GXXS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 3094
•1 September 2021
GXXS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3094 (1 September 2021)
Division:GENERAL DIVISION
File Number: 2021/3842
Re:GXXS
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member B. Pola
Date:1 September 2021
Place:Brisbane
Pursuant to s43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 8 June 2021 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
..................[SGD]......................................................
Senior Member B. Pola
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass character test – whether there is another reason to revoke the mandatory cancellation decision – consideration and application of Ministerial Direction No 90 – decision under review is affirmed
Legislation
Migration Act 1958 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Cases
Corbett and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2501
JNMK v Minister for Home Affairs [2019] FCA 1758
Minister for Home Affairs v Buadromo [2018] FCAFC 151
VKTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 649 (20 March 2020)ZSQC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1738
Secondary Materials
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Direction No 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member B. Pola
1 September 2021
INTRODUCTION AND BACKGROUND
The Applicant, GXXS is a 33 year old male citizen of New Zealand, who migrated to Australia as an infant with his family in 1989. The Applicant was last granted a Class TY 444 Special Category (Temporary) visa (herein referred to as ‘Visa’ in these reasons) on arrival into Australia in September 2014[1].
[1] Exhibit G1, G8, page 32.
The Applicant has a lengthy criminal history in Australia, with the first entries in his criminal record appearing in 2006, with the last entry recorded in December 2020. The Applicant’s convictions consist of numerous violent offences including: grievous bodily harm, assaults occasioning bodily harm, common assault and assault or obstruct police officer on licenced premise. He has also been convicted of offences relating to: public nuisance, being drunk or disorderly, failure to comply with conditions of the Courts and drug related offences[2].
[2] Exhibit G1, G9, pages 49 to 51.
On 3 December 2020 before the District Court in Queensland, the Applicant was convicted of grievous bodily harm and was sentenced to a term of imprisonment of two years, to be suspended for two years after having served six months in criminal custody[3].
[3] Exhibit G1, G9, page 49.
Whilst the Applicant was serving their term of imprisonment for the above offence, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (herein referred to as ‘Minister’ or ‘Respondent’), decided to mandatorily cancel the Applicant’s Visa (herein referred to as the ‘Visa Cancellation Decision’) on 2 February 2021 pursuant to s501(3A) of the Migration Act 1958 (Cth) (herein referred to as the ‘Migration Act’)[4]. This was done on the basis that the Applicant did not pass the character test pursuant to s501(6) of the Migration Act.
[4] Exhibit G1, G11, page 82; and Exhibit G1, G11, pages 74 to 80.
Following the Visa Cancellation Decision, the Applicant made representations to the Respondent[5].
[5] Exhibit G1, G12, pages 84 and 85; G13, pages 95 to 108; G14, pages 109 to 114; G15, pages 115 to 123; G16, pages 124 to 141; and G17, pages 142 to 148.
On 8 June 2021, the Respondent decided not to revoke the cancellation of the Applicant’s Visa pursuant to s501CA(4) of the Migration Act[6].
[6] Exhibit G1, G8, pages 28 to 48.
The Applicant lodged an application with the Administrative Appeals Tribunal (herein referred to as the ‘Tribunal’) on 14 June 2021 seeking a review of the abovementioned decision not to revoke the cancellation of his Visa, within the required time frame[7].
[7] Exhibit G1, G2, pages 3 to 8. For the Tribunal to have jurisdiction to review the decision, the Applicant
must have lodged the application for review with the Tribunal within nine days after the day on which he or
she received notification of the decision, refer to s500(6B) of the Migration Act.
The application was heard in Brisbane on 16 and 17 August 2021, with the Applicant represented by Ms Jennifer Samuta of Samuta McComber Lawyers. The Respondent was represented by Mr Jake Kyranis of Sparke Helmore, and all parties appeared via video link. The Tribunal heard oral submissions, in addition to submitted evidence as outlined in the Exhibit Register in Annexure 1 of these reasons.
Additionally, the following witnesses were called by the Applicant and gave evidence via telephone:
(i)The Applicant’s partner, Ms VT, whom the Applicant is expecting a child with later this year, and whom submitted statements in support of the Applicant[8];
(ii)The Applicant’s former employer, Mr SL, who provided a statement in support of the Applicant’s work history with the offer of employment should the Applicant’s Visa be restored to him[9];
(iii)The Applicant’s sister, Ms AH, who provided a statement in support of the Applicant[10]; and
(iv)The Applicant’s sister Ms ND, who provided a statement in support of the Applicant[11].
[8] Exhibit G1, G14, pages 109 to 110; Exhibit A2.
[9] Exhibit G1, G15, page 123.
[10] Exhibit G1, G15, page 117.
[11] Exhibit G1, G15, page 122.
ISSUES
Legislation regarding the revocation of the mandatory cancellation of visas is found in s501CA(4) of the Migration Act, which provides:
“(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.”
The issue before the Tribunal is whether the discretion to revoke the mandatory cancellation of the Applicant’s Visa may be exercised.
The Tribunal refers to the Full Court of the Federal Court of Australia’s observations in the Minister for Home Affairs v Buadromo[12]:
“…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…”[13].
[Tribunal underline for emphasis]
[12] [2018] FCAFC 151.
[13] 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).
Therefore, there are two issues for consideration before the Tribunal which must be decided:
(i)whether the Applicant passes the character test; and
(ii)whether there is another reason why the decision to cancel the Applicant’s Visa should be revoked.
The Tribunal must assess and evaluate the factors for and against revoking the Visa Cancellation Decision[14]. If the Applicant were to succeed on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s Visa must be revoked[15].
[14] Ibid.
[15] Ibid.
Does the Applicant pass the character test?
As previously noted, the character test is defined in s501(6) of the Migration Act. A person will not pass the character test if they have a “substantial criminal record” pursuant to s501(6)(a) of the Migration Act. Relevantly, s501(7)(c) of the Migration Act provides that a person is considered to have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Tribunal is of the view the Applicant does not pass the character test as he was convicted of grievous bodily harm before the District Court in Queensland in December 2020, and received a sentence of imprisonment of two years[16]. Further to this, the Tribunal observes the Applicant has received two further sentences of imprisonment greater than 12 months on earlier occasions[17]:
(i)Grievous bodily harm committed on 9 July 2016 and convicted before the District Court of Queensland on 30 August 2018, sentenced to a term of imprisonment of 18 months, with immediate parole; and
(ii)Two counts of assaults occasioning bodily harm whilst in company committed on 30 November 2007 before the District Court of Queensland on 31 May 2011, sentenced to a term of imprisonment of 15 months, with immediate parole.
[16] Exhibit G1, G9, page 49.
[17] Exhibit G1, G9, page 50.
The Tribunal is of the view that the Applicant is therefore unable to rely on s501CA(4)(b)(i) of the Migration Act for the mandatory cancellation of his visa to be revoked.
Is there another reason why the cancellation of the Applicant’s Visa should be revoked?
In considering whether to exercise the discretion in accordance with s501CA(4)(b)(ii) of the Migration Act, the Tribunal is bound by s499(2A) of the Migration Act to comply with directions made by the Minister under the Migration Act.
In view of this, Direction No 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (herein referred to as the ’Direction’) must be applied[18]. The Direction outlines a framework for decision makers with respect to exercising discretion in accordance with s501CA of the Migration Act. Paragraph 6 of the Direction provides[19]:
“6. Exercising discretion
Informed by the principles in paragraph 5.2 above, a decision-maker must take into account the considerations identified in sections 8 & 9, where relevant to the decision.”
[Tribunal underline for emphasis]
[18] On 15 April 2021, the former applicable direction, Direction No 79 – Visa refusal and cancellation under s501
and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by
Direction No. 90 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a
visa under s501CA.
[19] The Direction, paragraph 6.
Paragraph 7 of the Direction provides that decision makers must take into account the Primary and Other Considerations relevant to the individual case, and that when applying the primary and other considerations, “information and evidence from independent and authoritative sources should be given appropriate weight”.
Paragraph 7(2) of the Direction provides that, “Primary considerations should generally be given greater weight than the other considerations”. Additionally, paragraph 7(3) of the Direction provides that, “One or more primary considerations may outweigh other primary considerations”.
The considerations relevant in the context of a revocation decision appear in Paragraph 8 of the Direction, which stipulates the following primary considerations:
(i)Protection of the Australian community from criminal or other serious conduct (herein referred to as ‘Primary Consideration 1’);
(ii)Whether the conduct engaged in constituted family violence (herein referred to as ‘Primary Consideration 2’);
(iii)The best interests of minor children in Australia (herein referred to as ‘Primary Consideration 3’); and
(iv)Expectations of the Australian community (herein referred to as ‘Primary Consideration 4’).
The Other Considerations which must be taken into account are listed in paragraph 9 of the Direction. These considerations are:
(a) International non-refoulement obligations;
(b) Extent of impediments if removed;
(c) Impact on victims; and
(d) Links to the Australian community, including:
(i)Strength, nature and duration of ties to Australia; and
(ii)Impact on Australian business interests.
A number of principles are set out in paragraph 5.2 of the Direction which decision makers must consider in the exercise of their discretion. The Tribunal has transposed these principles here:
“(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious, that even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.”
Prior to addressing the four Primary Considerations, the Tribunal will provide an overview of the Applicant’s criminal history and evidence from witnesses called by the Applicant.
Overview of the Applicant’s criminal and other offending history
During the course of the hearing, the Applicant was taken to a number of entries in his criminal history which includes appearances before lawful authority on 19 separate occasions for 23 offences, six of which attracted sentences of imprisonment or default imprisonment, during the period of March 2006 to July 2018. The Tribunal will provide a brief history as to the detail of some of these offences.
Assaults occasioning bodily harm (in March 2006, sentenced in September 2006)
The first entry in the Applicant’s criminal history involved an incident recorded by Queensland Police which describes the Applicant as having punched a victim in the right side of the head with a closed fist. The victim sustained swelling and bruising to his right eye area as well as a small cut directly beneath their eye[20]. Additionally, the report states the Applicant made admissions to the offence at the time.
[20] Exhibit R2, R1, pages 35 and 36.
During the course of the hearing the Applicant recalled the incident and agreed that the recorded events by Queensland Police were accurate. When questioned as to why he had committed this offence, the Applicant stated that, “… what I did was unjustified…”; and that there was, “… no real significant reason why I did [it]...”[21].
