Hadfield and Minister for Home Affairs (Migration)
[2020] AATA 94
•29 January 2020
Hadfield and Minister for Home Affairs (Migration) [2020] AATA 94 (29 January 2020)
Division:GENERAL DIVISION
File Number:2019/4225
Re:Quenten Hadfield
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Dr M Evans
Date:29 January 2020
Place:Perth
The Reviewable Decision, being the decision of a delegate of the Respondent dated
2 July 2019 not to revoke the mandatory cancellation of the Applicant’s Visa pursuant to
s 501CA(4) of the Migration Act 1958 (Cth), is affirmed..................................................................
Senior Member Dr M Evans
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – substantial criminal record – Direction No 79 – primary and other considerations – protection of the Australian community – nature and seriousness of criminal offending – risk to the Australian community – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties to Australia – extent of impediments if returned to New Zealand when Applicant has voluntarily returned – reviewable decision affirmed
LEGISLATION
Migration Act 1958 (Cth) – ss 499, 499(1), 499(2A), 500(6L), 501, 501(3A), 501(6), 501(6)(a) 501(7), 501(7)(c), 501CA, 501CA(4)
CASES
Apire and Minister for Immigration and Border Protection [2014] AATA 193
Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
DKXY v Minister for Home Affairs [2019] FCA 495
FYBR v Minister for Home Affairs [2019] FCA 500
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
JFSQ and Minister for Home Affairs [2019] AATA 616
Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s 501 And Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018) – paragraphs 6.1, 6.2, 6.3, 7, 8, 13, 13.1, 13.1.1, 13.1.2, 13.2, 13.3, 14.1, 14.2, 14.3, 14.5, Part C
REASONS FOR DECISION
Senior Member Dr M Evans
29 January 2020
BACKGROUND
The Applicant is a 47 year old man who is a citizen of New Zealand.
He arrived in Australia on 5 January 1990 when he was 17 years of age (G52, page 236).
The Applicant commenced offending in 1993 when he was approximately 21 years of age. His criminal history indicates that he has been convicted of approximately 61 offences including violent offences, dishonesty and property offences, traffic offences and breaches of police and judicial orders (G14, pages 98-100).
On 13 November 2018, the Applicant was sentenced in the District Court of Western Australia to a term of 16 months imprisonment for the offence of “aggravated burglary and commit offence in dwelling”.
As a result, in a letter dated 3 January 2019 (G3, page 10) from the Department of Home Affairs the Applicant was advised that his Class TY, Subclass 444 Special Category (Temporary) visa (the Visa) had been cancelled under s 501CA(4) of the
Migration Act 1958(Cth) (Migration Act).
The basis of the cancellation was that the Applicant did not pass the character test due to having a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months which he was serving on a full-time basis in a custodial institution (G3, page 10).
The Applicant was advised that he could make representations to seek revocation of the decision to cancel his Visa (G3, page 10). In an application dated 12 January 2019 the Applicant requested revocation of the cancellation decision and made representations (G16, pages 106-110; G17 pages 111-122). However, on 2 July 2019 a delegate of the Minister decided, under s 501CA(4) of the Migration Act, not to revoke the Visa cancellation decision (G13, page 81). This is the Reviewable Decision currently before the Tribunal.
The Applicant was notified of the Reviewable Decision in a hand delivered letter dated
4 July 2019 (G13, pages 74- 75).
On 15 July 2019, the Applicant lodged an application in the Administrative Appeals Tribunal (Tribunal) seeking a review of the Reviewable Decision (G2, pages 3-9).
The Applicant voluntarily returned to New Zealand on 7 August 2019, pending the outcome of this application. As the Applicant is not in the migration zone the matter is not expedited under s 500(6L) of the Migration Act, and the 84 day timeframe for handing down the decision does not apply.
ISSUES
The issues for determination by this Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the mandatory cancellation decision (that is, the Reviewable Decision) should be revoked (see s 501CA(4) of the Migration Act), having regard to the primary and other considerations in Direction No 79: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (Direction No 79).
MATERIAL BEFORE THE TRIBUNAL
The hearing commenced on 5 September 2019, but was adjourned because the Applicant had only received the Respondent’s Tender Bundle on 2 September 2019. The Tender Bundle comprised 548 pages of material, and the Applicant stated that he had only read approximately the first 10 pages. Given the substantial nature of this material, the hearing was adjourned and the Applicant was given until 18 September 2019 to file further submissions and evidence. The hearing resumed, and was concluded, on
24 September 2019.
The Applicant appeared by telephone link from New Zealand, and was self-represented. The Respondent was represented by Mr Burgess, who appeared in person.
The Applicant gave oral evidence and was cross-examined. He did not call any witnesses. As the Applicant was self-represented, the Tribunal assisted with asking the Applicant questions before and after his cross-examination.
