain lawyers. The Tribunal asked the Applicant if he wished to have an adjournment to seek legal representation, and the Applicant confirmed that he did. The Tribunal considered that it would be unfair to the Applicant to proceed with the hearing in those circumstances, and noted that the Tribunal had tried unsuccessfully approximately 25 times to get in touch with the nominated legal representative the day before the scheduled hearing. Mr Hawker (who appeared for the Minister) agreed that it would be unfair in the circumstances to proceed with the hearing.
The Tribunal therefore adjourned the matter for hearing on Thursday and Friday 14 and 15 of January 2021. The Tribunal addressed the Applicant in respect of this adjournment, and did its best to impress upon the Applicant the extreme urgency of his engagement of legal representation, and that he should advise his representatives that in view of the hearing dates, they would have until Monday 11 January 2021 to deliver any further information or documents for the Tribunal to consider. The Tribunal stressed to the Applicant that owing to the 84th day falling on Thursday 21 January, there would be difficulties offering him any further adjournment. The Tribunal was satisfied that the Applicant understood the situation, and accordingly adjourned the hearing to Thursday 14 and Friday 15 January 2021.
On Tuesday 12 January 2021, the Applicant informed the Tribunal that he would be representing himself at the hearing which took place as scheduled on 14 January 2021.
At the hearing, the Applicant represented himself, and the Respondent was represented by Mr Hawker of Sparkes Helmore. The Tribunal received oral evidence from the Applicant, who was in the migration zone on shore in Australia. The Tribunal also received written and oral evidence from the numerous witnesses set out below. The complete suite of written material forming the exhibit record is further particularised in the Exhibit Annexure attached hereto and marked “A”.
By operation of section 500(6L) of the Act, when an application is made to the Tribunal for a review of a decision under section 501CA(4) of the Act not to revoke a decision to cancel a visa, and the decision relates to a person in the migration zone, if the Tribunal has not made a decision within the period of 84 days after the day on which the person was notified of the decision under review in accordance with subsection 501G(1), the Tribunal is taken at the end of that period, to have made a decision under section 43 of the Administrative Appeals Tribunal Act 1975[28] to affirm the decision under review. At the hearing, Mr Hawker informed the Tribunal that for the purposes of this review, and section 500(6L)(c), the 84th day is Thursday, 21 January 2021. The Applicant did not disagree with this. It is therefore open to the Tribunal to make a decision prior to midnight, 21 January 2021.
[28] (Cth).
ISSUES
Revocation of the mandatory cancellation of visas is governed by section 501CA(4) of the Act. Relevantly, this provides that:
1The 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.
The Applicant made the representations required by section 501CA(4)(a) of the Act.
As provided in section 501CA(4)(b) of the Act, there are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[29]
[29] Minister for Home Affairs v Buadromo [2018] FCACF 151.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in section 501(6) of the Act. Under section 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in section 501(7). Section 501(7)(c) provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”. In addition, and as an alternative, section 501(7)(d) provides that a person will have a substantial criminal record if the person “has been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more.” Section 501(7A) provides that for the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part) the whole of each term is to be counted in working out the total terms.
The sentences imposed in the Children’s Court on 27 November 2019 alone provide by themselves, a serious criminal record for the purposes of section 501(7)(d). Similarly the sentences imposed in the District Court the same day provide by themselves a serious criminal record for the purpose of both section 501(7)(c) and (d). The combination of the two sentencing episodes of 27 November 2019 also provide a further instance of a serious criminal record for the purposes of section 501(7)(d).
The Tribunal notes that in submissions received by the Department on 6 February 2020, the Applicant conceded that he did not pass the character test as set out in section 501(6) of the Act.[30] In evidence before the Tribunal, the Applicant did not contend otherwise.
[30] Exhibit G1, G Documents G8; Exhibit G1, G Documents G3 at page 54.
The Tribunal therefore finds on this basis that the Applicant does not pass the character test pursuant to section 501(6)(a) of the Act and that the Applicant therefore cannot rely on section 501CA(4)(b)(i)[31] of the Act for the mandatory cancellation of his visa to be revoked.
[31] Note: This provides that the Minister is satisfied that the person passes the character test (as defined by section 501).
The remaining question therefore is found in section 501CA(4)(b)(ii), namely whether there is another reason why the original decision should be revoked.
As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[32]
…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…[33]
IS THERE ANOTHER REASON FOR THE REVOCATION OF THE CANCELLATION OF THE APPLICANT’S VISA?
[32] [2018] FCAFC 151.
[33] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016)153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
Ministerial Direction No. 79
In considering whether to exercise the discretion in section 501CA(4) of the Act, the Tribunal is bound by section 499(2A) to comply with any directions made under the Act. In this case, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 79”) has application.[34] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:[35]
(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
[34] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
[35] The Direction, sub-paragraph 7(1)(b).
In paragraph 6.2(3) of the Preamble, the Direction provides:
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to… revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered… in making a revocation decision are identified in Part C of this Direction.
The principles referred to in paragraph 6.2(3) are found in paragraph 6.3 of the Direction, and may be briefly stated 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-citizen’s 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 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 the 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 the visa application refused.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case. Paragraph 8(2) provides that in applying these considerations, information and evidence from independent and authoritative sources should be given appropriate weight. Paragraph 8(3) provides that both primary and other considerations may weigh in favour of, or against, whether or not to revoke a mandatory cancellation of a visa. Paragraph 8(4) provides that primary considerations should generally be given greater weight than the other considerations. Paragraph 8(5) provides that one or more primary considerations may outweigh other primary considerations.
Three primary mandatory considerations relevant in the context of a revocation decision appear in Part C of the Direction at paragraph 13:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
The Other Considerations which must be taken into account are provided in a
non-exhaustive list in paragraph 14 of the Direction. These considerations are:(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
The Tribunal notes and emphasises the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[36]
…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
[36] [2018] FCA 594 at [23].
The Tribunal now turns to addressing these considerations.
PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to 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. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. Further, this paragraph stipulates an expectation that those non-citizens are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining whether the mandatory cancellation of an Applicant’s visa serves to protect the Australian community, paragraph 13.1 of the Direction points out to decision-makers that mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principle that: (1) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country; and (2) those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction provides that decision-makers should 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.
In considering the nature and seriousness of the non-citizen ’s criminal offending or other conduct to date, decision-makers must have regard to several factors including those set out in paragraph 13.1.1 of the Direction:
(a)the principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)the principle that crimes 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 paragraph (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 any 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 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 is serious, as is an offence against section 197A of the Act.
The first step is considering the nature and seriousness of the non-citizen’s conduct to date. Such conduct must be measured in accordance with paragraph 13.1.1 of the Direction having regard to the Applicant’s criminal history. The totality of the Applicant’s offending can be gleaned from the following documents before the Tribunal:
(a)his criminal history which appears in a document called “Check Results Report” from the Australian Criminal Intelligence Commission;[37]
(b)the Sentencing remarks of Judge McGinness who constituted the Childrens Court of Queensland and the District Court of Queensland on 27 November 2019;[38]
(c)the Extract of records summonsed from the Queensland Police Service;[39]
(d)The Extract of records summonsed from the Queensland Office of the Director of Public Prosecutions (“DPP”);[40] and
(e)the Extract of records summonsed from the Beenleigh Magistrates Court.[41]
Evidence
Applicant’s Criminal History
[37] Exhibit G1, G Documents G4 at pages 23-26.
[38] Exhibit R2, Respondent’s Tender Bundle TB2 at pages 71-76.
[39] Exhibit R2, Respondent's Tender Bundle Exhibit R2 at pages 1-50.
[40] Exhibit R2, Respondent's Tender Bundle Exhibit R2 at pages 51-76.
[41] Exhibit R2, Respondent's Tender Bundle Exhibit R2 at pages 77 – 100.