[21] Transcript 16 August 2021, page 18, lines 10 to 23.
The Tribunal observes the Applicant received the benefit of a no conviction recorded notation in their criminal history for this offence, in addition to receiving a sentence of probation for nine months, an order to undertake 40 hours of community service, as well as an order to pay compensation of $100[22].
Assaults occasioning bodily harm (in September 2007, sentenced in December 2007)
[22] Exhibit G1, G9, page 51.
The Applicant was taken to Queensland Police records which described an incident involving him in September 2007[23]. The police records indicate the Applicant had kicked a security guard in the head. The Applicant was convicted of assaults occasioning bodily harm before a Queensland Magistrate Court in December 2007 and was sentenced to six months imprisonment to be served by way of an intensive correction order, and was ordered to pay $3,000 compensation[24].
[23] Exhibit R2, R1, page 29.
[24] Exhibit G1, G9, page 51.
When these events were put to the Applicant during the course of the hearing, the Applicant accepted they had occurred, and when asked why he had kicked the security guard in the head, the Applicant stated that it was, “… just an unprovoked attack” and that he was highly intoxicated at the time[25].
Possessing dangerous drugs (in December 2007, sentenced in January 2008); and Possessing dangerous drugs (in February 2008, sentenced in September 2008)
[25] Transcript 16 August 2021, page 18, lines 38 to 44.
During the course of the hearing the Applicant was questioned as to two counts of possessing dangerous drugs for which he received the benefit of a no conviction recorded notation with respect to his sentencing in January 2008, but received a conviction recorded and was fined in relation to his sentencing in September 2008[26]. The Applicant acknowledged these incidents had occurred and that they related to the possession of ecstasy and cannabis, although he was not sure which offence related to which prohibited drug[27].
Two counts of assaults occasioning bodily harm whilst in company (in November 2007, sentenced in May 2011)
[26] Exhibit G1, G9, page 51.
[27] Transcript 16 August 2021, page 19, lines 5 to 24.
The Applicant was taken to the sentencing remarks of their Honour in the District Court of Queensland, a document obtained under summons from the Office of the Director of Public Prosecutions entitled, ‘Draft schedule of fact, version four’, and his criminal history which recorded the Applicant’s sentencing[28].
[28] Exhibit G1, G10, pages 66 to 73; Exhibit R2, pages 37 to 45; Exhibit G1, G9, page 50.
The circumstances of the Applicant’s offending occurred at a work function on a boat where the Applicant, accompanied by other offenders, had assaulted a victim. The Tribunal refers to the sentencing remarks of their Honour before the District Court[29]:
“… Now, you, [Applicant], are to be dealt with for counts 1 and 2. The facts seem to support your counsel's submission that although you were involved in kicking [victim 1] when he was on the ground, your kicks may not have caused any particular injury. It is said your kicks were to the body, not to the head. Nonetheless, while you were kicking him on the ground to the body, somebody else was kicking him to the head. With respect to count 2, it is said that you were not involved in the physical altercation but were standing by as three to five men assaulted [victim 2]…”
[Tribunal redactions]
[29] Exhibit G1, G10, pages 70 and 71.
When this offending was put to the Applicant at the hearing he agreed that the sentencing remarks from their Honour in the District Court were accurate[30]. The Applicant had previously confirmed in an earlier statement to the Respondent, that the sentencing remarks were, “… true and fair”[31].
[30] Transcript 16 August 2021, page 20, lines 1 to35.
[31] Exhibit G1, G17, page 143, paragraph 22.
When the Applicant was questioned as to whether the Office of the Director of Public Prosecutions draft schedule of facts were correct when it had stated that the Applicant was present and not doing anything whilst victim 2 was on the ground, the Applicant stated that the description of his actions was correct[32].
[32] Transcript 16 August 2021, page 20, lines 31 to 35; Exhibit R2, R2, page 40, paragraph 31.
The Applicant was ultimately sentenced to fifteen months imprisonment for both counts of assaults occasioning bodily harm, however their Honour set a parole date as at the date of sentencing for this offending, the Tribunal refers[33]:
“… there are two factors which persuade me that each of you need not directly go to gaol. They are that there are some unusual circumstances which led to this violence and that the events occurred about three and a half years ago now and it can be said, certainly for some, and more or less for others of you, that you have demonstrated capacity for rehabilitation in the interim, and that is a proper thing for me to take into account. So because of those two things I am persuaded that I should impose sentences but not require your immediate imprisonment…”
Common assault and Drunk or disorderly in premises to which a permit/licence relates (in April 2012, sentenced in October 2012)
[33] Exhibit G1, G10, page 71, lines 29 to 43.
During the course of the hearing the Applicant was taken to a Queensland Police Court Brief that recorded the following facts of the charge of common assault which occurred in late April 2012[34]:
“…The Defendant [Applicant] was observed to be holding a bar stool and waving it above his head in an aggressive fashion. At this time the victim approached the Defendant and asked him to put the stool down and leave the premises due to disorderly behaviour.
The Defendant [Applicant] has become argumentative and initially refused to leave. About the same time a number of the Defendants [sic] associates have come to where the Defendant [Applicant] and victim where [sic] having a conversation and become involved in attempting to negotiate to remain at the premises.
After some time the Defendant [Applicant] has walked towards the exit followed by his associates and the victim. At this time the Defendant [Applicant] has exited the premises of his own free will and walked out onto the footpath beyond entry barriers. The Defendant [Applicant] has remained at this location for a short period of time before reapproaching the barriers, where the victim was standing, and spat on the face and chest [of the victim] before turning to decamp from the area.
Immediately the victim and other security providers have given chase and detained the Defendant [Applicant] before transitioning him to the ground and restraining him. Police were contacted to attend at this time. Whilst waiting for Police the Defendant's associates have started to behave in an aggressive manner causing security to fear for their safety...”
[Tribunal insertions]
[34] Exhibit R2, R3, pages 60 to 61.
The Applicant was questioned as to whether the police recorded the events of the incident fairly, which the Applicant had agreed, however he stated that the police had left a few details out with respect to the victim and other security guards forcing the Applicant to the ground causing him a head injury[35]. The Tribunal observes the Applicant in previous statements to the Respondent stated the following with respect to both offences, “… I do not have any particular comments on this statement, it seems fair…”[36]. At the hearing, the Applicant did concede that he was heavily intoxicated at the time[37].
[35] Transcript 16 August 2021, page 21, lines 20 to 30.
[36] Exhibit G1, G17, page 143, paragraph 25.
[37] Transcript 16 August 2021, page 21, line 30.
The Applicant was sentenced in the Magistrates Court of Queensland in October 2012. With respect to the offence of drunk or disorderly in premises to which a permit/licence relates, the Applicant received a conviction but was not further punished[38].
[38] Exhibit G1, G9, page 50.
For the offence of common assault, the Applicant was originally convicted and sentenced to six months imprisonment to be served by way of an intensive correction order and ordered to pay compensation. The Applicant was later resentenced for this in June 2013, after having breached the intensive correction order. The sentencing Magistrate revoked the intensive correction order and sentenced the Applicant to two months imprisonment with immediate parole[39].
Commit public nuisance (in January 2013, sentenced in June 2013)
[39] Ibid.
The Applicant was taken to a Queensland Police Service Court Brief regarding an offence of commit public nuisance which had occurred in late January 2013. The brief records the following with respect to an incident involving the Applicant[40]:
“…Police observed the defendant [Applicant] had removed his shirt and was yelling aggressively. He clenched his fists and was yelling words to the effect of “F[***] you c[****]! I'll f[******] get you" to what appeared to be the patrons still inside the venue.
The defendant continued yelling aggressively and waving his fists towards the next window, and then to the front glass doors of the venue. Police observed there were no persons inside the venue communicating back with him.
As the defendant approached the front glass doors he stepped forward and kicked them in an extremely aggressive manner, making a loud 'bang' sound and startling the persons nearby.
The defendant was then arrested and handcuffed by Police. The defendant could provide no lawful or emergent reason for his actions, stating only he was 'pissed off' but could not explain why...”
[Tribunal insertions and redactions]
[40] Exhibit R2, R1, page 21.
When the Applicant was questioned as to whether the brief was a fair summary of the incident, he agreed that it was, and that he was intoxicated at the time[41]. The Tribunal observes the Applicant was convicted and sentenced in the Queensland Magistrates Court for this offence in June 2013, where he received a sentence of imprisonment of two months, with immediate parole[42].
Commit public nuisance (in June 2014, sentenced in October 2014)
[41] Transcript 16 August 2021, page 22, lines 24 to 25.
[42] Exhibit G1, G9, page 50.
The Applicant was again taken to a Queensland Police Service Court Brief regarding an offence of commit public nuisance which had occurred in late June 2014. The brief records the following with respect to an incident involving the Applicant[43]:
“… the defendant [Applicant] was spoken to by police when he kept interrupting police who were dealing with other members of the public regarding another matter.
The defendant [Applicant] was given ample opportunity to leave the area and not interrupt police. The defendant has then become irate towards police and was challenging police to leave the boundary of the hotel car park and fight him. The defendant has then become verbally abusive towards police saying "Youse [sic] are f[******] weak c[****]!"”
[Tribunal insertions and redactions]
[43] Exhibit R2, R1, page 17.
Again, when the Applicant was questioned as to whether the brief was a fair summary of the incident, he agreed, and confirmed that he was intoxicated at the time[44]. The Applicant was convicted and fined for the offence in October 2014 in the Queensland Magistrates Court[45].
Drunk or disorderly in premises to which a permit/licence relates (in August 2015, sentenced in September 2015)
[44] Transcript 16 August 2021, page 23, lines 6 to 9.
[45] Exhibit G1, G9, page 50.
The Applicant was taken to a Queensland Police Court Brief which details an incident involving the Applicant with respect to an offence of drunk or disorderly in premises to which a permit/licence relates which occurred in August 2015. The brief describes the Applicant as appearing heavily intoxicated at a public venue by attending police officers, with the Applicant described as yelling insults in the direction of police (such as “pig”) with members of the public present. The Applicant is described as continuing to yell this insult and pointing at a female police officer. The Applicant continued this insult after having been approached by police[46].
[46] Exhibit R2, R1, page 13.