The Tribunal admitted the following documents into evidence at the hearing:
(a)statement of Mr W, an acquaintance of the Applicant dated 31 July 2019 (Exhibit A1);
(b)statement of the Applicant, contained in an email dated 18 September 2019 (Exhibit A2);
(c)section 501 documents (G documents) numbered G1 to G61 comprising 294 pages (Exhibit R1);
(d)
Respondent’s Statement of Facts, Issues and Contentions (SFIC) dated
1 August 2019 (Exhibit R2);
(e)“Tender Bundle” compiled by the Respondent and comprising 548 pages (Exhibit R3);
(f)“Annexure A: Table of Applicant’s Criminal Record” compiled by the Respondent (Exhibit R4); and
(g)documents produced under summons from Frankston Magistrates Court, Victoria, comprising 35 pages (Exhibit R5).
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Migration Act provides that:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)
the person has a substantial criminal record (as defined by
subsection (7); or
…
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)
the person has been sentenced to a term of imprisonment of
12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more…
(Original emphasis.)
Section 501CA of the Migration Act further provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
a written notice that sets out the original decision; and
particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(a) that the person passes the character test (as defined by section 501); or
(b) that there is another reason why the original decision should be revoked.
(Original emphasis.)
DIRECTION NO 79
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act… if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “A person or body must comply with a direction under subsection (1)”.
On 20 December 2018, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No 79: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (Direction No 79) under s 499 of the Migration Act, which commenced operation on 28 February 2019. This Direction replaced the previous Direction No 65: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (22 December 2014).
Paragraph 6.1 of Direction No 79 sets out the “Objectives” of the Migration Act, with paragraph 6.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 of Direction No 79 provides “General Guidance” as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction No 79 sets out “Principles” which must be taken into account by persons making decisions under s 501CA(4) of the Migration Act, including the Tribunal:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Informed by the principles set out in paragraph 6.3 of Direction No 79, the decision-maker (in this case, the Tribunal) must take into account the primary considerations in Part C of Direction No 79, with regard to the specific circumstances of the case (paragraph 13(1) of Direction No 79). Specifically, paragraph 13(2) of Direction No 79 provides:
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 14(1) of Part C of Direction No 79 lists other considerations as follows:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
Paragraph 7(1)(b) of Direction No 79 outlines how a decision-maker is to exercise discretion:
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
(a)…
(b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Further guidance as to how a decision-maker is to apply the considerations in
Direction No 79 can be found in paragraph 8 of Direction No 79, “Taking the relevant considerations into account”, which provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that noncitizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act.
A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act).
On 21 November 2018, the Applicant was sentenced in the District Court of Western Australia to a 16 month term of imprisonment for “aggravated burglary and commit offence in dwelling” (G14, page 99).
Consequently, the Applicant does not pass the character test under
s 501(6)(a) and s 501(7)(c) of the Migration Act.
The Tribunal must therefore consider whether there was “another reason” why the Reviewable Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
IS THERE ANOTHER REASON WHY THE REVIEWABLE DECISION SHOULD BE REVOKED?
First primary consideration: Protection of the Australian community (paragraph 13.1 of Direction No 79)
Paragraph 13.1(1) of Direction No 79 provides that:
When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on noncitizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community…
Paragraph 13.1(2) of Direction No 79 then provides:
Decision-makers should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paragraph 13.1.1(1) of Direction No 79)
Paragraph 13.1.1(1) of Direction No 79 further provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
A summary of the Applicant’s criminal and traffic history is as follows (Exhibit R4; see also G14, pages 98-100):
Table of the Applicant’s Offending
State
Offence date
Result date
Offence
Penalty Imposed
VIC
19.05.1993
14.03.1995
Intentionally or recklessly cause injury
Fine: aggregate $1200
Without conviction.
VIC
19.05.1993
14.03.1995
Attempt theft
Fine: aggregate $1200
Without conviction.
VIC
Unknown
17.11.1993
Intentionally or recklessly cause injury (2 counts)
All charges failed to appear – warrant issued
VIC
Unknown
17.11.1993
Theft
All charges failed to appear – warrant issued
VIC
07.02.1998
06.08.1998
Theft
Community based order for 12 months – to perform 100 hours of unpaid community work over 6 months
VIC
07.02.1998
06.08.1998
Intentionally damage property
Community based order for 12 months – to perform 100 hours of unpaid community work over 6 months
VIC
07.02.1998
06.08.1998
Assault with weapon
Community based order for 12 months – to perform 100 hours of unpaid community work over 6 months
VIC
19.02.2000
20.04.2000
Criminal damage (intent damage / destroy)
Aggregate 3 months imprisonment – concurrent. To be served by way of an intensive correction order.
VIC
19.02.2000
20.04.2000
Assault police / person assisting police
Aggregate 3 months imprisonment – concurrent. To be served by way of an intensive correction order.
VIC
07.11.2005
25.09.2006
Recklessly cause injury
2 months imprisonment concurrent. Sentence partially suspended under s 27 – term to be served is 1 month for 2 years. Effective total state term imposed is 1 month.
VIC
21.02.2006
29.01.2007
Exceed signed speed limit – 60KPH
Fined: aggregate $3000 with $61.30 statutory costs
VIC
21.02.2006
29.01.2007
Fail to produce licence for inspection
Fined: aggregate $3000 with $61.30 statutory costs
VIC
21.02.2006
29.01.2007
Assault police
(2 counts)
Fined: aggregate $3000 with $61.30 statutory costs
VIC
21.02.2006
29.01.2007
Refuse preliminary breath test
Fined: aggregate $3000 with $61.30 statutory costs.