Court/Hearing date Offence date Offence of which the Applicant was convicted
Sentence imposed Placed in Immigration Detention Beenleigh Children’s Court
13.12.201920.03.2018
27.02.2018-03.03.2018
17.03.2018-21.03.2018
02.04.2018-09.04.2018
21.04.2018
20.06.2018
03.04.2018
03.04.2018
04.04.2018
04.04.2018
Enter dwelling with intent by break
Possess utensils or pipes for use
Unlawful use of motor vehicle - use intended for indictable offence
Unlawful use of motor vehicle
Stealing
Enter dwelling with intent by break in company
Fraud – dishonestly make off without paying
Unlawful use of motor vehicle
Fraud – dishonestly make off without paying
Fraud – dishonestly make off without paying
No conviction recorded – reprimanded Beenleigh District Court
27.11.201907.02.2019
12.02.2019
12.03.2019
12.03.2019
13.03.2019
Robbery with actual violence armed/in company/wounded/used personal violence
Robbery with actual violence armed/in company/wounded/used personal violence
Enter dwelling with intent by break uses/threatens violence whilst armed in company
Robbery armed/in company/wounded/used personal violence
Robbery armed/in company/wounded/used personal violence
5 years imprisonment concurrent
Suspended for 5 years after serving 6 months5 years imprisonment concurrent
Suspended for 5 years after serving 6 months5 years imprisonment concurrent
Suspended for 5 years after serving 6 months5 years imprisonment concurrent
Suspended for 5 years after serving 6 months5 years imprisonment concurrent
Suspended for 5 years after serving 6 months31.01.2019-
11.02.201912.02.2019
unlawful use of motor vehicle
unlawful use of motor vehicle
3 years imprisonment concurrent
3 years imprisonment concurrent12.03.2019 Unlawful use of motor vehicle 12 months imprisonment concurrent 12.03.2019 Attempted robbery with actual violence whilst armed/in company/wounded/used personal violence 3 years imprisonment concurrent 03.02.2019 Enter premises and commit indictable offence by break 12 months imprisonment concurrent
Parole date for all sentences: 26.05.2020
Beenleigh Children’s Court
27.11.201921.04.2018 Robbery with actual violence armed/in company/wounded/used personal violence 358 days detention concurrent 23.06.2018 Unlawful entry of motor vehicle for committing indictable offence at night/used in company/threatened violence in company 358 days detention concurrent 23.06.2018 Unlawful use of motor vehicle 90 days detention concurrent 21.04.2018 Unlawful use of motor vehicle 90 days detention concurrent 21.04.2018 Robbery in company 358 days detention concurrent Beenleigh Children’s Court
12.03.201815.10.2017 Burglary and commit indictable offence No conviction recorded
20 hours community serviceBeenleigh Children’s Court
11.12.201720.11.2017 Burglary and commit indictable offence No conviction recorded
40 hours community serviceBeenleigh Children’s Court
27.06.201621.05.2016 Contravene order or requirement No conviction recorded
The Tribunal now turns to consider the specific sentencing remarks which have been provided, and reveal as follows.
In the course of her sentencing remarks, her honour observed[42]:
[42] Exhibit R2, Respondent’s Tender Bundle TB2 at pages 71-76 especially at 72-74..
…you have pleaded guilty to a large number of offences both as a child and an adult. As a child one count of robbery in company; one count of unlawful use of a motor vehicle to facilitate the commission of an indictable offence; one count of armed robbery in company with personal violence; unlawful use of a vehicle involving violence and another unlawful use of a motor vehicle. As an adult you have pleaded guilty to four armed robberies in company; an enter premises and commit an indictable offence; two unlawful use of a motor vehicle to facilitate the commission of an indictable offence; a burglary by breaking with violence while armed in company; unlawful use of a motor vehicle and an attempted robbery in company.
You were aged 17 to 18 at the time you committed the offences. You are now 18 years of age, almost 19. You do have a prior Childrens (sic) Court history. You have two entries for burglary offences and you were placed on community service for those offences. You have been in custody for various periods of time as a juvenile 106 days and as an adult 365 days…
Now, the offences you committed as a child was serious. On the 21st of April 2018, you and another forced a 19 year old from his parked car and it was just after midnight. He was grabbed. Your co-offender demanded his phone and when he ran off you both took his car. On the same day in the early hours of the morning you and another male entered a service station. Your co-offender was armed with a metal bar. Money was stolen approximately $400 and some cigarettes after money was demanded. You made admissions to that offence. On the 23rdof June, two months later, you were with others who threatened and used physical violence to steal a young man’s car outside a party in the early hours of the morning. You and others drove off in the car. When interviewed by police you denied your involvement.
… Over a five week period you committed a number of offences including unlawful use of a motor vehicle, robberies with actual violence, enter a dwelling with violence whilst armed and armed robberies in company. In all there appear to be about seven complainants, so people that were victims to your offending. There is no victim impact statements but I assumed that there must’ve been some adverse impact upon them.
Three unlawful use of a motor vehicle offences involved you being a passenger in stolen cars. Two armed robberies were of service stations which you committed in company. On the first occasion your co-offenders were armed. On the second occasion one of them was also armed. The entering dwelling offence is particularly serious, that’s count five on that indictment. You and a co-offender were both armed. You with a chisel, he was armed with a knife. You entered the complainant’s yard. You threatened a male complainant with a knife to let you into the house. When you entered you took keys and subsequently drove off in the car. The other serious circumstances of that offence are outlined in the schedule of facts that has been tendered. On another occasion you attempted to hijack a young man’s car in company. You also on another occasion broke into a liquor store and stole cash.
… You have done a number of courses whilst you been in custody… You have also been working in the kitchen and remaining drug-free. I have your letter which shows that you are aware of what you have done and how it has affected others and your family. You speak about your sadness in relation to your father’s death and missing some very important traditional ceremonies in relation to him and you talk about being truly remorseful for what you have done.
…
I also note your extreme youth despite your appalling offending and I have regard to the matters outlined in the pre-sentence custody report including your drug abuse, your struggle with drug use and other matters relevant to your family background.
… I note that there are some aggravating features: this was a protracted course of conduct where periods of remand did not deter you. The offences were committed whilst on bail. Some of the offending involved threats of violence and use of weapons. Whether it be by you or by one of your co-offenders. You were certainly armed during the home invasion. I also note that it is likely that you will be deported, that you have been in Australia since you were a baby and so that will be very difficult for you and also if your family.
[Tribunal’s emphasis]
The Tribunal notes that the facts of the “count 5” referred to by her honour record as follows:[43]
Count Five The complainant’s are the owners and occupiers of a residential property situated at Crestmead. On 12 March 2019 the complainants were in the kitchen area of the house and they noticed the right hand side roller door to the car port was pushed up and two male persons inside the property near the front. One of those male persons was the accused and he was holding a 6 inch chisel in his hand. Comments were directed to the complainant to the effect of where was Jack and that they were there to smoke a Bong with Jack. Both male persons went to the sliding glass door of the property and attempted to get inside. The complainant told his wife to lock the door and call 000. The male companion of the accused who had been holding a knife placed that beside the head of the complainant and said “Open the [expletive deleted] door or I’ll stick him”. The wife of the complainant opened the door in response to that instruction. The accused and the co-offender entered the residence and said “Where is the money [expletive deleted]? Where’s your wallet. Where’s the car keys.”
The wife of the complainant attempted to telephone Police but the cordless phone was taken and keys from a key rack. The accused and the co-offender demanded the car keys. The complainant, [name deleted] selected the keys to his car and gave them to the co-offender. (Count seven). Both the accused and the co-offender yelled at the complainant to open the door with his remote. That remote was on the keys handed to the co-offender. The complainant opened the door by deactivating the electric switch. In doing that the accused bumped the complainant and yelled for him to get it open. The accused entered the passenger side of the vehicle and the car was driven away.
[43] Exhibit R2, Respondent’s Tender Bundle TB2 at page 59.
What does not emerge from this summary is that after the offenders made off with the vehicle, they drove about 170 metres before the unknown male driver crashed the car into a tree.[44] This resulted in the destruction of the Holden Captiva vehicle which was valued at $27,500. Police requested that the Applicant pay restitution of one half of this amount. The Applicant stated to the police that he was sorry for his actions, and “didn’t mean to hurt the old people.”[45]
[44] Exhibit R2, Respondent's Tender Bundle TB1 at page 45.
[45] Exhibit R2, Respondent's Tender Bundle TB1 at page 46.