When the Applicant was asked whether this was a fair summary of the incident during the hearing, he agreed that it was and that he was indeed heavily intoxicated[47]. The Applicant appeared before the Queensland Magistrates Court in October 2014, where a conviction was recorded and he was fined $600[48].
Grievous Bodily Harm (in July 2016, sentenced in August 2018)
[47] Transcript 16 August 2021, page 23, lines 17 to 23.
[48] Exhibit G1, G9, page 50.
During the course of the hearing the Applicant was taken to a transcript of proceedings in the District Court of Queensland in August 2018 (where the court ruled that the Applicant’s guilty act was negligent rather than intentional)[49], in addition to being taken to a further transcript of sentencing remarks in the District Court of Queensland a few days later[50], as well as photos of injuries suffered by the victim of the Applicant’s conduct[51].
[49] Exhibit R2, R2, pages 46 to 48.
[50] Exhibit G1, G10, pages 56 to 62.
[51] Exhibit R2, R2, pages 43 to 45.
The events involving the Applicant regarding the incident which occurred in July 2016, are summarised by their Honour in sentencing remarks[52]:
“… At one point, when the complainant was near you with the pool cue and waving it around, either tapping you on the legs with it or waving it near your face, you grabbed it from him. You took it with both hands and moved the butt of the pool cue towards the face of the complainant. The butt of the pool cue connected with the complainant’s face.
You fall to be sentenced on the basis that the offence is the product of criminal negligence. I have found that while the motion you made poking the pool cue towards the complainant’s face was deliberate, I accept that you did not intend to strike the complainant in the face. Nevertheless, it is patently clear that there was a high degree of negligence in the manner in which you moved the pool cue, given you were in such close proximity to other patrons. It was clearly foreseeable to you that the complainant could easily have been injured, and you have accepted that by your plea of guilty to grievous bodily harm.
This is a serious case of criminal negligence. While no malice was involved, pool cues can be a dangerous implement, and your actions with the pool cue were incredibly stupid. Your deliberate act in pushing the butt of the pool cue in the direction of the complainant has resulted in serious injury to the complainant. The pool cue connected with the complainant with such force that the CCTV footage shows him falling backwards a considerable distance…”
[52] Exhibit G1, G10, page 57.
With respect to the injuries suffered by the victim of the Applicant’s offending conduct, their Honour summarised these as follows[53]:
“… The complainant was transported to the hospital, and he sustained bruising and swelling to the right eyelid and experienced tenderness in the eye area. Scans confirmed that he had right, medial and inferior orbital blowout fractures with herniation of medial and inferior rectus muscles. He had surgery on the 26th of July 2016. He required two further surgeries because of continued double vision. To date, he still suffers ongoing issues with double vision.
It is clear from his victim impact statement that, in addition to the physical injury, there was a significant financial toll on the complainant, as he was unable to work due to the problems with his eyesight. For about two years following the incident, he has struggled to keep full-time work due to a number of hospital visits that he has required. He also suffers anxiety…”
[53] Exhibit G1, G10, pages 57 and 58, lines 39 to 47; lines 1 to 3.
The Tribunal observes that the Applicant had written a letter with undertakings which he submitted to their Honour for consideration with respect to his sentencing. The Tribunal refers to their Honour’s sentencing remarks[54]:
“… I have received a letter from you, a letter expressing your remorse, in which you say that you have made a conscious decision to not be drunk in public so that you can have better control over your decisions, and you have decided to limit the sorts of places that you go to avoid getting into fights and now have decided that you should not drink much at all, even at nicer venues. Given your history, that seems to be a very wise decision…”
[54] Exhibit G1, G10, page 59, lines 1 to 6.
The Applicant had previously submitted the following statement to the Respondent with respect to this sentencing episode[55]:
“… I think the sentencing judge's comments in this transcript are fair. Although it is not the transcript, the judge referred to my behaviour as tomfoolery…This is correct. I never intended to hit the victim with the pool cue, we were just messing around. There was absolutely no anger involved, I was just trying to mimic what he was doing to me… I believe if I had been sober the pool cue would never have made contact with his face. I had been drinking most of the day prior to this offence, and while I was able to get into the pub, by the time it was night time I was quite intoxicated...”
[55] Exhibit G1, G17, page 144, paragraphs 28 to 30.
The Tribunal notes the Applicant was sentenced to imprisonment of 18 months and given immediate parole[56].
Assault or obstruct police officer licensed premises (in July 2018, sentenced in March 2019)
[56] Exhibit G1, G9, page 50.
Whilst not fully ventilated at the hearing, there is nonetheless a conviction on the Applicant’s criminal history for assault or obstruct police officer licensed premises, which occurred in July 2018. Queensland Police records describe an incident involving the Applicant resisting arrest when police were called to a public venue where the Applicant had been involved in a physical altercation with another male patron. The records describe the Applicant as continuing to tense his arm in order to try and prevent the attending police from handcuffing him[57].
[57] Exhibit R2, R3, page 59.
The Applicant was sentenced before a Queensland Magistrates Court in March 2019, where a conviction was recorded and the Applicant was fined[58].
Grievous Bodily Harm (in July 2018, sentenced in December 2020)
[58] Exhibit G1, G9, page 50.
The final conviction recorded in the Applicant’s criminal history occurred in July 2018. During the hearing the Applicant was taken to a Statement of Facts which was produced under summons by the Office of the Director of Public Prosecutions[59]; as well as sentencing remarks of their Honour in the District Court of Queensland in December 2020[60]. Additionally, a pre-sentence psychological report was prepared for the Court by Mr Peter Perros dated 1 December 2020[61].
[59] Exhibit R2, R2, pages 49 and 50.
[60] Exhibit G1, G10, pages 52 to 55.
[61] Exhibit R2, R2, pages 53 to 58.
The Tribunal refers to the sentencing remarks of their Honour which describe the incident which took place in July 2018[62]:
“… On this occasion, and I should note this point that you were 30 at the time, you are 32 now. You were at the [location redacted] Hotel and it says in the facts that it’s unclear why there was animosity between you and this other person who you did not hit, his name was [name redacted]. But you do tell Mr Perros in the report that he has provided, that it was because you thought, again referring to paragraph 50, that you saw a man spit at a woman, it says “we argued and he walked away, jumped into a taxi”; and then it was the third person who was the complainant who came at you, you saw him peripherally and punched him, causing quite significant injuries which are described, and I have seen the photos which are exhibit six of what are quite serious injuries.
Three lower incisor teeth were pushed backwards out of their sockets and the five millimetre puncture to the lower lip. He has had teeth relocated using a bilateral mandibular nerve blocks and the lip puncture was closed with an absorbable suture and he we referred to a endodontist and the prospects, according to the report is that the front lower incisors were not responding well and were weak and that if left untreated it would have permanently dislocated front lower incisors; he would have lost those teeth…”
[Tribunal redactions]
[62] Exhibit G1, G10, page 53.
During the hearing the Applicant was asked whether the sentencing remarks of their Honour, transposed above by the Tribunal were a fair summary of the incident. The Applicant agreed that they were and that he was intoxicated at the time[63].
[63] Transcript 16 August 2021, page 24, lines 12 to 18.
The Applicant was convicted of grievous bodily harm and was sentenced to a term of imprisonment of two years, which was suspended after having served six months[64].
[64] Exhibit G1, G9, page 49.
Evidence from witnesses called by the Applicant
The Applicant’s partner, Ms VT
The Tribunal heard evidence from the Applicant’s partner on the first day of the hearing. She provided several statements in support of the Applicant, in addition to medical evidence with respect to her having achieved a pregnancy with the Applicant (via in-vitro fertilisation), with their child due to be born at the end of this year[65]. With respect to the oral evidence of Ms VT, the Tribunal refers to the following summary[66]:
[65] Exhibit G1, G14, pages 109 to 114; Exhibit A2.
[66] Transcript 16 August 2021, pages 40 to 50.
(i)Ms VT has been in a relationship with the Applicant for the past sixteen years and has known the Applicant since she was fifteen years of age. She is in a committed relationship with the Applicant, although admits they have had some “rough patches” (in her words) as a result of infidelity on the Applicant’s part in the past. Despite this, Ms VT has future plans with the Applicant to buy a house, with a shared hope to raise their child.
(ii)Ms VT described the Applicant as a shy person, but was outgoing in the presence of Ms VT. Additionally, Ms VT described the Applicant as hard working.
(iii)Ms VT has seen the Applicant’s criminal history with reference to the Applicant’s Australian Criminal Intelligence Commission report[67], but was not able to recall anything in detail. Ms VT was of the view that the Applicant’s offending centred around difficulties in his life with respect to his mother being diagnosed with a brain tumour, who subsequently had two strokes and recently passed away. An additional factor was finding out that his father had molested his sister who has a medical incapacity. Ms VT was of the view that the Applicant was using alcohol to numb the pain of these tragedies in his life, and that most of the Applicant’s criminal offending has occurred whilst under the influence of alcohol, and was due to hanging out with the wrong people. Ms VT indicated that she had only been present for one offending episode of the Applicant.
(iv)Ms VT stated that with respect to the Applicant’s drug and alcohol history, that he would go out most weekends with his friends following football and a have a few drinks, but rarely when they were together.
(v)Ms VT was of the view that the Applicant is remorseful for his conduct. She noted that he has previously sought help from a therapist in the past prior to his most recent incarceration, in addition to attending anger management classes and Alcoholics Anonymous meetings to try and educate himself. Ms VT is of the view the Applicant is committed to changing himself particularly given the impending birth of their child due later this year.
(vi)Ms VT indicated that she was not in a position to move to New Zealand with their child, as she is employed in a role which she believes does not permit her to move. She also stated that she would not be able to find comparable employment if she were to move to New Zealand, particularly with respect to her remuneration and seniority. Additionally, Ms VT raised doubts with respect to her studies. She is presently undertaking a Masters in Business and is unsure whether this course of study can be continued should she move to New Zealand. She also raised doubts as to her ability to afford the move given their child is due to be born soon, as she is currently working to pay for the medical costs associated with her fertility and pregnancy, in addition to the Applicant’s legal costs.
(vii)Ms VT stated that she is currently living with her parents and should the Applicant be deported, she would likely continue to do so as there is some support present in the area where she is presently residing (although she does not wish to continue living there). Ms VT also stated that the she was aware that deportation was a possibility for the Applicant prior to his most recent criminal proceedings which occurred in December 2020.