Licence cancelled and disqualified for 2 years – order on licence effective from 29.01.2007
VIC
21.02.2006
26.07.2007
Exceed signed speed limit – 60KPH
(appeal 29.01.2007)
Appeal allowed – order of Magistrates Court set aside.
Fined: aggregate $1800
VIC
21.02.2006
26.07.2007
Fail to produce licence for inspection
(appeal 29.01.2007)
Appeal allowed - Order of Magistrates Court set aside and dismissed.
VIC
21.02.2006
26.07.2007
Assault police
(appeal 29.01.2007)
Appeal allowed – order of Magistrates Court set aside.
Fined: aggregate $1800
VIC
21.02.2006
26.07.2007
Refuse preliminary breath test
(appeal 29.01.2007)
Appeal allowed – order of Magistrates Court set aside.
Fined: aggregate $1800
VIC
16.10.2006
30.05.2008
Criminal damage (intent damage/destroy)
Aggregate 3 months imprisonment – concurrent. To be served by way of an intensive correction order.
VIC
16.10.2006
30.05.2008
Unlawful assault
Aggregate 3 months imprisonment – concurrent. To be served by way of an intensive correction order.
VIC
25.09.2009
28.09.2009
Unlawful assault
Fined: aggregate $600
VIC
25.09.2009
28.09.2009
Contravene family safety notice
Fined: aggregate $600
VIC
Unknown
10.12.2010
Resist police
(2 counts)
Aggregate 10 month imprisonment – 6 months of sentence suspended for 18 months under s 27.
VIC
Unknown
10.12.2010
Criminal damage
Aggregate 10 month imprisonment – 6 months of sentence suspended for 18 months under s 27.
VIC
Unknown
10.12.2010
Reckless conduct endanger serious injury
Aggregate 10 month imprisonment – 6 months of sentence suspended for 18 months under s 27.
VIC
Unknown
10.12.2010
Unlawful assault
(3 counts)
Aggregate 10 month imprisonment – 6 months of sentence suspended for 18 months under s 27.
VIC
Unknown
10.12.2010
Drive in a manner dangerous
Aggregate 10 month imprisonment – 6 months of sentence suspended for 18 months under s 27.
Licence cancelled and disqualified for 12 months effective from 18.06.2010
VIC
Unknown
10.12.2010
Fail to stop motor vehicle on request
Fined: aggregate $1500
VIC
Unknown
10.12.2010
Drive whilst authorisation suspended
Fined: aggregate $1500
VIC
Unknown
10.12.2010
Exceed 100 speed sign by 10K less 25K
Ex. Presc conc 3 HRS-breath-drive vehicle
Licence cancelled and disqualified for 12 months effective from 18.06.2010
VIC
Unknown
10.12.2010
Possess controlled weapon without excuse
Fined: aggregate $1500
Order all property/s seized be forfeited and destroyed
VIC
Unknown
13.02.2013
Contravene suspended sentence order
Fine: $500
VIC
Unknown
13.02.2013
Resist police
(2 counts)
Breach of suspended sentence – order confirmed
VIC
Unknown
13.02.2013
Criminal damage (intent damage / destroy)
Breach of suspended sentence – order confirmed
VIC
Unknown
13.02.2013
Recklessly cause injury
Breach of suspended sentence – order confirmed
VIC
Unknown
13.02.2013
Unlawful assault (3 counts)
Breach of suspended sentence – order confirmed
VIC
Unknown
13.02.2013
Drive in a manner dangerous
Breach of suspended sentence – order confirmed
VIC
Unknown
13.02.2013
Recklessly cause injury
Fine: $2000
Aggregate 3 month imprisonment – concurrent
Sentence wholly suspended under s 27 – operational period is 9 months
VIC
Unknown
13.02.2013
Unlawful assault
Fine: $2000
Aggregate 3 month imprisonment – concurrent
Sentence wholly suspended under s 27 – operational period is 9 months
VIC
Unknown
13.02.2013
Wilful damage property
Fine: $2000
Aggregate 3 month imprisonment – concurrent
Sentence wholly suspended under s 27 – operational period is 9 months
VIC
Unknown
13.02.2013
Contravene family violence intervention order
Fine: $2000
Aggregate 3 month imprisonment – concurrent
Sentence wholly suspended under s 27 – operational period is 9 months
WA
23.01.2016
23.03.2016
Used an unlicensed vehicle
Fine: $200
WA
07.03.2016
10.08.2016
Failed to give driver identity information
Fine: $750
WA
13.04.2016
30.08.2016
Used an unlicensed vehicle
Fine: $200
WA
14.04.2016
22.07.2016
Used an unlicensed vehicle
Fine: $250
WA
15.04.2016
27.04.2017
Possession of stolen or unlawfully obtained property
Spent conviction
Fine: $200
WA
16.09.2016
27.04.2017
Breach of bail
Spent conviction
Fine: $200
WA
27.04.2017
28.04.2017
Breach of police order
Fine: $250
WA
15.09.2017
13.11.2018
Aggravated burglary and commit offence in dwelling
Imprisonment: 16 months concurrent from 13.01.2018
WA
15.09.2017
21.11.2018
Common assault
Fine: $1000 (global)
WA
15.09.2017
21.11.2018
Common assault
Fine: $1000 (global)
WA
15.09.2017
21.11.2018
Common assault in circumstances of aggravation or racial aggravation
Fine: $1000
WA
17.09.2017
12.07.2018
Breach of protective bail conditions
Fine: $1500 (global)
WA
28.11.2017
12.07.2018
Breach of protective bail conditions
Fine: $1500 (global)
WA
01.12.2017
12.07.2018
Breach of protective bail conditions