The Tribunal turns now to a consideration of the circumstances of particular offences as outlined in the Queensland Police Service Court Brief.[46]
[46] Exhibit G1, G documents G5 at pages 27 – 33.
One offence of Attempted Robbery was alleged to have been committed at 4:20 PM on Tuesday, 12 March 2019[47] at Altandi railway station, Sunnybank and is relevantly described as follows:
The defendant and unknown suspect person have observed the victim person seated in the front right driver’s seat of his white 2011 Toyota Corolla bearing Queensland Registration [redacted]…
The defendant has then proceeded to open the front driver’s door of the victim’s vehicle. The defendant has then attempted to remove the victim’s vehicle keys from the vehicle at which time the unknown male suspect has grabbed the victim by the right upper arm and attempted to undo the victim’s seatbelt. The defendant and unknown suspect have then attempted to pull the victim from the vehicle resulting in the victim initiating his vehicle into gear and accelerating away from the defendant and unknown male suspect. The victim obtained scratches on his upper right arm as a result of the incident.
…
Police conducted CCTV enquiries and subsequently identified the defendant.… The defendant further stated that he and his “bro” tried to steal a vehicle off an Asian man with black hair… The defendant then stated that he opened the front right driver’s door of the vehicle and tried to grab the car keys out of the ignition. The defendant then stated his “bro” tried to grab the victim out of the car before the victim accelerated away.… Police questioned the defendant in relation to his motive to which the defendant stated he was trying to steal a car to drive home back to Logan to see his mother otherwise he would have done a break and enter to steal the car. The defendant did not offer and (sic) lawful or emergent reason for committing the offence.
Please subsequently charge the defendant and denied bail to appear at Beenleigh magistrates Court on Thursday, the 14thof March 2019 in relation to the matter.
[47] Exhibit G1, G documents G5 at pages 27-28.
Counts 5 and 8 referred to above of Enter dwelling with intent by Break uses/threatens violence whilst armed in company and Unlawful use of a motor vehicle alleged to have been committed at Crestmead at about 1:45 PM on the 12th day of March 2019, were described as follows:[48]
[48] Exhibit R2 Respondent's Tender Bundle TB1 at pages 45-46.
The vehicle involved in this matter is a 2013 Holden Captiva bearing Queensland registration [redacted].
At about 1:45 PM on 12 March 2019 the defendant and another unknown male have pushed in and lifted the right garage roller door at [redacted] and entered the dwelling. The defendant was armed with a metal tent peg and unknown male was armed with a knife.
Victim [redacted] was cooking in the kitchen at the time and has looked out the window and noticed the roller door open, he has walked out into the carport area and met the defendant and the other unknown male. Both males have yelled at the victim saying they were “Here to smoke a Bong with [redacted]. Victim [redacted] has told them there are no drugs at the house and one of the offenders have come further forward yelling “Come on [expletive deleted] where’s the money”.
Victim [redacted] states the defendant was carrying a chisel approximately six inches in length and the other male was carrying a knife similar to a paring knife. Victim [redacted] shouted to his wife, Victim [redacted] to lock the door. [Redacted] has locked the back door and the offenders have attempted to open it. The unknown male has then held a knife to victim [redacted] and demanded victim [redacted] [the wife] open the door or they will “Stick” victim [redacted] [the husband].
Victim [redacted] opened the door the two offenders have entered the dwelling in a frantic manner shouting “Where’s the money [expletive deleted]”. Victim [redacted] has told the offenders he does not have a wallet and they have no money.
Victim [redacted] was attempting to call police and the defendant has ripped the cordless house phone from her hand. The defendant has then grabbed victim [redacted] Samsung Galaxy S5 mobile phone and a collection of keys hanging near the back door.
The defendant and the other unknown male were demanding the keys to the victims (sic)Holden Captiva bearing Queensland registration [redacted] (sic) Victim [redacted] got the key for the vehicle and gave it to the unknown male.
Both the defendant and the unknown male went to the car and demanded victim [redacted] open the left roller door, so they could exit. Victim [redacted] and the defendant manually lifted the door open. Victim [redacted] states the unknown male was in the driver’s seat.
The defendant jumped in the passenger seat and both males decamped in the vehicle down [redacted] About 170 metres down [redacted] on the right the unknown male driver crashed the car into a tree. Both airbags were deployed.
…
Police Scenes of Crime Offices open bracket (SOCO) have attended the address and the vehicle crash site and examined the car. The vehicle was seized and taken to Logan Central Police Station for further examination where a number of items of property, 12 fingerprints and DNA were recovered from the examination.
On the 13thof March 2019 the defendant’s fingerprints were identified from inside the stolen Holden Capitva.
Police from Logan CPIU attended the defendant’s home address of [address redacted] and located the defendant. The defendant voluntarily attended Beenleigh police station and took part in and (sic) EROI [electronic record of interview]. The defendant was honest with police and stated that he and the unknown male attended the address looking for some money… The defendant stated he was agitated at the time and can (sic)t remember what he said to the victims. The defendant stated that he grabbed a phone from a lady in the house. The defendant stated that he and victim [redacted] lifted the garaged door open and he got in the passenger side of the car. The defendant stated that the car crashed soon afterwards. The defendant stated that he ran off home afterwards. The defendant stated that he was sorry for his actions and didn’t mean to hurt the old people.
The defendant was placed under arrest and charged in relation to this matter and his bail objected and to (sic) appear in the Beenleigh magistrates Court on the 14th of March 2019.
Police request 50% of the $27,500 restitution for the destroyed Holden Captiva.
[bolding is Tribunal’s emphasis]
An offence of enter premises and commit indictable offence by break was alleged to have been committed on 3 February 2019, and the indictable offence alleged to have been committed was stealing.[49] The Applicant was described as “suspect one” and the offence was relevantly described as follows:
At about 3:00 AM on Sunday the 3rd day of February 2019 two unknown suspects have attended to liquorland Waterford Plaza. One of the suspects (suspect one) has attempted to shoulder-charge his way through some large glass panels located on the right-hand side of the victim business. During this effort the glass had cracked, and the suspect has cut himself in this process.
The second suspect (suspect two) has successfully gained entry to the victim business by using a large tool to smash a hole in the glass, whereby this suspect has entered the victim business and removed a cash register and both suspects have decamped on foot.
…
A forensic examination was conducted at the scene and some blood was located on the smashed glass panel still attached to the window frame and smashed glass sitting on the floor. This examination determined that there was a single DNA profile for the blood sample belonging to the defendant in this matter.
On Friday, the 14th day of June 2019 police attended to Arthur Gorrie Correctional Centre as the defendant was in correctional custody. Police offered the defendant an opportunity to participate in an electronic record of interview and the defendant declined.
[Tribunal’s emphasis in bold]
[49] Exhibit G1, G Documents G5 at page 33.
Extracts of records summonsed from Queensland Police Service Court Briefs[50] detail further offending by the Applicant. A number of these offences are referred to in the paragraphs that follow.
[50] Exhibit R2, Respondent's Tender Bundle TB1 pages 31-49.
As a 17 year old, the Applicant was charged with Robbery armed/in company/wounded/used personal violence at a time when he was living with his family and was on bail. Relevant details of the offence alleged to have occurred between 4:00 AM and 4:30 AM on 23 June 2018 may be summarised as follows.[51]
The defendant and a number of co-offenders have walked up to this grey Toyota Corolla where the victim and witnesses were all around the vehicle and the doors were open. The defendant and co-offenders have yelled at the victim and witnesses to “give me your car”. The witnesses and victims have laughed at the defendant thinking it was a joke.
A co-defendant has walked forward and punched victim [name redacted] in the chin with a fist causing him to fall to the ground near the driver’s door. [Name redacted] was also punched in the face by a co-defendant causing cuts to his lips.
The defendant and co-defenders have pulled all of the victim and witnesses (sic) out of the vehicle, stolen the car keys and all hopped into the vehicle. The defendant has entered the driver’s seat where the victim has attempted to pull the defendant from the driver’s seat. The defendant has fought off the victim with kicks and punches and driven the grey Toyota Corolla away.
[Tribunal’s emphasis in bold]
[51] Exhibit R2, Respondent's Tender Bundle TB1 at page 3.