The Applicant’s former employer, Mr SL
[67] Exhibit G1, G9, pages 49 to 51.
The Tribunal heard evidence from the Applicant’s former employer on the first day of the hearing, who has provided a statement in support of the Applicant, in addition to an offer of future employment should the Applicant be allowed to remain in Australia[68]. With respect to the evidence of Mr SL, the Tribunal refers to the following summary[69]:
(i)Mr SL confirmed he was a director of the company from which he has made an offer of employment to the Applicant, should he be allowed to remain in Australia. Mr SL confirmed he had known the Applicant for approximately six to seven years, and that the Applicant had been working for him on and off during that period.
(ii)Mr SL stated the Applicant was a good worker, who was reliable and punctual. Mr SL confirmed that should the Applicant be deported to New Zealand, he would provide a reference for the Applicant to assist him in finding work.
The Applicant’s eldest sister, Ms AH
[68] Exhibit G1, G14, page 123.
[69] Transcript 16 August 2021, pages 52 and 53.
The Tribunal heard evidence from the Applicant’s eldest sister on the second day of the hearing, who also provided a statement in support of the Applicant[70]. With respect to the evidence of Ms AH, the Tribunal refers to the following summary[71]:
[70] Exhibit G1, G14, page 117; Exhibit A2.
[71] Transcript 17 August 2021, pages 59 to 64.
(i)Ms AH stated that she has a close relationship with her brother, which has only strengthened over time.
(ii)Ms AH described the Applicant as a “class clown”; someone who is very light-hearted and the life of the party.
(iii)Ms AH stated that she was unaware of the totality of the Applicant’s criminal offending, but opined that his criminal conduct was most likely the result of their poor childhood environment (i.e. exposure to domestic violence and a lack of attention from parental figures).
(iv)Ms AH believes the Applicant should remain in Australia because he would not have access to the same support network (i.e. extensive family and social ties) available to him in New Zealand, nor the ability to be a father to his child, due later this year. She stated that she was only aware of a handful of distant relatives who all reside in remote areas of New Zealand, but that her aunty (mother’s sister-in-law) would be willing to support the Applicant were he to be deported.
(v)Ms AH was aware that the Applicant had sought therapy but was not aware of what, if any, further rehabilitation the Applicant required to address his offending.
(vi)Ms AH stated that she would be very upset if the Applicant was to be deported as she would not be able to see him or offer him any support. She also stated that she feared the Applicant’s mental health would decline if he were to be removed from Australia.
(vii)Ms AH travels regularly (approximately once or twice per year) to New Zealand with her family to attend rugby matches and visit relatives. She indicated a desire to visit the Applicant in the event he were to be deported.
The Applicant’s sister, Ms ND
The Tribunal heard evidence from the Applicant’s sister on the second day of the hearing, who also provided a statement in support of the Applicant[72]. With respect to the evidence of Ms ND, the Tribunal refers to the following summary[73]:
(i)Ms ND described the Applicant’s relationship with her children as strong. She stated that he helped babysit them when he was younger and that he grew up with her oldest daughter. She also stated that the Applicant taught her youngest three boys how to play football and that he regularly attended social events with them.
(ii)Ms ND described the Applicant as a genuine, family orientated person who had gone down wrong path “a little bit”.
(iii)Ms ND was not aware of the extent of the Applicant’s criminal history but knew of his most recent offence. She stated that the Applicant’s criminal offending conduct was most likely caused by their poor childhood environment (i.e. exposure to domestic violence and an alcoholic father).
(iv)Ms ND stated that she believed the Applicant should be allowed to remain in Australia as he would be close to his support network. She also raised concerns as to the Applicant’s mental health and coping mechanisms were he to be removed from Australia.
(v)Ms ND stated that she will be adversely affected in the event the Applicant is deported as neither she, nor her children, would be able to see and speak with the Applicant face-to-face. In the event the Applicant were to be deported, Ms ND stated that she would try to visit him, but that it would be difficult due to work and financial limitations.
Primary Consideration 1 – Protection of the Australian community from criminal or other serious conduct
[72] Exhibit G1, G15, page 122.
[73] Transcript 16 August 2021, page 65 to 67.
Paragraph 8.1(1) of the Direction requires decision makers to keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. It further states that entering or remaining in Australia is a privilege that Australia confers on non-citizens, with the expectation that they are, and have been, law abiding; will respect important institutions; and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of the Direction requires decision makers to give consideration to the following requirements when determining the weight to be applied to Primary Consideration 1:
(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 making these assessments, it is necessary to have regard to the Applicant’s criminal history. The Applicant’s criminal offending history can be gleaned from the s501 G‑Documents[74], in addition to documents produced under summons[75] comprising:
[74] Exhibit G1.
[75] Exhibit R2.
(a) The Applicant’s criminal history in Australia which appears in a document
entitled, “Nationally Coordinated History Check Results” dated 1 February 2021[76];
[76] Exhibit G1, G9, pages 49 to 51.
(b) Sentencing remarks in the District Court of Queensland, 3 December
2020[77];
[77] Exhibit G1, G10, pages 52 to 55.
(c) Sentencing remarks in the District Court of Queensland, 30 August 2018[78];
[78] Exhibit G1, G10, pages 56 to 62.
(d) Sentencing remarks in the Magistrates Court of Queensland, 10 October
2012[79];
[79] Exhibit G1, G10, pages 63 to 65.
(e) Sentencing remarks in the District Court of Queensland, 31 May 2011[80];
[80] Exhibit G1, G10, pages 66 to 73.
(f) Verdict and Judgement report dated 3 December 2020[81];
[81] Exhibit G1, G11, page 81.
(g) Queensland Corrective Services, Integrated offender management system,
sentence calculation details report from the Queensland Department of Corrective Services dated 8 December 2020[82];
[82] Exhibit G1, G11, pages 82 and 83.
(h) International movement records of the Applicant from the Department of
Home Affairs[83];
[83] Exhibit G1, G18, pages 149 and 150.
(i) Documents produced under summons by Queensland Police Service of
various dates[84];
(j) Extract of documents produced under summons by the Office of the Director
of Public Prosecutions (Queensland) of various dates[85]; and
(k) Extract of documents produced under summons by the Queensland
Magistrate Court of various dates[86].
[84] Exhibit R2, R1, pages 1 to 36.
[85] Exhibit R2, R2, pages 37 to 58.
[86] Exhibit R2, R3, pages 59 to 62.
The nature and seriousness of the Applicant’s conduct
Upon a holistic review of the Applicant’s criminal offending record and other conduct, the Tribunal is of the view that the following considerations have application with respect to the nature and seriousness of the Applicant’s conduct, when applying paragraph 8.1.1(1) of the Direction: sub-paragraphs 8.1.1(1)(a)(i); 8.1.1(1)(b)(ii); 8.1.1(1)(c); 8.1.1(1)(d); and 8.1.1(1)(e).
The Tribunal is of the view that the remaining sub-paragraphs in paragraph 8.1.1(1) of the Direction are not relevant to the factual circumstances of the Applicant and are therefore of no weight and not determinative of any finding.
Sub-paragraph (a)(i) of paragraph 8.1.1(1) of the Direction directs decision makers, in considering a non-citizen’s offending or other conduct, to have regard to (without limiting the range of conduct that may be considered very serious) violent and/or sexual crimes. The Direction further states that offending or other conduct of this nature is viewed very seriously by the Australian Government and the Australian community.
The Tribunal has previously outlined in detail portions of the Applicant’s criminal history which leaves no doubt in the Tribunal’s mind that sub-paragraph 8.1.1(1)(a)(i) of the Direction is enlivened with respect to the Applicant’s conduct and the commission of violent crimes (observing that the Applicant has not committed any sexual crimes).
The Applicant has a long history of violent criminal convictions which have been accumulated over many years, often as the result of his intoxication. In summary, the Applicant’s violent conduct has included convictions for:
(i)Grievous bodily harm, committed in July 2018, convicted in December 2020: where the Applicant’s conduct involved punching a victim in the face, whereby the victim sustained significant injuries resulting in three lower incisor teeth being pushed backwards out of their sockets and a five millimetre puncture to the victim’s lower lip (resulting in the victim being referred to an endodontist with reports indicating that if left untreated, the victim would have lost these teeth)[87].
(ii)Grievous bodily harm, committed in July 2016, convicted August 2018: where the Applicant was involved in what was described as a serious case of criminal negligence. The Applicant was found to have used a pool cue with a high degree of negligence when he pushed the butt of the pool cue in the direction of the victim with such force that closed circuit television footage shows the victim falling backwards a considerable distance. This resulted in the victim suffering sustained bruising and swelling in their right eyelid with tenderness in the eye area, suffering right medial and inferior orbital blowout fractures with herniation of medial and inferior rectus muscles. The victim required three surgeries because of continued double vision as a result of the injuries which they suffered, and at the time of sentencing in August 2018 continued to suffer ongoing issues with respect to double vision[88]. Whilst the Tribunal accepts the submission of the Applicant that he did not intend to hit the victim and that the conviction was the result of the Applicant’s sloppy handling of the pool cue; the Tribunal agrees with the tenor of the Respondent’s submissions that the conviction was nonetheless violent in nature[89].
(iii)Common assault, committed in April 2012, convicted in October 2012: for the Applicant’s conduct involving him spitting on the face and chest of a victim[90].
(iv)Two counts of assaults occasioning bodily harm whilst in company, committed in November 2007, convicted in May 2011: for the Applicant’s conduct involving kicking the body of a victim whilst another offender was kicking that victim in the head, in addition to standing by whilst three to five other offenders were involved in a physical altercation with another victim[91].
(v)Assaults occasioning bodily harm, committed in September 2007, convicted December 2007: for the Applicant’s conduct involving kicking a security guard in the head[92].
(vi)Assaults occasioning bodily harm, committed in March 2006, convicted in September 2006: for the Applicant’s conduct involving punching a victim in the right side of their head with a closed fist, causing the victim to sustain swelling and bruising to the right eye area and a small cut directly beneath the eye[93].
[87] Exhibit G1, G10, page 53.
[88] Exhibit G1, G10, page 57.