Fine: $1500 (global)
WA
02.12.2017
12.07.2018
Breach of protective bail conditions
Fine: $1500 (global)
WA
03.12.2017
12.07.2018
Breach of protective bail conditions
Fine: $1500 (global)
WA
05.01.2019
05.08.2019
Breach family violence restraining order or violence restraining order
Fine: $300
Paragraph 13.1.1(1)(a) of Direction No 79 states that, “… violent and/or sexual crimes are viewed very seriously”. As is shown in the Table of the Applicant’s Offending, the Applicant has been convicted of a number of offences involving violence. These include approximately 16 assault convictions, including convictions for assault with a weapon, assaulting police and aggravated assault convictions in connection with contraventions of family violence safety notices. The Applicant also has six convictions for recklessly causing injury. Accordingly, these offences involving violence are viewed very seriously by the Tribunal.
Paragraph 13.1.1(1)(a) of Direction No 79 does not limit the range of offences that may be considered serious. As set out in the Table of the Applicant’s Offending, the Applicant also has numerous driving offences including for speeding, failing to produce his licence for inspection, refusing breath tests, dangerous driving, failing to stop a motor vehicle on request, driving whilst suspended, failing to give driver identity and numerous convictions for using an unlicensed vehicle. Driving convictions are regarded by the Tribunal as being serious because the unlicensed and/or irresponsible use of a motor vehicle can endanger innocent road users (see for example, Member Webb, in Apire and Minister for Immigration and Border Protection [2014] AATA 193 at [16] and Senior Member Tavoularis in Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561 at [43]-[45]).
The Applicant’s conviction for the “aggravated burglary and commit offence in dwelling” offence in 2017 which resulted in the 16 month term of imprisonment, and aggravated assault for which he received a fine, involved the Applicant breaking into a motel where his former partner (the victim) was staying. The victim suffered injuries to her hand after the Applicant swung a chair in her direction. One of the victim’s friends was present and was also assaulted by the Applicant who grabbed her by the wrist and started shaking it when she attempted to film him on her mobile telephone. A third assault was committed against another female friend of the victim during this incident when the Applicant pushed her into the stairwell guard railing (Exhibit R3, pages 63-64).
The Applicant’s conviction in 2006 for “recklessly causing injury” involved the Applicant striking his daughter during an argument (transcript, page 24). In 2010, the Applicant admitted to an incident in which he punched his daughter to the right side of her head causing pain and swelling in the jaw region (Exhibit R3, page 300; transcript, page 26). A further incident summary report records that on 22 April 2012, the Applicant punched the 13 year old son of the victim (who was his partner at the time) in the back of the head causing moderate swelling, and assaulted the victim by punching her in the side of the head when she intervened. The incident was also witnessed by the victim’s 14 year old daughter (Exhibit R3, page 299; transcript, page 28). Paragraph 13.1.1(1)(b) of Direction No 79 provides that crimes of a violent nature against women are viewed very seriously regardless of the sentence imposed, and accordingly such offences must be regarded as very serious.
Paragraph 13.1.1(1)(c) of Direction No 79 provides that crimes committed against government representatives or officials (which would include police) in the performance of their duties are serious. The Applicant has been convicted of multiple charges for assaulting police, as well as charges of resisting oolice (see above Table of the Applicant’s Offending at [38]). These offences, particularly the assaults against police, are consequently regarded by the Tribunal as being serious.
Applying paragraph 13.1.1(1)(d) of Direction No 79, the Applicant has been sentenced to terms of imprisonment for his offending on six separate occasions in 2000, 2006, 2010, 2013 and 2018. His first five terms of imprisonment were served by way of intensive correction orders, or wholly or partly suspended terms of imprisonment. On
13 November 2018, the Applicant was sentenced in the District Court of Western Australia to a custodial term of imprisonment of 16 months. A term of imprisonment is generally imposed as a last resort and can reflect the serious nature of the offending. Accordingly, the Tribunal considers that the custodial term of imprisonment imposed on the Applicant on this occasion reflects the serious nature of the offending.