The Applicant was also charged with Unlawful use of a motor vehicle arising out of this incident, and was alleged to have used the vehicle for approximately one and a half hours before abandoning it.[52] The Applicant admitted to driving the vehicle, but denied having been involved in the robbery. He was charged and his bail objected to on the basis that he was on bail for other offences and the seriousness of offences alleged.[53] Police attempted to contact his mother and lawyer due to his age but neither were able to be contacted.
[52] ibid.
[53] Exhibit R2, Respondent's Tender Bundle TB1 at page 4.
The Applicant was also charged with burglary and committing an indictable offence namely the stealing of vehicle keys, and unlawful use of a motor vehicle alleged to have been committed on 11 March 2018. The victim was an elderly woman. The circumstances of the offences included the following description:[54]
At approximately 5:55 AM on 11 March 2018 the elderly victim in this matter was asleep in the main bedroom of her residence when she was awoken by two males demanding keys to her Toyota Camry Queensland Registration [redacted] parked in the driveway of the residence.
The two male offenders have conducted a search of the residence locating the vehicle keys in a pair of the victim’s husband’s pants. The offenders have also removed a mobile phone belonging to the victim’s husband before decamping in the victim’s Toyota Camry.
The matter has been reported to Police and subsequently Scenes of Crime officers have attended and conducted a forensic examination. During this examination Police have located a soil sock label with the word “Emerson”. This sock was located on the floor of the victim’s house however was identified as being introduced by the offenders.
An examination of this sock has obtained a DNA sample that was positively matched to the DNA of the defendant [the Applicant].
… The defendant stated that he had no specific memory of this offence due to excessive methylamphetamine use at the time of the offence, the defendant however admitted that he would often commit like offences and stated that he would cover his hands with socks to prevent leaving any forensic evidence behind.
… The defendant was charged and his bail objected to, to appear in the Beenleigh children’s Court on 9 July 2018.
[54] Exhibit R2, Respondent's Tender Bundle TB1 at page 8.
Once again, Police attempted to contact his mother and lawyer due to his age but neither were able to be contacted.
A further charge of unlawful use of a motor vehicle arose on 3 April 2018 whilst the Applicant was on bail.[55] The vehicle, a Toyota Hilux had been stolen by persons unknown from premises the night before. At about 8:50 PM on 3 April 2018, CCTV recorded the Applicant alighting from the vehicle pumping 42.89 litres of fuel into it at a cost of $63, returning to the vehicle and decamping without payment for the fuel. The Applicant was charged with Fraud – dishonestly making off without paying in respect of this episode. Once again, Police attempted to contact his mother and lawyer due to his age but neither were able to be contacted. When questioned by police the Applicant made full confessions as to the fraud and the unlawful use of the vehicle, but denied being involved in the burglary offence during which the vehicle was stolen. He did however admit that he was aware at the time of getting into the vehicle that it was stolen, but got into it anyway. The vehicle the subject of this charge was never recovered by police.
[55] Exhibit R2, Respondent's Tender Bundle TB1 at page 15.
The Applicant was also charged with a further offence of Fraud – dishonestly making off without paying the next day, at Loganlea at 4:18 PM on 4 April 2018.[56] On this occasion, the Applicant, who was still on bail, was identified on CCTV exiting the driver’s seat of a stolen Mazda CX-7. A similar offence is recorded[57] as having been committed at 4:19 PM on 4 April 2018 again in respect of a stolen Mazda CX-7, but at a different location. On both occasions, Police attempted to contact his mother and lawyer due to his age but neither were able to be contacted.
[56] Exhibit R2, Respondent's Tender Bundle TB1 at page 18.
[57] Exhibit R2, Respondent's Tender Bundle TB1 at page 21.
The Applicant was charged with a further offence of Robbery armed/in company/wounded/used personal violence alleged to have occurred on 21 April 2018.[58] The offence occurred at around 12:10 AM when the Applicant and an accomplice approached a person who was in the process of alighting from a vehicle. The victim was told “get the [expletive deleted] out of the car”. The victim unbuckled his seatbelt and one of the assailants grabbed the front of his shirt and forcibly removed him from the vehicle. The victim was told by one of them “give me your [expletive deleted] phone”, and the victim began running away at which time the males got into the vehicle and drove away, stealing it. At approximately 12:46 AM that same day, CCTV footage at a service station at Calamvale depicted a male later identified as the Applicant. On 27 April 2018, the vehicle was located extensively damaged approximately 250 metres from the Applicant’s address. The Applicant subsequently voluntarily attended at the Crestmead Police Station on 22 May 2018 where he participated in an electronic record of interview during which he denied being involved in the robbery and claimed that he had been picked up during the early morning of that day in the stolen vehicle by two male persons who told him they had stolen the vehicle. The Applicant refused to provide details of the two males he referred to in his version of events as having stolen the vehicle. The Tribunal has no dollar figure before it as to either the repair cost or replacement cost of the vehicle, but notes that it was extensively damaged, and located close to the Applicant’s address. The Applicant was also charged with an offence of stealing 29.98 Litres of unleaded fuel valued at $40.02 alleged to have occurred on 21 April 2018 at 12:45 AM.[59]
[58] Exhibit R2, Respondent's Tender Bundle TB1 at page 24.
[59] Exhibit R2, Respondent’s Tender Bundle TB1 at page 27.
The Applicant was also charged with an offence of obstructing a police officer in circumstances described relevantly in the court brief[60] as follows:
At approximately 9:15 PM on the 12th of October 2018, Police from Upper Mount Gravatt Station were detailed a job to attend Macadamia Street Macgregor in relation to three males attempting to open parked car doors in the street (sic).…
A short time later, at approximately 9:45 PM Police were patrolling in the vicinity of the address on Mains Road in Sunnybank when they observed three males matching the males descriptions walking south along Mains Road.
Police have then observed the males walk into the Sunnybank Hotel car park. Police have then pulled into the Hotel carpark and alighted from the Police vehicle.
Police have then spoken to the defendant who was approximately 5 metres away from them. Police informed the defendant that they needed to speak to him and the two other males at which time the defendant has commenced decamping on foot in an easterly direction. Police have immediately given the defendant a direction to stop at which time the defendant has continued running.
Police have engaged in a foot pursuit with the defendant and caught him a short distance away…
[60] Exhibit R2, Respondent's Tender Bundle TB1 at page 30.
The Applicant was also charged with unlawful use of a motor vehicle at Underwood on 12 February 2019,[61] using the vehicle to facilitate the commission of an indictable offence namely armed robbery[62] prior to involving it in a serious traffic crash which led to his hospitalisation as discussed immediately below.
[61] Exhibit R2, Respondent’s Tender Bundle TB1 at page 36.
[62] Exhibit R2, Respondent's Tender Bundle TB1 at page 42.
The Applicant was charged with robbery armed/in company/wounded/used personal violence alleged to have been committed around 11:00 PM on 12 February 2019 at a service station at Underwood. At the time, the Applicant was armed with a knife and in company with three child co-offenders. Relevant extracts from the police brief describe the episode as follows:[63]
[63] Exhibit R2, Respondent's Tender Bundle TB1 at page 36.
At 11:00 PM on 12 February 2019, the defendant and three child co-offenders attended the victim business which is a BP Service Station situated at [redacted] Logan Road, Underwood.
A child co-offender was the first to enter the store and he remained in the front entry holding the glass doors open. The other two child co-offenders and the defendant have entered the store, with one child co-offender wielding a knife in his right hand.
At this time, there were two employees present at the victim business who were doing a changeover of shift. The male and female employees then barricaded themselves in the back room, using their bodies to hold the door shut.
One of the child co-offenders has kicked open the first door which provides access to the area behind the front counter. The same child co-offender has then attempted to kick open the second door which leads to the back room. The child co-offender has kicked the second door several times causing damage, however was unable to gain access as the two employees were using their bodies to keep the door closed. Standing in such a way that the doors could not close (sic).[64]
While the child co-offender was kicking the second door, the other two child co-offenders and the defendant entered into the area behind the front counter. The defendant opened the cigarette cupboard and stole an unknown quantity of cigarettes and tobacco while defendant a child co-offender removed the entire cash till which contained approximately $200 (sic).