[89] Exhibit A1, page 7, paragraph 27(c); Exhibit R1, page 6, paragraph 21.2.
[90] Exhibit R2, R2 page 63.
[91] Exhibit G1, G10, page 70; Exhibit R2, pages 37 to 45.
[92] Exhibit R2, R1, page 29.
[93] Exhibit R2, R1, pages 35 and 36.
Whilst the Applicant has conceded in submissions before the Tribunal that aspects of their offending conduct have been violent and must be viewed “seriously”[94], the Tribunal is of the view that the escalating nature of the Applicant’s violent conduct should be viewed very seriously with respect to the application of sub-paragraph 8.1.1(1)(a)(i) of the Direction. The Tribunal forms this view given the lengthy nature of the Applicant’s criminal history and the numerous convictions for violent offences which the Applicant has received.
[94] Exhibit A1, page 6, paragraph 25.
Sub-paragraph (b)(ii) of paragraph 8.1.1(1) the Direction requires decision makers to consider the types of crimes or conduct committed by the non-citizen, without limiting the range of conduct that may be considered serious. Relevant to the present application, sub‑paragraph 8.1.1(1)(b)(ii) states, “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.”
[Tribunal underline for emphasis].
Earlier in these reasons, the Tribunal referred to an incident involving the Applicant which resulted in a conviction and sentence for assault or obstruct police officer licensed premises in March 2019. Queensland Police records describe the Applicant as continuing to tense his arm in order to try and prevent the attending police from handcuffing them[95].
[95] Exhibit R2, R3, page 59.
The Tribunal observes that there are numerous references within the police records of the Applicant showing a general level of disrespect towards police performing their duties, referring to them as “pigs” and other obscene profanities on several occasions[96]. Whilst the Tribunal accepts that this conduct may not attract the application of this sub-paragraph 8.1.1(1)(b)(ii) of the Direction, it does, in the Tribunal’s mind, highlight the nature of the Applicant’s conduct towards police officers performing their duties.
[96] Exhibit R2, pages 13 and 17.
The Tribunal accepts the Applicant’s submissions that his offending conduct falls at the lower end of the scale of seriousness with respect to this consideration[97], however it does nonetheless attract the application of sub-paragraph 8.1.1(1)(b)(ii) of the Direction.
[97] Exhibit A1, page 7, paragraph 31.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision maker to give consideration to the sentence imposed by the Courts for a crime or crimes, with the exception of the crimes or conduct mentioned (relevantly) in sub-paragraph 8.1.1(1)(a)(ii) and (iii), and 8.1.1(1)(b)(i) (each of which are not relevant to the Applicant’s factual circumstances).
The Applicant arrived in Australia as an infant in April 1989 and has spent the majority of his life residing in Australia. His criminal offending history did not commence until he was an adult, with his first appearance before lawful authority occurring in September 2006, when he was 18 years of age[98].
[98] Exhibit G1, G9, page 51.
The Applicant has appeared before lawful authority on 19 separate occasions for 23 offences, six of which resulted in sentences of imprisonment being handed down upon the Applicant.
Prior to custodial sentences being handed down upon him, the Applicant has benefited from numerous no conviction recorded notations on his criminal history. Additionally, he has received fines, intensive correctional orders, community service and probation. Upon reflection of the Applicant’s criminal history, it seems that none of these sentencing options have had a deterrent effect on the Applicant’s criminal conduct as he has gone on to offend very seriously after receiving these non-custodial sentences.
Sentences of imprisonment are the final resort in the sentencing hierarchy. The Applicant’s criminal conduct has resulted in the sentencing of custodial terms of more than five cumulative years. The Tribunal acknowledges that parole release dates have come into operation, thereby reducing the total time the Applicant has spent in criminal custody.
Whilst the Applicant has made submissions with respect to mitigating factors regarding the custodial sentences imposed by the Courts, the Tribunal is of the view that a holistic consideration of the custodial sentences imposed on the Applicant’s conduct by the Courts reflects the very serious nature of the Applicant’s offending, with respect to the application of sub-paragraph 8.1.1(1)(c) of the Direction.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction requires a decision maker to give consideration to the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness.
The Tribunal is of the view that the Applicant’s criminal offending conduct is indeed frequent, and has become increasingly more serious over time.
From the ages of 18 to 32, the Applicant appeared before lawful authority on 19 separate occasions for 23 offences. The Tribunal regards the volume of the Applicant’s appearances for sentencing and the volume of offences for which he has been convicted of to be frequent in nature.
Further, the Tribunal is of the view that the Applicant’s criminal offending has objectively become more serious over time, when one considers the evolution of the nature of the Applicant’s conduct with respect to the level of violence exhibited. The Applicant, in the earlier years of his offending (2006 to 2012), was convicted of offences which involved[99]:
(i)punching a victim in the face;
(ii)kicking a security guard in the head;
(iii)spitting at a victim in their face and chest; and
(iv)kicking a victim’s body and watching on as other offenders were involved in a physical altercation with another victim.
[99] Exhibit R2, R3, page 61; Exhibit G1, G10, page 70; Exhibit R2, R2, pages 37 to 45; Exhibit R2, R1, page 29; and Exhibit R2, R1, pages 35 to 36.
This has later evolved into more serious violent incidents perpetrated by the Applicant (2016 to 2018) resulting in victims sustaining serious injuries, such that one victim in 2016 required three surgeries to correct double vision in their eye as a result of injuries sustained from the Applicant’s negligent use of the butt of a pool cue[100].
[100] Exhibit G1, G10, page 57.
Additionally, a victim in 2018 had three lower incisor teeth pushed backwards out of their sockets and had a five millimetre puncture to their lower lip as a result of the Applicant punching them[101]. In the Tribunal’s mind, the evolution of the Applicant’s criminal conduct has indeed become more serious over time.
[101] Exhibit G1, G10, page 53.
The Tribunal is of the view that the Applicant’s conduct warrants the application of sub-paragraph 8.1.1(1)(d) of the Direction and finds that the nature and seriousness of the Applicant’s conduct ought to be considered very serious.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction requires a decision maker to give consideration to the cumulative effect of repeated offending of the non-citizen.
The Applicant’s criminal offending history spans some 14 years (2006 to 2020), with 19 separate appearances before lawful authority regarding 23 offences. Undoubtedly, there has been a significant amount of community resourcing required to bring the Applicant to account for his offending conduct, in addition to the impact the Applicant’s offending has had on the community and his victims.
The Tribunal views the cumulative effect of the Applicant’s criminal conduct enlivens the application of sub-paragraph 8.1.1(1)(e) of the Direction, such that the nature and seriousness of the of the Applicant’s offending conduct is very serious.
Having regard to all of the evidence and submissions made to the Tribunal, as they apply to the relevant sub-paragraphs 8.1.1(1)(a)(i), 8.1.1(1)(b)(ii), 8.1.1(1)(c), 8.1.1(1)(d) and 8.1.1(1)(e) of the Direction, the Tribunal is of the view that overall, the nature of the Applicant’s criminal and other conduct can be characterised as very serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Relevant to the present application, paragraph 8.1.2(2) of the Direction requires a decision maker to consider the following factors on a cumulative basis when considering the risk to the Australian community:
(1)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(2)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)Information and evidence on the risk of the non-citizen re-offending; and
(ii)Evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct
With respect to assessing the nature of harm to individuals in the Australian community should the Applicant further engage in criminal or other serious conduct, the Tribunal observes that there is a pattern of violent offences committed by the Applicant which have caused very serious physical and psychological injuries to his victims.
The Tribunal is of the view that upon reflection of the written and oral evidence, were the Applicant to engage further in the type of criminal or other serious conduct which he has committed in the past, the nature of the harm to potential future victims is likely to be significant and to cause them physical and/or psychological harm.
The Tribunal agrees with the Respondent’s contention that there is an additional, ongoing broader impact felt by the Australian community with respect to the financial impost born by health systems and the cost of justice[102].
[102] Exhibit R1, page 9, paragraph 27.
In the Applicant’s most recent sentencing episode which occurred in the District Court of Queensland in December 2020, their Honour remarked the following with respect to potential harms which could be caused from conduct in cases similar to that of the Applicant’s conviction for grievous bodily harm,. Their Honour stated that there was[103]:
“… a need for general deterrence in cases like this and it is all too prevalent in the community for, particularly young men, who are intoxicated to start fighting and punching people. The injuries can be quite severe up to and including death…”
[Tribunal underline for emphasis]
[103] Exhibit G1, G10, pages 54 and 55.
The Tribunal views the nature of the harm which could result from the Applicant engaging in further criminal or other serious conduct to be to be particularly serious, and has had regard to the principle outlined in paragraph 8.1.2(1) of the Direction which states:
“In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.”
[Tribunal underline for emphasis]
The Tribunal is of the view that the harm which could be caused by the Applicant, should his past conduct be repeated, is so serious that any risk it may be repeated is unacceptable to the Australian community.
The likelihood of the Applicant engaging in further criminal or other serious conduct
The Tribunal observes that there is no expert medical or psychological evidence with respect to any assessment of the Applicant’s risk of re-offending. The only medical evidence before the Tribunal is a psychological pre-sentencing report dated 1 December 2020, from Mr Peter Perros, Forensic Psychologist and Clinical Neuropsychologist, which was prepared to assist the most recent criminal proceedings involving the Applicant in December 2020[104].
[104] Exhibit R2, R2, pages 53 to 58.
The Tribunal notes that Mr Perros was not called to give evidence before the Tribunal, and the content of his report was not tested during the course of the hearing. Any weight the Tribunal may afford Mr Perros is thereby limited. With this in mind, the Tribunal observes the following opinions expressed by Mr Perros[105]:
“… he [the Applicant] needs professional help for his anxiety and maladaptive use of alcohol… There is a chance [the Applicant] will respond to a clinical psychological intervention… The current level of alcohol consumption is unclear; this is best addressed by [the Applicant]’s general practitioner. Given the chronicity of the alcohol abuse, there may be a role for Antabuse or Campral therapy; this may require a psychiatric opinion… He has traits of anxiety and when a teenager sought acceptance from his mates by fitting in with them (drinking, drugs), which also helped him to adjust to his parents breaking up… [The Applicant] likely developed a traumatic distress at 26 when he discovered his father had been molesting his younger sister (who has [a medical condition])… He has witnessed trauma at home as a child, mostly protected by his sisters… There [sic] enough extenuating circumstances to suggest that effective treatment should reduce risk of recurrence of this kind of offending…”
[Tribunal redactions]
[105] Exhibit R2, R2, pages 57 and 58.