With respect to the frequency of the Applicant’s offending and whether there is any trend of increasing seriousness (paragraph 13.1.1(1)(e) of Direction No 79), the Applicant was first fined $1200 for “intentionally or recklessly cause injury” and “attempt theft” on
14 March 1995. His next convictions were approximately three years later for “theft”, “intentionally damage property” and “assault with weapon” on 6 August 1998. Approximately two years later, on 20 April 2000, the Applicant was convicted of “criminal damage (intent damage/destroy)” and “assault police/person assisting police”. Subsequently, there was a gap in the Applicant’s convictions until 25 September 2005 when he was convicted of “recklessly cause injury”. From 2007 onwards, the Applicant’s offending became more frequent (see Table of the Applicant’s Offending at [38]). He has serious convictions, including convictions for violent offending, throughout his lengthy criminal history, demonstrating a continuous trend of serious offending which has increased in frequency.
With respect to the cumulative effect of repeated offending (paragraph 13.1.1(1)(f) of Direction No 79), the Tribunal will consider whether offending over a period of time by an Applicant places a burden on the resources of police, corrective services, and the courts. Overall, the Applicant has been convicted of approximately 61 offences. The number of offences and duration of the Applicant’s criminal history would, in the Tribunal’s opinion, constitute a burden on these resources.
The Applicant provided false or misleading information to the Department by not disclosing prior criminal offending on his incoming passenger cards in 2001 and 2008.
In response to the question “Do you have any criminal conviction/s?” the Applicant ticked the box marked “no” (G55, pages 242-243) (paragraph 13.1.1(1)(g) of Direction No 79). When this was put to the Applicant at the hearing, his answers were evasive and he would not expand on them. For example, the Applicant stated that, “I should have put “Yes”, but I put, “No”” and “I filled out the immigration card wrong” (see generally transcript, pages 36-37).
The Applicant has not previously received any warning that further offending may affect his migration status, and so paragraph 13.1.1(1)(h) of Direction No 79 is not applicable.
Paragraph 13.1.1(1)(i) of Direction No 79 requires the Tribunal to consider whether the Applicant has committed any crime while in prison or immigration detention. Whilst he was in immigration detention on 5 January 2019, the Applicant breached a family violence restraining order by sending a Facebook message to his former partner using another detainee’s Facebook account. The Applicant denied sending this message, and stated that he intended to plead not guilty but that the matter was decided in his absence because he had returned to New Zealand by the time of the court date (transcript, page 32). However his denial was, in the Tribunal’s opinion, implausible because the message specifically states the names of the Applicant’s former partner and two daughters and could not have been sent without the Applicant’s knowledge or input (transcript, pages
32-33; Exhibit R3, page 379).
On balance, the Tribunal finds that the nature of the Applicant’s offending, particularly his violent offending, including assaults against women and children, is very serious and weighs strongly against the revocation of the cancellation of his Visa.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2 of Direction No 79)
A decision-maker should also have regard to the following principle, described in paragraph 13.1.2(1) of Direction No 79 as follows:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage at [111] from Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 at [95], as well as Gilmour J in Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]-[43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
(footnotes omitted.)
In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 Moshinsky J stated at [68] that: “…there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.” Additionally, in Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of reoffending as requiring a “rational and probative basis”.
With respect to the nature of the harm that could result if the Applicant is to reoffend (paragraph 13.1.2(1)(a) of Direction No 79), violent offending may result in physical and possibly also psychological harm to victims. Should the Applicant commit further traffic and driving related offences, members of the public (including innocent road users and pedestrians) could also suffer physical injuries or loss of life, as well as psychological harm. These harms are potentially very serious. The nature of harm if the Applicant were to commit further general offences (for example, dishonesty or property offences) is less serious, with victims suffering harms including inconvenience, stress and economic loss.
The Tribunal will now consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community (paragraph 13.1.2(1)(b) of Direction
No 79).
As discussed above, the Applicant has a lengthy criminal history, spanning approximately 25 years, commencing in 1993 and continuing until 2019. His criminal history also shows numerous breaches of court imposed orders. These factors show a disregard for Ausralian laws and lawful authority, and tend to suggest that there remains a likelihood that he will commit further offences in the future.
The Applicant stated his remorse and his belief that he has been rehabilitated and that he has become a better person (transcript, pages 8-9 and 42-43). He stated that he could now identify “being in bad situations and making bad choices” (transcript, page 10).
The Applicant further identified that he had hurt his family and those close to him through the “stupid decisions” that he had made (transcript, pages 14 and 42). Expressing remorse can be indicative that the Applicant accepts responsibility for his offending (JFSQ and Minister for Home Affairs [2019] AATA 616 at [65]). However, these insights are somewhat tempered by the Applicant’s attempts during the hearing to minimise his offending behaviour. For example, when asked about the “aggravated burglary and commit offence in dwelling” offence in 2017 which resulted in the 16 month term of imprisonment, the Applicant said that he picked up the chair to defend himself when one of the victims picked up a knife. However, the Applicant pled guilty to the charges, and did not raise self-defence, although he did say that “it [the chair making contact with the victim’s hand] wasn’t intentional” (Exhibit R3, page 65). At the Tribunal hearing the Applicant attempted to apportion blame to his former partner for sending his Facebook messages to police (transcript, pages 11-12) and, with respect to a driving offence in 2016 he said “I wasn’t even driving the car” (transcript, page 12). Minimising offending behaviour by deflecting blame onto others suggests that the Applicant has not accepted full responsibility for his offending.