The defendant and child co-offenders have then decamped from the victim business with the stolen property. All four decamped on foot along Logan Road towards Kingston Road. This entire offence was captured on high-definition CCTV which provides a very accurate depiction of clothing worn during the armed robbery.
[The Applicant] was wearing a longsleeved black shirt, long black pants, Adidas flip-flops and a grey shirt wrapped around his head.
At approximately 12:15 AM on 13 February 2019, the child co-offenders were arrested at the intersection of Brisbane Road and Marble Arche Place, Arundel, after being involved in a serious traffic crash in a stolen vehicle bearing Queensland registration [redacted] which rolled and came to rest on its roof. The defendant was transported to Gold Coast hospital to be treated for injuries sustained during the traffic crash. All persons were still wearing the same clothing depicted in the CCTV at the victim business.
A search was conducted of the stolen vehicle, namely a white Toyota Yaris bearing Queensland registration [redacted]. The search located a quantity of cigarettes and the till which were stolen (sic) from the victim business. Police also located a number of knives and various pieces of clothing which match the CCTV from the victim business.
[Tribunal’s emphasis in bold]
The extent of the financial loss arising from the damage to the vehicle is not before the Tribunal, but would appear to be significant.
The Applicant was also charged with an offence of Robbery armed/in company/wounded/used personal violence alleged to have been committed on 7 February 2019 at a Windaroo Service Station whilst he was armed with a stake. An extract of the facts of the charges as follows:[65]
At about 11:40 PM on the 7th of February 2019 three males entered the victim business, one of the ales (sic) has presented a wooden stake, the second male has produced a large metal star picket, whilst the third male, later identified as the defendant stayed as a lookout at the door. Standing in such a way that the doors could not be closed.
Male one and two have entered the premises, male one armed with the wooden stake has jumped the counter making demands of the victim, who has run towards the back room. Male one has chased after the victim still armed with the wooden stake, before the victim has managed to lock himself in the back room.
Male one has then returned to the register taking cash and a staff cheque from the register handing some of the cash over the counter to the second offender. Male one has then proceeded to run out of the store. Male two has grabbed two containers of milk before running at the main entrance and towards the road. The defendant has followed the two males.
Police have attended a short time later and seized CCTV footage. Upon viewing the CCTV footage police have identified the defendant in this matter.
At 7:45 AM on 11 February 2019 Police from Crestmead Police Station located a red stolen Toyota Camry displaying Queensland registration [redacted] which had been stolen from [redacted] on 1 February 2019.
A police officer from Logan Scenes of Crime has attended and conducted a forensic examination of the vehicle. During the forensic examination police located a metal stake matching the description of the steak used in the robbery along with documentation belonging to the defendant.
On the 20th of February 2019 the defendant attended Browns Plains police station after investigators from Logan Criminal Investigation Branch attended [redacted] where they executed a search warrant under the provisions of the Police Powers and Responsibilities Act.
The defendant has participated in an electronic record of interview making full admissions to robbing the victim business and using the stolen vehicle. The defendant was subsequently arrested and later released on undertaking to bail to appear before the Beenleigh Magistrates Court on the 3rd of April 2019.
[65] Exhibit R2, Respondent’s Tender Bundle TB1 at page 39.
The Tribunal has also had regard for a presentence report[66] dated 22 November 2019 and prepared by a Youth Justice Case Worker, of Logan Youth Justice Service Centre of the Department of Youth Justice, and from which the following extracts are taken.
[66] Exhibit G1, G documents G9 at pages 61-66.
[The Applicant] first came into contact with Youth Justice at the age of 15 and since this time has had to supervised orders; namely to Community Service Orders (50 and 20 hours[67] respectively). Youth Justice Records reflect that [the Applicant] completed both orders without any contravention applications.
[67] Exhibit G1, G documents G11 at page 69.
…
[The Applicant] acknowledged his father’s death was a significant and harrowing life event. And noted that he has struggled to come to terms with it. This struggle has been exacerbated by a sense of guilt due to [the Applicant] being absent from the family home when this event occurred. [The Applicant] identified that leading up to his father’s passing he was purposefully avoiding the family home as self-preservation strategy from police contact. This meant however he was not in contact with his family, nor home for a number of weeks. This absence meant [the Applicant] was not informed of his father’s death until some time after the fact.[68]
[68] Exhibit G1, G documents G9 at page 62.
…
[The Applicant] reports that following his father’s death, he gravitated to substances, namely Ice as his experience with the substance allowed him to remain on a “high”. [The Applicant] described throughout his later adolescence, he amplified his substance use and as such led to him developing a dependency.… [The Applicant progressively engaged in high risk behaviours, primarily offending, as this provided him a “rush” and allowed him to dissociate from his reality. [The Applicant] has indicated that this “rush” married with his use of Ice allowed him to feel invincible, subsided his moral compass, ultimately he engaged in behaviours he may not have done otherwise.…
Motivated by Financial Rewards to Support a Glamorised Anti--Social Lifestyle
[The Applicant] glorified an antisocial lifestyle of money, expensive possessions and substance use, whereby the use of violence and criminality were normalised. [The Applicant] placed high value on having access to materialistic items, despite this being something that was seemingly unobtainable to him throughout his childhood given the presence of financial strain amongst his family. [The Applicant] has consistently promoted the desire for a “gangster” lifestyle and suggested the significance of him adopting such a lifestyle was important to him.
[The Applicant] spoke specifically to the motivations associated with his offending being primarily financial gain, which he utilised to obtain materialistic items such as new clothing, shoes and also to fund his use of substances. It is assessed that [the Applicant’s] offending behaviours created opportunities for him to gain the sought after reward solidifying his motivations for offending.[69]
[69] Exhibit G1, G documents G9 at page 63.
Notably,[70] [the Applicant] has articulated frustrations with his consistent efforts to gain an income through employment. Reflecting he had made considerable attempts to “do things the right way”….
[70] Exhibit G1, G documents G9 at page 64.
YOUNG PERSON’S ATTITUDE TO THE OFFENCES AND THE VICTIM OF THE OFFENCES
[The Applicant] is able to differentiate between legal and illegal activity. However, he maintains pro-criminal ideals and presents with inconsistent motivation to seek pro-social alternatives to offending. It is assessed that [the Applicant] possesses a world view that amongst a pro-social society, he is looked down upon and as such feels disrespected. It is further assessed, that [the Applicant] has gravitated to a lifestyle whereby he is accepted and gains perceived respect for his preparedness to engage in antisocial behaviours, such as criminal activity.
[The Applicant] is assessed to possess a cognitive distortion surrounding his sense of entitlement to possessions that do not belong to him, stating “whoever wants it more, deserves it more” .…
During discussion with the author surrounding the victims of the offences pertaining to this report, [the Applicant] identified that people affected by his behaviours were random and not sort out for any specific reasons (gender, age, race et cetera). [The Applicant] deemed this information should provide the victims a sense of comfort, demonstrating a lack of insight into the potential emotional and psychological effects of his offending. It was with some prompting that [the Applicant] was able to articulate that experiencing such an offence (Robbery) would incite high levels of fear, and could lead to lasting and ongoing interferences with a person’s sense of safety, worldview and abilities to maintain engagements in their usual routine [such as returning to work].
Further, [the Applicant] knows that increasing the risk of his offending behaviours, for example offending against a business, will likely increase the financial reward. This factor has been assessed as relevant to the offences pertaining to this report.
CONSEQUENCES THE YOUNG PERSON HAS EXPERIENCED
… Further, it is assessed by the author that due to [the Applicant’s] early exposure to an adult custodial setting, this experience has inadvertently solidified [the Applicant’s] gravitation and entrenchment in networks that re-enforce pro-criminal ideologies and antisocial behaviours.[71]
…
During department engagements, [the Applicant’s mother] has reported lacking the ability to enforce rules and boundaries for [the Applicant] despite attempts to implement them.[72]
SENTENCING OPTIONS
…
[The Applicant] was 17 years of age at the time of the first offence and is 18 years and 11 months of age at such time that he is sentenced.
…
[The Applicant] has spent 358 days remanded in custody[73] at Brisbane Youth Detention Centre and Arthur Gorrie Correctional Centre in relation to these offences.
[The Applicant] has been remanded in an adult correctional facility since 14 March 2019.