Past triggers related to the Applicant’s offending, as mentioned by Mr Perros in his report, have been referred to by the Applicant in his oral and written submissions and were also raised by witnesses Ms AH and Ms ND who appeared before the Tribunal. These triggers included the:
(i)circumstances of the Applicant’s up-bringing, with respect to the abuse by the Applicant’s father towards the Applicant’s mother, witnessed by the Applicant and his siblings growing up; and
(ii)later realisation by the Applicant of the abuse his sibling suffered, with respect to discovering the Applicant’s father had allegedly committed acts involving molestation.
In written submissions made to the Respondent, which are before the Tribunal and made in oral submission at the hearing, the Applicant stated that he was subject to abuse at the hands of his mother throughout his childhood[106]. In the Tribunal’s view, it is these circumstances of the Applicant’s past which provide context for the Applicant’s substance abuse issues that have existed alongside much of his offending conduct.
[106] Exhibit G1, G17, pages 142 and 143.
During the hearing the Applicant described his substance abuse issues as something he needed to work on if he was to be allowed to remain in Australia. The Tribunal refers to the following exchange[107]:
“Ms Samuta: You mentioned earlier that you need to stop drinking. Have you undertaken any efforts or made any rehabilitation since being sentenced?
Applicant: ---I've done some courses, some classes while being in the detention centre. Nothing outside of this facility as yet.
…
Ms Samuta: Can you tell me what steps you need to take to change your life?
Applicant: ---Stop drinking. I need to stop drinking. I need to seek professional help. Yes.”
[107] Transcript 16 August 2021, page 8, lines 21 to 29, and lines 41 and 42.
The Tribunal observes that the Applicant’s last criminal offences (grievous bodily harm and assault or obstruct police officer licenced premises) were committed in July 2018. The Applicant was sentenced in December 2020, after which he has been in either criminal custody or immigration detention. During the time the Applicant committed his last offences and in the period until sentencing in December 2020, there is no corroborative evidence before the Tribunal that he has sought to engage in any formal rehabilitation (aside from oral submissions of the Applicant and witnesses called by the Applicant).
A report prepared for the Office of the Director of Public Prosecutions dated 2 November 2020 states that the Applicant did not provide evidence of engagement with clinicians for their mental health or substance abuse issues, despite having been encouraged to do so[108]:
“… Throughout the period of the Order [the Applicant] was encouraged to engage with a psychologist to address mental health and substance use concerns. [the Applicant] did not provide any evidence of engagement during the order period… [the Applicant] remained resistant towards intervention…”
[Tribunal redactions]
[108] Exhibit R2, R1, pages 51 and 52.
The Tribunal further observes that this report also states that the Applicant had, on one occasion, returned a positive result for methylamphetamine and amphetamine[109]. The Tribunal notes the Applicant has admitted to using methylamphetamines, ecstasy and cannabis in the past.
[109] Ibid.
The Tribunal heard evidence from the Applicant as to his rehabilitation efforts. The Applicant stated that he participated in some classes and sessions whilst incarcerated and subsequently detained in immigration detention. This included attending Alcoholics Anonymous meetings whilst incarcerated and attending a mental health program “a few times” whilst in immigration detention[110].
[110] Transcript 16 August 2021, page 28, lines 31 to 42.
During the hearing the Applicant claimed to have undertaken an anger management course, “a few years ago”[111]. Aside from the courses and meetings mentioned by the Applicant (for which there is no evidence of participation before the Tribunal), the Applicant claimed that he had seen a psychologist. Under further cross examination by the Tribunal, it became evident that this psychologist was in fact Mr Perros. The session with Mr Perros was primarily for the purpose of preparing a pre-sentencing report for his most recent set of criminal proceedings in December 2020[112].
[111] Transcript 16 August 2021Ibid, page 32, line 4.
[112] Transcript 16 August 2021Ibid, page 26, lines 11 to 35.
When the Tribunal questioned the Applicant as to the last time he had consumed alcohol he mentioned that it was the weekend before he went into criminal custody in December 2020, but that he had not consumed alcohol whilst in criminal custody or immigration detention[113].
[113] Transcript 16 August 2021, page 28, lines 11 to 17.
The Tribunal reflected upon the evidence of Ms VT, where she stated that the Applicant, “goes out on most weekends and is with his friends… and after football would have a few drinks. Other than that, like, the majority of the time when he’s out we’re not out together…”[114]. This evidence stood in contrast to that of the Applicant when the Tribunal asked the Applicant to describe his use of alcohol, the Tribunal refers to the following exchange[115]:
[114] Transcript 16 August 2021, page 48, lines 25 to 30.
[115] Transcript 16 August 2021, page 27, lines 30 to 46.
Senior Member: “All right, then. How would you describe your use of alcohol?
Applicant: For the last probably five years it’s just been on special occasions, just like friend’s parties or a friend’s birthday, things like that. It would be a very rare occasion when I’ve had a drink but when I do go to - - -
Senior Member: Sorry, you said it would be a very rare occasion when I?
Applicant: When I do go out, like, out to a pub or somewhere.
SeniorMember: Okay. Do you accept on some of these very rare occasions it’s resulted in incidents where you’ve subsequently been charged with assaults?
Applicant: Yes. So within the last five years it would very occasionally that I’ve gone out.
SeniorMember: When you say very occasionally, what do you mean? How many times a year?
Applicant: Maybe like once or twice a year.
Senior Member: In the last five years?
Applicant: Yes.”
When one compares the evidence of the Applicant to his partner Ms VT, the Tribunal is of the view that the Applicant has sought to minimise his use of alcohol during social occasions.
With respect to the Applicant’s claim that he will abstain from the future use of alcohol, the Tribunal observes that this has not been tested in an uncontrolled environment, as the Applicant has either been incarcerated or in immigration detention since December 2020 (observing that the Applicant admitted to drinking alcohol up until the point of incarceration).
The Tribunal observes that sub-paragraph 8.1.2(2)(b)(ii) of the Direction states that decision makers should not delay decisions in order for rehabilitative courses to be undertaken and weight should be given to time spent in the community since their most recent offending. Evidence before the Tribunal is that the Applicant continued to consume alcohol up until the point of their incarceration, with limited evidence to suggest he had sought rehabilitation, with parole reports stating that the Applicant was at least in December 2020, “…resistant towards intervention…”[116].
[116] Exhibit R2, pages 51 and 52.
The Applicant has submitted to the Tribunal the following protective factors which he states will mitigate against future offending of any kind[117]:
(a) the significant deterrent effect of the term of imprisonment the Applicant is currently serving;
(b)the significant deterrent effect of the newfound knowledge of the consequences of visa cancellation, being that he may be removed from the country that he has lived in since infancy and subsequently separated from all of his familial supports (who live in Australia);
(c)the Applicant has a stable partner, Ms VT, who provides a solid support and who is available in the Applicant’s efforts to rehabilitate;
(d)the Applicant’s mother-in-law will assist the Applicant in receiving therapy and support in order to rehabilitate;
(e)that the Applicant has friends who are willing to help with emotional and financial support, as well as employment (if needed);
(f)the Applicant would be able to obtain employment upon his release into the Australian community; and
(g)the Applicant and his partner are expecting their first child and that the Applicant is committed to being a positive role model in his child’s life.
[117] Exhibit A1, pages 8 and 9, paragraphs 37 and 38.
Whilst the Tribunal accepts the remorse expressed by the Applicant, the Tribunal does not have before it independent evidence from a suitably qualified clinician verifying any deterrent effect from his incarceration, or the realisation that he could be subject to deportation as a result of the sentences of imprisonment handed down for his criminal convictions. There is nothing to indicate that the deterrent effect is such that: (1) the Applicant’s risk of recidivism has been reduced to an acceptable level; and (2) that the factors which lead to the Applicant’s risk of recidivism (e.g. alcohol consumption) are under remedial management and control such that the Applicant’s risk of recidivism has been reduced to an acceptable level.
With respect to the support the Applicant will receive from Ms VT, Ms VT’s mother, the Applicant’s friends (who may assist emotionally and financially and the offer of future employment from his past employer), these support networks have been available to the Applicant in the past, yet did not prevent him from offending.
To the extent that the impending birth of the Applicant’s child with his partner will mitigate against future offending by the Applicant, this, in the Tribunal’s mind, is subjective. In the Tribunal’s view, limited weight can be afforded to this contention in light of: (1) the lengthy history of the Applicant’s criminal offending; (2) the numerous opportunities provided to the Applicant from non-custodial sentences to moderate his behaviour and address the issues causing him to offend; and (3) the level of maturation with respect to the Applicant’s age when offending.
In assessing the evidence before it, the Tribunal agrees with the Respondent’s contention that, “…Unless and until the applicant can abstain from abusing alcohol, his risk of re-offending remains a real possibility…”[118].
[118] Exhibit R1, page 10, paragraph 28.8.
The Tribunal finds that there is a significant likelihood of the Applicant re-offending due to the incomplete nature of his rehabilitation with respect to factors leading to his risk of recidivism.
122.The Tribunal observes sub-paragraph 8.1.2(c) of the Direction is not relevant to the circumstances of the Applicant.
Conclusion: Primary Consideration 1
The Tribunal has had regard to the provisions of paragraphs 8.1.1 and 8.1.2 of the Direction, as well as the principles outlined in paragraph 5.2.
The Tribunal has made detailed findings with respect to the Applicant’s criminal history, observing that the Applicant has failed to be law abiding, has not shown respect for important Australian institutions, and has caused harm to individuals in the Australian community.
The Tribunal considers the nature and seriousness of the Applicant’s criminal offending and other conduct to be of a very serious nature.
The Tribunal considers that should the Applicant engage in further criminal or other serious conduct of the type that he as in the past, the nature of the harm to individuals is likely to be significant, with physical and/or psychological harm also likely. The Tribunal is of the view that the harm which could be caused by the Applicant, should their past conduct be repeated, is so serious, that any risk it may be repeated is unacceptable to the Australian community.