The Tribunal acknowledges that prison may have had a salient effect on the Applicant, however notes that the Applicant had some reports of behavioural incidents in prison including fighting (see Parole Review Report created 28 November 2018, R3 pages 221 and 223). Although this report recommended that parole be denied for reasons including a “Perceived high risk of reoffending due to criminal history, including [the] violent nature of previous offending in Victoria” and “Perceived un-addressed treatment needs”, the parole assessment by Adult Community Corrections dated 5 December 2018 recommended that the Applicant should be released on parole because he had a suitable parole plan
(Exhibit R3, page 229).
Notwithstanding these conflicting reports, the Applicant was released on parole on
4 January 2019. The following release reasons were provided by the Prisoners’ Review Board (PRB) (Exhibit R3, page 198):
The fact that your supervision for the remainder of your sentence in the community to monitor your behaviour and assist your reintegration and rehabilitation may offer more protection to the community in the long term than your release without any supervision at the end of your sentence.
The fact the conditions of parole will further reduce the risk to the safety of the community.
The salutary impact of your first term of imprisonment and your first opportunity for parole supervision.
You having [sic] received a backdated sentence and therefore intensive treatment programs have not been available to you, however your treatment needs can be addressed in the community.
Your parole plan which includes confirmed suitable accommodation, an intention to find employment and support from prosocial family.
Your participation in voluntary programmes, which demonstrates a motivation and willingness to address your offending behaviour.
The PRB also imposed a number of conditions on the Applicant for the duration of his parole including being required to attend random urinalysis for all illicit substances, attending programs and counselling as directed, engaging in employment, training or job seeking for the duration of parole and having no direct or indirect contact with the victims and abiding by the terms of any violence restraining order in place (Exhibit R3, page 198).
The release reasons of the PRB indicate that the PRB regarded the Applicant as still posing a risk to the safety of the community, but that the risk could be managed through the imposition of conditions. It is also evident from the reasons of the PRB that they regarded the Applicant as having unmet treatment needs that were unable to be addressed in prison due to the backdating of his sentence. The PRB was apparently of the view that these treatment needs could be met in the community during the parole period. However, the Applicant did not have the opportunity of this period of supervision, including being able to access programs and counselling as directed by his supervising Community Corrections Officer, which may have assisted in reducing the likelihood of his reoffending. This was because he was released from prison into immigration detention (transcript, page 15).
The Applicant’s desire to be a part of his adult daughters’ lives in the future, and to assist to support his wife and daughter who have mental health issues (as well as his daughter being investigated for other physical health issues), may also be a protective factor which may motivate him not to reoffend. The Applicant also stated that he had reconnected with his church in prison over the past two years (Exhibit A1; Exhibit A2; transcript, page 8).
If he maintains his involvement with the church in the community it may also be a prosocial factor which could assist to reduce the likelihood of his reoffending.
The Tribunal also notes the Applicant’s evidence that he is positively contributing to the New Zealand community by engaging in community work as a cook at a homeless shelter, seeking to reconnect with family and obtaining treatment for his mental health issues (transcript, pages 8-9). These are positive steps which will contribute to the Applicant’s rehabilitation, and may in turn reduce the likelihood of his reoffending.
The Applicant stated that his good friend has offered him employment in Melbourne as a truck driver, and a place to stay, should he be released back into the Australian community. The Tribunal notes that the Applicant has work experience in the construction industry and also as a rigger, and that his experience may further assist him in finding employment (transcript, pages 18-19). The Applicant completed a Career Development Workshop facilitated by Outcare on 15 March 2018 (G42, page 178). He also completed various accredited units at Certificate 1 level, and one at Certificate 2 level (G42, pages 179-188), which may also assist him with his future employment prospects. The Tribunal considers that employment is a prosocial activity which may reduce the likelihood of his reoffending.
To the Applicant’s credit, on 27 April 2018 the Applicant completed the 20 hour “Brief Intervention Cognitive Skills Program” offered by the Department of Corrective Services at Hakea Prison. The course content was stated in the Applicant’s completion certificate to include self-control, critical reasoning, problem solving and interpersonal perspective taking and relapse prevention (G42, page 189). The Program Report shows that the Applicant (G44, page 199):
… was a willing participant throughout all discussions and activities, often showing leadership within the program. Mr Hadfield demonstrated a sound level of understanding of the course content and has successfully completed the Cognitive Brief Intervention Program.
Further, program facilitators reported that the Applicant, “showed in the session on Relapse Prevention that he had a sound understanding of control and completed a personal relapse prevention plan to address relationship and personal loss issues”
(G44, page 199). However, the program facilitators did not measure the extent, if any,
to which the likelihood of the Applicant reoffending had been reduced as a result of completing this program.