[Tribunal’s emphasis in bold, original report headings underlined]
[71] Exhibit G1, G documents G9 at page 64.
[72] Exhibit G1, G Documents G9 at page 65.
[73] Exhibit G1, G Documents G10 at page 67.
The report also detailed a number of attendances and courses undertaken by the Applicant during a period when he was on a Conditional Bail Program. These included:
·Transition to Success Program (T2S) and a Certificate II in Business with 100% compliance;
·attending Logan Adolescent Drug Dependencies Early Response Services (LADDERS) to address his polysubstance misuse and to support better decision-making in the future;
·Core modules of Changing Habits and Reaching Targets (CHART) program to reduce risk of reoffending;
·Hear me, See Me aimed at skills development;
·Tautua Program (Pacific Island and Maori Cultural Program) however he requested to no longer participate in this program due to not wishing to explore his culture further;
·Lyrical Exploration, a weekly group counselling program designed to reduce young offending;
·an array of therapeutic and personal development interventions, including but not limited to Cognitive Behavioural Therapy;
·a “Gratitude Journey” to increase self awareness;
·Police Citizens Youth Clubs and Youth of the Streets (YOTS) recreational activities to develop pro-social interest and engagement in the community.
The report also recorded that the Applicant was referred in June 2018 to Youth Bail Accommodation Support Service (YBASS) due to “difficulties he was experiencing with complying with his then imposed 24 hour curfew condition. [the Applicant] met with the service on two separate occasions, however he eventually turned down their offer of the services.”
The Tribunal has also had regard for the Applicant’s encyclopaedic response to his criminal history.[74] The Tribunal notes that the Applicant’s initial recorded encounter with the law was when, at the age of 15 years, he contravened a police direction, and “ran from police not following their directions as I should have. I was wanted for questioning…”[75] The Applicant told the Tribunal that he was wanted in relation to a break and enter for which he was subsequently cautioned.
[74] Exhibit G1, G Documents G13 at page 73-78.
[75] Ibid at page 73.
The Applicant acknowledged committing his first indictable offence (Burglary and Commit Indictable Offence) on 20 November 2017 at which time he was 16 years of age. He explained this by saying that he was “grieving from the loss of my father so I turned to drugs using them heavily. I do not use this as an excuse, but an explanation.”
The Applicant described himself as “fried on ice” when at the age of 17 he committed “this disgraceful crime” of Robbery in Company on 21 April 2018, and said that he was ashamed of his actions. He admitted that on the same day he stole a motor vehicle for use in that offence, and apologised for his offence and the affects they had caused.[76]
[76] Ibid at page 74.
The Applicant offered no excuse and expressed shame for his crimes committed on 23 June 2018, when he stole a motor vehicle (for which he expressed apology) and “entered a motor vehicle knowing it was stolen and later used it in an indictable offence which was a robbery I think. I was not thinking straight as I was alreddy (sic) wanted for different crimes at the time.”[77]
[77] Ibid.
The Applicant expressed shame and said that he was “homeless and under the influence at the time & I was only thinking of money to get more ice” when he committed Robbery in company with actual violence offences on 21 April 2018.[78]
[78] ibid at page 75.
The Applicant said that he was already drunk when he tried to break into a liquor store on 3 February 2019, and could not remember the episode, but was apologetic for the damage that he had caused.[79]
[79] Ibid
The Applicant said that he was deeply shamed and apologetic, and offered no excuse, for his actions of 12 March 2019 at which time he admitted being “heavily under the influence of drugs” when he committed Attempted Robbery with actual violence, Robbery in company, Unlawful use of a motor vehicle, and Enter a Dwelling with intent to Break.[80]
[80] Ibid.
The Applicant said that he was ashamed that he had committed robbery while armed on 7 February 2019, and that it was “not normal for me while I am sobe (sic). I was not thinking at the time”.[81]
[81] Ibid.
The Applicant described his conduct which resulted in his being charged with Fraud for dishonestly making off without paying for fuel on 4 April 2018 as “just a stupid & inconsiderate act” which he admitted and for which he expressed sorrow. He also admitted a similar offence the previous day in relation to a stolen vehicle.[82]
[82] Ibid at page 76.
The Applicant admitted the break and enter offence of 20 June 2018, and said “I was breaking into houses at the time for money as I was homeless and had a drug addiction.”[83]
[83] Ibid.
The Applicant admitted the stealing offence of 21 April 2018, which he could not remember, and said that he was ashamed of this crime.[84]
[84] Ibid.
The Applicant said with regard to his conviction for unlawfully using a motor vehicle between 2 April 2018 and 9 April 2018, that he used the vehicle to sleep in, as he was “without a home at the time and had not slept in a couple of days I was under the influence of drugs.”[85]
[85] Ibid.
The Applicant admitted stealing a motor vehicle and using it to break into a house on 21 March 2018. He said that “like many of the other charges I have no excuse. I was heavily under the influence of drugs & was not thinking how I normally would.” The Applicant said once again that he felt deeply ashamed of his actions.[86]
[86] Ibid at page 77.
The Applicant also admitted possession of a pipe used for smoking “ice” or “meth” between 27 February 2018 and 3 March 2018. He stated “At the time I was using this drug heavy (sic) to try take the things I was going through away”.[87]
[87] Ibid.
The Applicant also admitted the break and enter with intent offence of 20 March 2018, saying that he was trying to get money from the owners as he was hungry and homeless, but offered no excuse for his conduct.[88]
[88] Ibid.
The Applicant undertook to make positive changes to his life whether he is given his visa back or deported, and to be a role model for troubled youth.[89]
[89] Ibid.
The Tribunal has also had regard for the Queensland Police Service Bail Affidavit of Detective Senior Constable Adam H dated 22 April 2018 and Annexure A thereto[90] (“the first bail affidavit”) as well as that of Constable Logan B dated 8 July 2018, and Annexure A thereto[91] (“the second bail affidavit”).
[90] Exhibit R2, Respondent's Tender Bundle TB3 at page 96-100.
[91] Exhibit R2, Respondent's Tender Bundle TB3 at page 91-95
The first bail affidavit recorded that the Applicant had been charged with a fresh offence of Armed Robbery alleged to have been committed at 4:45 am on 21 April 2018, only three weeks after he had previously been granted bail on 29 March 2018 (after having been initially remanded in custody for seven days) following his being arrested and charged on 20 March 2018 with ten indictable offences committed whilst he was on bail, and whilst he was the subject of a Community Service Order. The vast majority of these offences were serious indictable offences, and of a like nature to his criminal history. The Applicant was considered an unacceptable risk of committing further offences. The Applicant’s bail included a condition that he not leave his home address between the hours of 9:00 PM and 6:00 AM, and the most recent offence was committed in breach of his bail condition.[92] The Applicant refused to provide the name of his co-offender.[93]
[92] Exhibit R2, Respondent's Tender Bundle TB3 at page 98.
[93] Exhibit R2, Respondent's Tender Bundle TB3 at page 99.
The Tribunal sets out a portion of the first bail affidavit:[94]
ENDANGER THE SAFETY AND WELFARE OF THE COMMUNITY
By the very nature of this Armed Robbery offence, the defendant has shown a propensity to endanger the safety and welfare of the console operator at the offence location. The seriousness of the defendant’s offending has increased, and his (sic) is currently before the courts for multiple serious indictable offences. If granted bail police believe he would continue to be a danger to members of the community.
Police argue that bail conditions are not appropriate as they have not been a deterrent in this instance. The defendant has shown a blatant disregard for his bail by committing an Armed Robbery offence whilst on bail, and he committed this offence whilst in breach of his bail curfew condition.
[Tribunal’s emphasis]
[94] Ibid.
The second bail affidavit asserted[95] that there was an unacceptable risk that the Applicant would fail to appear, and recorded that investigators had attended at the Applicant’s home at 7:00 AM on 6 June 2018, and informed his mother that he was wanted for questioning on outstanding offences including Robbery. The Applicant’s mother had advised that she would wake the Applicant and attended the Crestmead Police Station at 7:15 AM with the Applicant to sort the matters out.
[95] Exhibit R2, Respondent's Tender Bundle TB3 at page 93.