The Tribunal’s view is that there is a significant likelihood of the Applicant re-offending due to the incomplete nature of his rehabilitation with respect to factors leading to his risk of recidivism.
In consideration of the evidence, and each of the relevant considerations within Primary Consideration 1 of the Direction, the Tribunal finds that Primary Consideration 1 weighs very heavily in favour of non-revocation.
Primary Consideration 2: Family violence committed by the Applicant
Sub-paragraph 8.2(1) of the Direction requires decision makers to consider acts of family violence committed by the Applicant, and stipulates that the Government has, “serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen”.
Sub-paragraph 8.2(2) of the Direction requires decision makers to give consideration to the Applicant’s circumstances where:
(a)the Applicant has been convicted of an offence, found guilty of an offence, or had charges proven however so described, that involve family violence; and/or
(b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under s501 or section 501CA (of the Migration Act) has been afforded procedural fairness.
Sub-paragraph 8.2(3) of the Direction outlines a series of factors which decision makers must consider (where relevant).
Upon a holistic review of the Applicant’s criminal offending record and other conduct, the Tribunal is of the view that the factual circumstances of the Applicant do not attract the Application of Primary Consideration 2 of the Determination. The Tribunal notes that this was also the position of the Applicant and Respondent[119].
[119] Exhibit A1, page 10, paragraph 42; and Exhibit R1, page 10, paragraph 30.
Conclusion: Primary Consideration 2
However, tempering the above, the Tribunal has made the following findings with respect to the Applicant’s criminal history, that it:
(i)is lengthy, with the Applicant’s first appearance before lawful authority occurring in 2006, and his last appearance occurring in 2020;
(ii)was frequent (with 19 appearances before lawful authority for 23 offences over the period of 2006 to 2020);
(iii)has become more serious over time; and
(iv)was violent in nature (With the view that it evolved from his earlier convictions, which included spitting at a victim in their face and chest and kicking another victim, to more serious criminality, reflected by the injuries inflicted upon the victims of the Applicant’s most recent criminal conduct. In one instance, a victim required three surgeries to repair double vision in one of their eyes and another victim had three of their teeth pushed backwards out of their sockets).
There is no doubt in the Tribunal’s mind that the above findings indicate the Applicant has failed to be law abiding, failed to show respect for important Australian institutions, and has caused harm to individuals in the Australian community.
The Tribunal earlier found that there is an unacceptable risk of the Applicant re-offending due to the incomplete nature of his rehabilitation with respect to factors leading to his risk of recidivism.
Further to this, the Tribunal has found that, should the Applicant engage in further criminal or other serious conduct of the type that he has in the past, the nature of the harm to individuals is likely to be significant, and cause physical and/or psychological harm.
On balance, the Tribunal is of the view that the violent nature of the Applicant’s past criminal conduct, including the unresolved nature of the issues causing him to offend, have tipped the scales as to the expectations of the Australian community with respect to any tolerance the Australian community may have afforded the Applicant, such that principle 5.2(5) of the Direction is engaged:
“… in some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation…”
Conclusion: Primary Consideration 4
Upon consideration of all the relevant factors, the Tribunal is of the view that Primary Consideration 4 weighs heavily in favour of non-revocation of the cancellation of the Applicant’s Visa.
Other Considerations
It is necessary for the Tribunal to look at the Other Considerations listed at paragraph 9 of the Direction. The Tribunal will now consider each of the four stipulated sub-paragraphs 9.1 to 9.4 of the Direction.
International non-refoulement obligations
Paragraph 9.1 of the Direction requires decision makers to consider international non‑refoulement obligations.
The Tribunal observes that when the Applicant completed their Personal Circumstances Form and provided it to the Respondent, they indicated “Yes” when asked if they held any concerns or fears about what would happen to them upon return to New Zealand. The Applicant stated the following, “I fear that I will be forced into gang activity”[133].
[133] Exhibit G1, G13, page 107.
The Applicant was questioned during cross-examination as to the veracity of their claims regarding any specific fear of harm if returned to New Zealand as a result of their claims they will be “forced” into gang activity, with the Applicant stating that he did not hold any specific fear, but that the fear was more general in nature[134].
[134] Transcript 16 August 2021, page 37, lines 14 to 29.
The Tribunal is of the view that the Applicant has not raised any particularised claim that his removal to New Zealand would engage any of Australia’s non-refoulement obligations.
The Tribunal is of the view that the characterisation of the threats made by the Applicant are such that if the Applicant were returned to New Zealand (which is a developed country, with comparable services to that of Australia), the government and relevant organisations (for example, police) would be capable of protecting the Applicant from any generalised fear held by the Applicant.
For completeness, the Tribunal observes in submissions to the Tribunal the Applicant submitted that International non-refoulement obligations were not relevant to his circumstances[135].
[135] Exhibit A1, page 12, paragraph 54.
The Tribunal has had regard to the requirements of paragraph 9.1 of the Direction, and notes that the receiving country of the Applicant is New Zealand. The Tribunal is satisfied that Australia’s non-refoulement obligations are not engaged in relation to the Applicant.
Extent of impediments if removed
Paragraph 9.2 of the Direction directs decision makers to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) the non-citizen’s age and health;
(b) whether there are substantial language or cultural barriers; and
(c) any social, medical and/or economic support available to them in that country.
198.The Applicant is presently 33 years of age and did not indicate any health concerns to the Respondent in their Personal Circumstances Form[136], nor did he disclose any when the Tribunal asked him during the hearing[137].
[136] Exhibit G1, G13, page 106.
[137] Transcript 16 August 2021, page 37, lines 31 to 45; page 38, lines 1 and 2.
199.The Tribunal acknowledges that Dr Perros’ pre-sentencing report in December 2020 contained references to the Applicant attempting self-harm after being charged with his most recent set of criminal proceedings, but the report states the Applicant said that he was not suicidal[138]. The Tribunal specifically questioned the Applicant during the hearing as to whether he was on any medications or had been diagnosed with medical or psychological conditions. The Applicant indicated he was not being treated with any medications or by a doctor or health professional, although he did claim that Dr Perros had diagnosed him with a borderline personality disorder[139]. The Tribunal observes that this was not corroborated in the evidence before the Tribunal.
[138] Exhibit R2, R2, page 57, paragraphs 51 and 52.
[139] Transcript 16 August 2021, page 37, lines 30 to 45; page 38, lines 1 and 2.
In any event, the Tribunal observes that should the Applicant be deported to New Zealand, he would have similar access to health care and rehabilitation services comparable to those available in Australia. In this regard, the Tribunal refers to the decision of Tera Euna and Minister for Immigration and Border Protection[140], where Senior Member Kelly stated that:
[140] [2016] AATA 301 at [101].
“New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the applicant if he returns to New Zealand... New Zealand has comparable standards of health care, social welfare and housing support to those in Australia. The applicant will have access to those services as a New Zealand citizen.”
201.Should the Applicant be deported to New Zealand, he would suffer no language or cultural barriers. Any hardships the Applicant may face (emotional, financial, or otherwise) with resettlement would likely be temporary until he is able to establish himself and potentially re-connect with distant relatives. With respect to finding work, the Tribunal observes that the Applicant stated he as a Certificate III in Building and Construction[141], and that his former employer Mr SL would provide a reference for him should he face deportation[142]. As the Applicant is still relatively young at 33 years of age, it is not unreasonable to assume that he would be able to reinvolve himself in the concreting industry in New Zealand should he be deported.
[141] Transcript 16 August 2021, page 7, lines 22 to 23.
[142] Transcript 16 August 2021, page 53, lines 16 to 23.
The Tribunal is of the view that the Applicant has failed to substantiate his general concerns with respect to the harms which he states he would face should he be returned to New Zealand (that he would be “forced into gang activity”)[143]. The Tribunal notes the Applicant has not tendered any objective evidence to substantiate such claims.
[143] Exhibit G1, G13, page 107.
The Tribunal observes the reasons of Deputy President Sosso, in VKTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)[144], where he made the following observation with respect to the support applicants would receive should they be returned to New Zealand (with similar concerns regarding fear of harm due to involvement in gangs):
[144] [2020] AATA 649 (20 March 2020) at [352].
“New Zealand is a prosperous modern democracy with a high standard of living and an ordered and civil society. It has an advanced social security regime which offers those in need support and guidance. It has a judicial system and law enforcement agencies of the same calibre and type as Australia. In short, the Applicant would have the same level of material and legal support in New Zealand as he would have in Australia. Indeed, as a citizen of New Zealand, he may receive even more support than he would receive in Australia as a non-citizen.”
204.The Tribunal acknowledges that the Applicant has stated that he is not familiar with his family that currently reside in New Zealand[145], and that his family remains in Australia, including his partner and child due to be born later this year. However, these are not, strictly speaking, factors which will impede the Applicant in establishing himself and maintaining living standards in that country. The Tribunal will consider these matters in relation to Other Considerations, Strength, nature and duration of ties to Australia.
[145] Transcript 16 August 2021, page 12, lines 11 to 16; page 16, lines 43 to 47; page 17, lines 1 to 3.
205.In view of all the factors the Tribunal has outlined with reference to this Other Consideration in paragraph 9.2 of the Direction, on balance the Tribunal is of the view that this consideration is of a slight measure of weight in favour of the Applicant such that his Visa is restored to him and he able to remain in Australia.
The Tribunal qualifies this finding by confirming that the weight the Tribunal has attributed to this Other Consideration does not in any way outweigh the very heavy weight the Tribunal has attributed to Primary Consideration 1, supported by the heavy weight the Tribunal has attributed to Primary Consideration 4.
Impact on victims
Paragraph 9.3 of the Direction requires decision makers to take into account the impact of the decision not to revoke the Applicant’s visa pursuant to s501CA of the Migration Act, on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
In the absence of any evidence submitted to the Tribunal for consideration with respect to the impact of non-revocation on the victims of the Applicants offending, the Tribunal cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s Visa and is neutral.
Links to the Australian community
Paragraph 9.4 of the Direction states that decision makers must have regard to sub‑paragraphs 9.4.1 and 9.4.2 of the Direction, which consider the strength, nature and duration of ties of the Applicant to Australia, and any impact on Australian business interests.