The Applicant also attended regular Alcoholics Anonymous meetings in Hakea Prison (G42, page 190). His evidence at the Tribunal hearing was that he did not “fully” have a problem with alcohol (transcript, pages 14-15). Rather, he acknowledged issues with methamphetamine use in the past (transcript, page 13). The Applicant conceded at the hearing that his drug use impacted on his mental health and may have contributed to his making “stupid decisions” in the past (transcript, page 13). It is therefore commendable that the Applicant is currently having treatment in New Zealand from his general practitioner and psychologist, as well as taking medication for his mental health issues which he stated to be bipolar disorder and post-traumatic stress disorder. He is also receiving treatment for the physical conditions of gout and a blood condition
(transcript, page 38). If the Applicant is able to maintain his mental health treatment and medication and cease his illicit drug use, this may also reduce the likelihood of his reoffending in the future.
In summary, the Applicant has displayed some remorse and insight into the impact of his offending as well as the effect of drugs on his mental health and decision-making.
There are also other prosocial factors which may reduce the likelihood of his reoffending. These include: his desire to support his wife (from whom he is separated) and adult daughters (and to be more involved in their lives); his church involvement; his prospects of employment; his completion of the Brief Intervention Cognitive Skills Program; his attendance at Alcoholics Anonymous in Prison; and the treatment he is currently seeking in New Zealand from his psychologist and general practitioner.
However, the Tribunal is nevertheless concerned that notwithstanding these positive and prosocial factors, there is a likelihood of the Applicant reoffending. This is due to the Applicant’s criminal history over approximately 24 years comprising approximately 61 offences. This period is almost the whole of the Applicant’s adult life, and has persisted despite fines, sentences of imprisonment, and other court imposed orders. The Tribunal is concerned that the Applicant may still have outstanding treatment needs, noting that he was perceived to be a “high risk of reoffending” in his Parole Review Report. Although this risk may have been reduced, as indicated by the Applicant’s remorse, insights and participation in voluntary courses and treatment, the Tribunal is of the opinion that a risk nevertheless remains.
Further, the Applicant’s participation in the Brief Intervention Cognitive Skills Program is commendable, but the program was not intensive, and any gains he made were not assessed or measured. Additionally, whilst the program covers consequential thinking,
it did not focus on substance abuse or violent offending. The Applicant, to his credit, also attended Alcoholics Anonymous in prison; however his evidence was that his misuse issues were primarily with methamphetamine, and that he did not “fully” have a problem with alcohol.
The Tribunal therefore finds that there is a likelihood of the Applicant reoffending should he be given a further chance to be released back into the Australian community.
Although the high risk of reoffending stated in the Parole Review Report may have been reduced by some of the prosocial and protective factors discussed above, the Tribunal concludes, based on the evidence before it, that there remains a likelihood of reoffending which is at least at a moderate level. As discussed above, if the Applicant were to commit further offences, particularly violent offences, the nature of the harm to victims could be very serious.
On balance, the Tribunal finds that this consideration weighs moderately against the revocation of the decision to cancel the Applicant’s Visa.
Second primary consideration: The best interests of minor children in Australia (paragraph 13.2 of Direction No 79)
Paragraph 13.2 of Direction No 79 provides, in part:
(1)Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
…
Paragraph 13.2(4) of Direction No 79 continues on to outline the factors that a
decision-maker must consider when determining the best interests of a child.
Although the Applicant has two adult children, he does not have any minor children who would be affected by a decision to cancel his Visa. At the time of his revocation request, the Applicant reported being close to the two children and grandchildren of his former partner who was the victim of his “aggravated burglary and commit offence in dwelling” offence for which he was convicted on 13 November 2018 (G13, page 83). However, at the time of the hearing, the Applicant confirmed that he had no relationship or contact with his former partner, her children or grandchildren (transcript, page 17).
Consequently, the second primary consideration, the best interests of minor children in Australia, is not applicable.
Third primary consideration: Expectations of the Australian community (paragraph 13.3 of Direction No 79)
Paragraph 13.3(1) of Direction No 79 provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
Paragraph 6.3(2) of Direction No 79 sets out the following principle:
The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
Further, paragraph 6.3(3) of Direction No 79 relevantly states:
A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
Until recently there was a lack of clarity concerning the interpretation of this primary consideration, following the decision of Mortimer J in YNQY vMinister for Immigration and Border Protection [2017] FCA 1466 (YNQY) where Her Honour stated:
[76]In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to ‘tolerance’) the Australian community’s ‘expectations’ are defined only in one particular way: namely, that the Australian community ‘expects’ non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese v Minister for Immigration & Border Protection [2016] FCA 348; 248 FCR 296 at [64]–[66]).
(Emphasis added.)
Subsequently, two decisions of the Federal Court adopted slightly different approaches to the interpretation adopted by Mortimer J in YNQY. These decisions were DKXY v Minister for Home Affairs [2019] FCA 495 (DKXY) and FYBR v Minister for Home Affairs
[2019] FCA 500 (FYBR).
In DKXY, Griffiths J stated that it was not “inevitable” that the primary consideration of the expectations of the Australian community would weigh against revocation (at [32]).