The second bail affidavit further recorded[96] that the investigators returned to the Crestmead Police Station, however the Applicant and his mother failed to turn up as agreed. Investigators then contacted the Applicant’s mother by telephone, and she informed that the Applicant “was refusing to attend the Police Station.” Investigators then spoke to the Applicant and were advised by the Applicant that he would attend at the Crestmead Police Station after he had spoken to his lawyer. A short time later the investigators heard from the Applicant’s legal representation and were advised that the Applicant would attend within the next half hour.
[96] Ibid.
The second bail affidavit further recorded[97] that at approximately 9:30 AM, with the Applicant failing to appear, investigators attended at his place of residence to find that the Applicant was no longer present, and had left for Youth Justice at Logan Central. The Applicant was taken into custody at Youth Justice at 10:00 AM. The second bail affidavit records:
Upon being advised that Investigators would be opposing his bail [the Applicant] stated that if he had known this he would have gone on the run.
[Tribunal’s emphasis in bold]
[97] Ibid.
The second bail affidavit further asserted[98] that there was an unacceptable risk that if released the Applicant would commit a further offence. It listed the 14 indictable offences for which he was on bail and noted that the current charges were committed prior to his current bail undertaking.
[98] Ibid.
The Tribunal sets out an extract from the second bail affidavit:[99]
[99] Exhibit R2, Respondent's Tender Bundle TB3 at page 94.
However Investigators hold concerns based on the juvenile defendant’s current pattern of behaviour that he is an unacceptable risk of committing further serious indictable offences. The juvenile defendant displayed partial cooperation with Investigators whilst in police custody, but failed to display any remorse for the victims of his offences. The juvenile defendant’s behaviour when in the company of his peers indicates a complete disregard for the law and standards of society that the community expects from a citizen and it is apparent he lacks the required self-control to distance himself from these co-offenders.
Unacceptable Risk that if released the juvenile offender would endanger public safety.
The defendant continues to endanger the safety and welfare of members of the public and commit acts of violence against both (sic) members of the public. Investigators believe that given the actions of the defendant, members of the public would be at risk of serious assault or worse if confronted in committing further criminal offences.
The defendant has been charged with a number of offences that the public would consider serious. It is essential to the victims of these crimes and the community that Justice is seen to be done and nothing should be allowed to jeopardise the community and its citizen’s safety.
The defendant has shown he is unable to curb his offending behaviour, then it is now the duty of the Police and the Courts to prevent further offences from occurring within the wider community.
…
Nature and seriousness of the offence
The juvenile offender has participated and aided in the commitment of a serious violent offence in the form of a robbery with violence in company with another.
…
Character Antecedents
The juvenile defendant has shown that he has a likelihood of committing indictable offences and associates with other juveniles that he is committing offences with. The juvenile defendant is currently on bial (sic) but has previously disobeyed bail to meet up with co-offenders and continue to commit serious offences.
The juvenile defendant is not currently working or attending school but harbours desires to obtain a bricklaying job. He is currently residing at home with his mother and eight younger siblings. The juvenile’s mother admits that she has trouble controlling the juvenile defendant and can’t monitor him overnight when she has to sleep herself.
[Tribunal’s emphasis in bold and underlining in headings of original]
The Tribunal has had regard to the provisions of paragraphs 13.1.1 and 13.1.2 of the Direction and has also had regard to subparagraph 6.3(3) of the Direction. The Tribunal finds that the nature of the Applicant’s offending conduct is very serious, and that there is an unacceptable risk that he will engage in further very serious conduct if returned to the Australian community.
Having considered the entirety of the evidence and each of the relevant factors contained in the Direction, the Tribunal finds that Primary Consideration A weighs extremely heavily in favour of non-revocation.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether cancellation is or is not in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to cancel the subject visa is expected to be made. The latter provides that 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.
It is first necessary to identify the children actually or possibly relevant to this proceeding.
The Applicant is not the father to any children.
Aside from the Applicant’s own evidence, there is very limited evidence before the Tribunal regarding the Applicant’s interaction with infant children. The children seem to fall into three groups.
Firstly, those of his cousin A3 who was not called as a witness, but provided a statement in which she described the Applicant as a “kind, family member, talented, and intelligent, in some ways and ‘the funniest’ uncle to my children”. Although the Applicant referred to these children as if he were their uncle, and the cousin witness described the Applicant as her children’s uncle they are in fact first cousins once removed.
These children are aged 4 years, 2 years and one year. The Applicant has never met the youngest one, and the middle one appears to have been born around the time the Applicant was taken into custody, at which time the oldest one was about 2 years. None of these children has visited the Applicant during his periods of incarceration and immigration detention. Contact has been limited to an unspecified number of phone calls.
The assertion of an impact in respect of these children appears tenuous, and there is not sufficient information before the Tribunal to allow it to make an assessment of the overall impact of a decision by this Tribunal – one way or the other- on the children in question.
The Tribunal nevertheless accepts that were it to rule in favour of the Applicant, and were he to re-offend, the Applicant would not be a positive role model for these children, and it would – in that hypothetical circumstance – be a negative impact should he remain in Australia. In the event that the decision is affirmed, the Applicant could continue to have contact similar to that he has had since being taken into custody.
The second group of is the cousin Z, who is the adopted son of Witness A4, the Applicant’s aunty. This child is properly described as the Applicant’s cousin. The Applicant’s Aunt spoke positively of the relationship between the Applicant and her son, and although the evidence is limited, the Tribunal accepts that there is a positive relationship between the two, and that a decision of this Tribunal would impact on this child, and this weighs to some degree in favour of revocation.
The third group of children are the grandchildren of his Aunt Carol and are also his first cousins once removed. The Applicant told the Tribunal that these children are aged 2 years, aged 6 years. He has had some limited contact with them by phone since he was taken into custody. Whilst the elder child would have been about 4 at the time the Applicant went into custody, it appears that the younger child would have been at best a few months old. Similar considerations apply in respect of these children as do in respect of the other first cousins once removed.
Overall, the Tribunal considers that some limited weight in favour of revocation should be given to Primary Consideration B.
PRIMARY CONSIDERATION C: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1)[161] of the Direction provides that the Tribunal should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. The Tribunal must also have regard to (1) the Government’s views in this respect and (2) any overarching principles and guidance provided by the Direction.[162] Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an Applicant’s offending is such that the Australian community would expect that he/she should not hold a visa.
[161] The terms of paragraph 13.3(1) of the new Direction 79 are identical to the terms of paragraph 13.3(1) of the now revoked Direction 65.
[162] See the Direction, paragraphs 6.2(1) and 6.3(1)-(7).
The Evolution of the Australian Community’s “Expectations”
In 2003, this Tribunal said that in considering weight attributable to this Primary Consideration C, one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[163]
[163] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36] (per DP Block).
In 2017, Deputy President Forgie of this Tribunal considered that paragraph 13.3(1) of the Direction leads a decision-maker to:[164]
102. …conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa… [Tribunal’s underlining]
[164] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
This more circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection (“YNQY”):[165]
In substance this consideration is adverse to any Applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any Applicant who has failed the character test and has been convicted of serious crimes. [Tribunal’s underlining]
[165] [2017] FCA 1466 at [76]-[77].
The learned Justice Mortimer also thought the last two sentences of paragraph 13.3 of the Direction:
…[are] not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] we do not consider that even if the Applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do… [Tribunal’s underlining]
In Afu v Minister for Home Affairs (“Afu”),[166] Justice Bromwich said:
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did. [Tribunal’s underlining]
[166] [2018] FCA 1311 at [85].
In FYBR v Minister for Home Affairs (“FYBR”),[167] Justice Perry observed that:
It follows, in line with the authorities, that cl 11.3 of Direction 65[168] is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...[169] [Tribunal’s underlining]
[167] [2019] FCA 500.
[168] Note: FYBR was concerned with a visa refusal. This means the relevant paragraph relating to expectations of the Australian community was paragraph 11.3 [et seq] of the Direction. The instant case is, of c okay ourse, a matter relating to the non-revocation of a mandatory cancellation decision. In those latter circumstances, the relevant paragraph is 13.3 [et seq] of the Direction. Further, “the Direction” is now Direction 79 that took operative effect on and from 28 February 2019. The paragraph numbering in Direction 79 relating to “expectations of the Australian community” remains the same as per Direction 65 – that is, paragraph 11.3 for visa refusal matters and paragraph 13.3 for non-revocation matters.