Strength, nature and duration of ties to Australia
Sub-paragraph 9.4.1(1) of the Direction requires decision makers to consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
In terms of applying sub-paragraph 9.4.1(1) of the Direction to the circumstances of the Applicant, the Tribunal has had regard to the written and oral evidence submissions from the Applicant’s partner Ms VT[146], sisters Ms AH[147] and Ms ND[148], and the mother of Ms VT[149].
[146] Exhibit G1, G14, pages 109 to 114; and Exhibit A2.
[147] Exhibit G1, G15, page 117.
[148] Exhibit G1, G15, page 122.
[149] Exhibit G1, G15, pages 118 and 119.
The Tribunal accepts that should the Applicant be deported, the impact of this upon Ms VT would cause her to experience emotional and financial hardship, in addition to the stress of raising a newborn without the Applicant present (although she has stated she would receive assistance from her family[150]). The Tribunal observes that Ms VT is an Australian citizen and the Applicant’s soon to be born child would also be an Australian citizen[151].
[150] Transcript 16 August 2021, page 48, lines 5 to 19.
[151] Exhibit A3.
The Tribunal accepts that the mother and father of Ms VT would suffer emotional hardship should the Applicant be deported to New Zealand. The Tribunal acknowledges the submissions of Ms VT’s mother who stated that should the Applicant be deported it would, “destroy a family and a future for my daughter, their child and her hopes and dreams”[152].
[152] Exhibit G1, G15, page 119.
With respect to the Applicant’s siblings (and their relevant partners) the Tribunal accepts they too would suffer emotionally, should the Applicant be deported, and acknowledges they have an indefinite right to reside in Australia as New Zealand citizens in Australia[153].
[153] Exhibit G1, G15, page 117; Exhibit G1, G15, page 122; Exhibit G1, G13, page 103.
The Tribunal accepts that the minor nieces and nephews of the Applicant’s siblings, Ms AH and Ms ND, would suffer emotionally should the Applicant be deported. The Tribunal acknowledges that this would equally apply to the adult daughter of Ms ND (who is 22 years of age) whom the Applicant stated he had a close relationship with[154]. The Tribunal acknowledges that the relevant nieces and nephews of the Applicant are Australian citizens[155].
[154] Transcript 16 August 2021, page 11, lines 28 to 46.
[155] Exhibit G1, G13, page 101.
The Tribunal has had regard to the impact of the decision regarding deportation of the Applicant with respect to his immediate family members in Australia and is of the view that the application of sub-paragraph 9.4.1(1) of the Direction is of a strong weight in favour of the Applicant remaining in Australia.
Sub-paragraph 9.4.1(2) of the Direction requires a decision maker to give consideration to the strength, nature and duration of any other ties that the non-citizen has to the Australian community, and in doing so a decision maker must have regard to:
(a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, nothing that:
(i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
The Tribunal observes the Applicant first arrived in Australia as an infant and has largely remained in Australia for the entirety of his life, aside from six short occasions where he returned to New Zealand. On the last occasion the Applicant was 26 years of age[156].
[156] Exhibit G1, G18, pages 149 and 150.
The Tribunal accepts that the Applicant’s criminal history did not commence until he was 18 years of age. That was a lengthy period after having arrived in Australia with his family as an infant. In view of this, the Tribunal has not limited the weight afforded to the Applicant with respect to sub-paragraph 9.4.1(2)(a)(i) of the Direction.
With respect to the Applicant’s evidence regarding time he has spent contributing positively to the Australian community, the Tribunal acknowledges the Applicant’s submission that:[157]
[157] Exhibit A1, page 13, paragraph 61(b).
“…both prior to engaging in the Offending Conduct and after being arrested, the Applicant has positively contributed to the Australia community by exhibiting a strong work ethic in his field [of] concreting”.
[Tribunal insertion]
This submission is supported to some extent by the evidence of the Applicant’s former employer Mr SL, who said the Applicant was a good employee for the periods he was employed.[158] In this regard, the Tribunal observes the Applicant has only worked for Mr SL during the following periods: September 2016 to December 2017; August 2018 to November 2019; and October 2020 to December 2020[159]. Beyond this evidence, there is nothing else to confirm the Applicant’s employment history.
[158] Transcript 19 August 2021, page 52, lines 28 to 30.
[159] Exhibit G1, G3, page 123.
The Tribunal is of the view that a slight measure of weight should be afforded to the Applicant in terms of applying sub-paragraph 9.4.1(2)(a)(ii) of the Direction on the basis of the Applicant’s employment history.
Sub-paragraph 9.4.1(2)(b) of the Direction states that decision makers must have regard to the strength, duration and nature of any family or social links the non-citizen may have with Australian citizens, Australian permanent residents, or people who have an indefinite right to remain in Australia.
With respect to the application of sub-paragraph 9.4.1(2)(b) the Tribunal accepts that the Applicant has a close relationship with his immediate and extended family and friends who are in Australia, particularly in circumstances where he has resided in Australia for the majority of his life. With respect to his extended family, the Applicant has identified nine uncles and aunts who live in Australia, and eleven cousins[160]. The Tribunal observes the Applicant has also provided written statements of support from a childhood friend and uncle[161]. The Tribunal accepts that the Applicant’s immediate and extended family would suffer emotional hardship should the Applicant be deported.
[160] Exhibit G1, G13, page 103
[161] Exhibit G1, G15, pages 115 and 116; Exhibit G1, G15, pages 120 and 121.
In applying sub-paragraph 9.4.1(2)(b) of the Direction, the Tribunal has had regard to the Applicant’s family and social links and is of the view that this attracts a strong measure of weight in favour of the Applicant being allowed to remain in Australia.
Overall, in applying paragraph 9.4.1 of the Direction to the factual circumstances of the Applicant, the Tribunal is of the view that this Other Consideration weighs strongly in favour of revocation, such that the Applicant is allowed to remain in Australia.
Whilst the Tribunal has applied a strong measure of weight to this Other Consideration, it is it is in the Tribunal’s view that this is outweighed by the very heavy weight that the Tribunal has given to Primary Consideration 1, supported by the heavy weight the Tribunal has given to Primary Consideration 4.
Impact on Australian business interests
Paragraph 9.4.2 of the Direction requires decision makers to consider the impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Tribunal has had regard to the considerations outlined in paragraph 9.4.2 of the Direction and is satisfied that an impact on Australian business interests is not relevant to the factual circumstances of the Applicant as there is no evidence before the Tribunal that the Applicant is involved in the delivery of a major project or delivery of an important service in Australia. The Tribunal observes the Applicant has submitted that this Other Consideration is not relevant to his circumstances[162].
[162] Exhibit A1, page 14, paragraph 62.
Summary: Other Considerations
The application of the Other Considerations in the matter before the Tribunal can be summarised as follows:
(a)International non-refoulement obligations: not engaged in relation to the Applicant;
(b)Extent of impediments if removed: slight measure of weight is attributable in favour of revocation;
(c)Impact on victims: of neutral weight;
(d) Links to the Australian community:
(i)Strength, nature and duration of ties to Australia: a strong measure of weight is attributable in favour of revocation; and
(ii)Impact on Australian business interests: of no weight as this consideration is not relevant to the factual circumstances of the Applicant.
The Tribunal is of the view that, to the extent that any of these Other Considerations, as outlined in paragraphs 9 to 9.4.2 of the Direction, weigh in favour of revocation of the mandatory Visa Cancellation Decision, they are outweighed by the very heavy and determinative weight the Tribunal has afforded Primary Consideration 1, supported by the heavy weight which the Tribunal has afforded Primary Consideration 4, both of which weigh in favour of non-revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
As previously outlined in these reasons, pursuant to s501CA(4)(b) of the Migration Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s Visa:
(i)either the Applicant must be found to pass the character test; or
(ii)the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
As the Tribunal has already outlined in these reasons, the Applicant does not pass the character test.
The Tribunal has had reference to the Direction and to all the evidence before it and finds that there is not another reason for the Tribunal to revoke the cancellation of the Applicant’s Visa.
In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Migration Act to revoke the mandatory Visa Cancellation Decision, the Tribunal has had regard to the Primary Considerations referred to in the Direction, and made the following findings:
(i)Primary Consideration 1 weighs very heavily favour of non-revocation;
(ii)Primary Consideration 2 is of no weight and not determinative of any finding;
(iii)Primary Consideration 3 weighs moderately in favour of revocation; and
(iv)Primary Consideration 4 weighs heavily in favour of non-revocation.
The Tribunal is of the view that, to the extent that any of the Other Considerations (outlined in paragraphs 9 to 9.4.2 of the Direction) weigh in favour of revocation of the mandatory Visa Cancellation Decision, even when combined with each other and Primary Consideration 3, they do not in any way outweigh the very heavy and determinative weight the Tribunal has attributed to Primary Consideration 1, supported by the heavy weight the Tribunal has attributed to Primary Consideration 4 of the Direction.
It is the Tribunal’s opinion that a holistic view of the considerations in the Direction favours the non-revocation of the cancellation of the Applicant’s Visa.
Consequently, the Tribunal cannot exercise the discretion under s501CA(4) of the Migration Act to revoke the cancellation of the Applicant’s Visa.
DECISION
Pursuant to s43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent, dated 8 June 2021, not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
I certify that the preceding 239 (two hundred and thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member B. Pola
....................[SGD]....................................................
Associate
Dated: 1 September 2021
Date of hearing:
16 and 17 August 2021
Applicant:
Solicitor for the Applicant:
GXXS
Ms Jennifer Samuta
Samuta McComber Lawyers
Solicitor for the Respondent:
Mr Jake Kyranis
Sparke Helmore
“ANNEXURE 1 – EXHIBIT REGISTER”
EXHIBIT
DESCRIPTION OF EVIDENCE
DATE OF DOCUMENT
DATE RECEIVED
G1
G Documents (pages 1 to 174)
–
22 June 2021
R1
Respondent’s Statement of Facts, Issues and Contentions (pages 1 to 15)
2 August 2021
3 August 2021
R2
Tender Bundle (pages 1 to 62)
–
3 August 2021
A1
Applicant’s Statement of Facts, Issues and Contentions (pages 1 to 14)
16 July 2021
16 July 2021
A2
Statement of Ms VT (paged CD-1–CD-4)
11 August 2021
11 August 2021
A3
Image of photograph page in Australian passport of Ms VT (1 page)
4 March 2020
16 July 2021
0
6
0