[169] FYBR, paragraph [42] (Perry J).
The single judge decision in FYBR was appealed to the Full Federal Court. On 25 October 2019, the Full Court upheld the single judge decision in FYBR, confirming Justice Perry’s reasons and approach to the expectations of the Australian community.[170]
[170] See FYBR v Minister for Home Affairs [2019] FCAFC 185.
Thus, the Full Court’s decision, along with the existing authorities of YNQY and Afu establish that:
(a)the “expectations of the Australian community” cannot be measured or determined as a provable fact. Rather, it is an assessment of community values made on behalf of that community;[171]
(b)it is not for the Tribunal to determine for itself what such “expectations” are by reference to the Applicant’s circumstances or evidence about those expectations;[172]
(c)the Government’s views in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government thinks the “expectations of the Australian community” are, and the Tribunal should have due regard of those statements, if made; and[173]
(d)in assessing the weight attributable to this Primary Consideration C, decision‑makers can have regard to the principles in paragraph 6.3 of the Direction, in particular, sub-paragraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision-maker.[174]
[171] Afu at paragraph [85].
[172] FYBR at paragraph [42].
[173] FYBR v Minister for Home Affairs [2019] FCAFC 185, paragraph [74] (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
[174] Ibid, paragraphs [77] (Charlesworth J) and [105] (Stewart J).
Analysis – Allocation of Weight to this Primary Consideration C
In weighing this consideration, there is no escaping the clear unequivocal language of the very simple proposition found in paragraph 13.3 (1) of the Direction. It is in these words. “The Australian community expects non-citizens to obey Australian laws while in Australia.” The language could not be clearer. Neither could the Applicant’s failure to meet this expectation.
The Applicant in this case has what has been judicially described as an “appalling” record. Indeed the judge who last sentenced the Applicant, in doing so expressed anticipation of his deportation.
The Applicant’s randomly selected victims have been subjected to a deal of anguish and suffering. He has repeatedly violated the privacy of homes, and threatened and on occasions caused physical harm to his victims. He has caused great fear, and invaded the homes of the elderly and robbed them, He has shown a wanton disregard for the property and physical safety of others on numerous occasions. He has caused great financial loss to many people, and paid no restitution. He has never had a real job, and never paid any tax. He has been sentenced to significant terms of imprisonment. It is a challenge to discern a positive contribution that he has made to the Australian community.
Not only has this Applicant breached his obligation to obey Australian law, there is an unacceptable risk that he will do so again given the opportunity. The Tribunal believes the Australian community would strongly expect that this Applicant should not hold a visa.
Conclusion: Primary Consideration C
The Tribunal accordingly finds that this Primary Consideration C is to be given heavy weight in favour of affirming the non-revocation decision under review.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. The Tribunal will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
The Applicant has not claimed to fear harm if returned to New Zealand. None of the evidence suggests a risk of harm were that to occur. This consideration is not relevant to determination of this application.
(b) Strength, nature and duration of ties
The Tribunal accepts that this Applicant came to Australia at the age of about seventeen months, and (barring a few short trips to New Zealand as an infant) has lived here all of his life. The Tribunal accepts that all of the Applicant’s friends and nearly all of his extended family reside in Australia, and a number of them are prepared to offer him support.
The Applicant appears to have limited support from his mother and siblings, only one of whom gave evidence.
The Tribunal accepts that the Applicant has what are effectively strong lifelong ties to Australia.
It is also clear that the Applicant did not commence offending until he was about 15 years of age, and this therefore does not lessen the weight which should be given to this Other Consideration in accordance with paragraph 14.2 (1)(a)(i) of Direction 79. The Tribunal has struggled to identify any conduct on the part of the Applicant which might be described as contributing positively to the Australian community, and the Tribunal is unable to give this weight in his favour for the purposes of paragraph 14.2 (1)(a)(ii) of Direction 79.
In having regard for this consideration, the Tribunal has had regard for the principles at paragraph 6.3 of the Direction, and in particular at subparagraph (5) where it is stated “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 Tribunal accepts that the Applicant has resided in Australia for practically his entire life, and that all of his close friends and most relatives are in Australia. The Tribunal also accepts that should the Applicant’s visa remain cancelled this will impact on all of these people to some degree.
The Tribunal gives this consideration limited weight in favour of revocation.
(c) Impact on Australian business interests
There is no evidence before the Tribunal that the cancellation of the Applicant’s visa would have an impact on Australian business interests, or would significantly compromise the delivery of a major project, or delivery of an important service in Australia. The Tribunal therefore finds that this consideration is not relevant to determination of this application, and give it neutral weight.
(d) Impact on victims
There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any of his victims, and the Tribunal therefore makes no finding in relation to this consideration, and gives it neutral weight.
(e) Extent of impediments if removed
The Tribunal accepts that all of the Applicant’s friends and most close relatives reside in Australia, and that to the extent that he does have relatives in New Zealand, for the most part he does not know them well.
The Tribunal accepts that the Applicant, who is presently about eleven months short of his 21st birthday, has lived here effectively all his life.
The Tribunal also notes that New Zealand has a very good health system, and he would be able to receive any treatment recommended to assist him to overcome his problems of substance abuse should he choose to embrace it. Any such treatment would be comparable to what he might expect to receive in Australia.
Whilst there may be some language and cultural barriers to the Applicant’s potential assimilation into Maori society in New Zealand, the Tribunal considers that these would likely resolve with time. The Tribunal also notes that New Zealand is a developed country, with a strong social welfare system which could assist him to get back on his feet. In any event, the Tribunal does not consider these issues to present any serious impairment to the Applicant’s ability to establish himself and maintain basic living standards in New Zealand.
Overall the Tribunal views this consideration as being of slight weight in favour of revocation.
Findings: Other Considerations
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C, which each weighing heavily in favour of non‑revocation. The application of the Other Considerations in the present matter can be summarised as follows:
·international non-refoulement obligations: not relevant;
·strength nature and duration of ties: limited weight in favour of revocation;
·impact on Australian business interests: neutral;
·impact on victims: neutral; and
·extent of impediments if removed: slight weight in favour of revocation.
CONCLUSION
The Tribunal is now required to weigh all of the Considerations in accordance with the Direction.
In considering whether there is another reason to exercise the discretion afforded by section 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal finds as follows:
·Primary Consideration A weighs extremely heavily in favour of non-revocation;
·Primary Consideration B carries some limited weight in favour of revocation;
·Primary Consideration C weighs heavily in favour of non-revocation; and
·To the extent that Other Considerations weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh Primary Considerations A and C.
·Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
·Consequently, the Tribunal cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.
I certify that the preceding 258 (two hundred and fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire
..................................[SGD]......................................
Associate
Dated: 21 January 2021
Date of hearing: 14 January 2021 Date final submissions received: 31 December 2020 Applicant: In person Solicitors for the Respondent: Mr M Hawker, Sparkes Helmore Annexure A – Exhibit Register
EXHIBIT No
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
G1
Section 501 G-Documents (G1 to G17 pages 1 to 125)
R
-
16 NOV 20
A1
Statement of A1
A
4 NOV 20
01 DEC 20
A2
Statement of A2
A
4 NOV 20
01 DEC 20
A3
Statement of A3
A
-
01 DEC 20
A4
Statement of A4
A
4 NOV 20
01 DEC 20
A5
Statement of A5
A
10 NOV 20
01 DEC 20
A6
Statement of A6
A
10 NOV 20
01 DEC 20
A7
Statement of A7
A
5 OCT 20
01 DEC 20
A8
Further Statement of A4
A
30 DEC 20
31 DEC 20
R1
Respondent’s Statement of Facts, Issues and Contentions
R
-
21 DEC 20
R2
Respondent’s Tender Bundle (documents TB1 to TB3 pages 1 to 100)
R
-
21 DEC 20
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
-
Judicial Review
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Procedural Fairness
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Statutory Construction
-
Remedies
-
Jurisdiction
-
Natural Justice
0
12
0