His Honour explained, at [31], that:Undoubtedly, decision-makers who are bound to give effect to the Direction are required to have due regard to the Government’s view regarding community values, standards and expectations, as set out in, for example, cll 6.2 and 6.3 of the Direction, but nothing in the Direction indicates that community expectations will always favour non-revocation. Indeed, the totality of the relevant circumstances which bear upon the assessment and weighing of all three primary considerations and other considerations need to be considered, as is made clear in many clauses of the Direction…
(Original emphasis.)
In summary, Griffiths J was of the view that “The Government’s views have to be taken into account and given “due regard”, but so must all other circumstances which are relevant to the particular case” (at [33]). Hence, Griffiths J was advocating a broad approach where consideration has to be given to all the Applicant’s circumstances when considering the expectations of the Australian community, so that it is not inevitable that the Australian community’s expectations would weigh against revocation.
On the other hand, in FYBR, Perry J, at [42], affirmed a narrower approach,
which appears to be more consistent with Mortimer J’s approach in YNQY:It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases. As such, the Tribunal did not fall into jurisdictional error in failing to have regard to the applicant’s circumstances when assessing the expectations of the Australian community in applying cl 11(3) of the Direction.
Although Perry J referred to the statement of community expectations in the Direction to be a “norm” to be applied in “most cases”, it is not clear when circumstances may justify departure from that norm.
The Full Court of the Federal Court in FYBR v Minister for Home Affairs
[2019] FCAFC 185 (FYBR (FC)) considered the approach adopted by Mortimer J in YNQY. The Full Court’s decision was accurately summarised by Member Burford in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424 (Rehman), at [162]-[166], as follows:162. On 24 October 2019 the majority of the Full Court of the Federal Court (Charlesworth and Stewart JJ; Flick J dissenting) in FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR (FC)) upheld the decision of Justice Perry in FYBR. Importantly, the Court essentially agreed with the approach in YNQY and accepted Justice Mortimer’s characterisation of this consideration as a “kind of deeming provision” – expressing “an expectation deemed by the government to be held by the Australian community” (FYBR (FC), [at 61], per Charlesworth J; see also Stewart J [at 89]).
163. Again as noted above, while this case concerns Direction No. 65 and in particular paras 6, 8 and 11.3 of that Direction, the text of the relevant provisions is largely unchanged in Direction No 79. The Tribunal considers that the Court’s consideration of the issue of “community expectations” is directly applicable to paras 6, 8 and 13.3 are relevant to this application.
164. While there is some difference in the approach to the question of construction of the relevant clauses, the majority Justices in FYBR (FC) agree that it is not for a decision-maker to make his or own her own assessment of the community expectations and to give that assessment weight as primary consideration but to identify the Government’s view about community expectations and to have due regard to that view. That view will be taken into account in considering the particular circumstances of the case and ultimately determining the exercise of the decision-maker’s discretion, taking into account all the primary and other considerations (Charlesworth J at [73]-[74]; Stewart J at [93] and [103]).
165. In FYBR (FC) Charlesworth J, held that (at [67]):
To the extent that cl 11.3 contains a statement of the expectations of the Australian community, the clause is “deeming”, in the sense explained by Mortimer J... It is not for the decision maker to make his or her own assessment of the community expectations and to give that assessment eight as a “primary consideration”... For my part, I prefer to describe the clause as imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day with respect of its subject matter.
166. Justice Stewart held, in similar terms (at [89] and [91]):
... The government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting “community expectations” then, in that sense, they might accurately be understood as “deeming” what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one, or even necessarily dominant, set of community expectations in this field....
The above contextual factors lead to 2 guiding considerations to the proper construction of Direction 65. First, “community expectation” as expressed normatively” I watched the government says they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the government do not speak to the outcome of any particular case – they are to be understood and applied normatively.
167. Both majority Justices make the point that, as a primary consideration, “community expectations” are to be taken into account along with other factors to inform a decision-maker’s exercise of discretion. It follows that the ultimate decision may differ from community expectations. Community expectations are merely one of the three primary considerations to be taken into account. Further, both majority Justices note that if a decision-maker were to take account of every factor relevant to the decision to inform the content of community expectations this would render the process of weighing those other factors together with and against community expectations to be unworkable (see Charlesworth J (at [74]), Stewart J (at [91]-[93]).
168. Justice Charlesworth notes that it is necessary to determine the content of the deemed expectation not by reference to some factual inquiry but by reference to the paragraph itself. The task of the decision-maker is to identify the government view of community expectation and to have due regard to it (at [74]). Her Honour notes that the paragraph (at [73]):
Does not purport to preclude the decision maker from reaching his or her own view as to whether the non-citizen should or should not be granted a visa, as the decision maker must necessarily do. The clause implicitly recognises that the decision-makers assessment as to whether or not the visa should be granted may differ from the expectations of the Australian community, as the government deemed those expectations to be.
169. Her Honour goes on to note the paragraph (at [75]-[79]):
75.Should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visas applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration.
...
79. The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such cases, the decision maker would depart from the relative ascription of weight for which
cl 8(4) “generally” provided, as he or she is permitted to do.
170. Justice Stewart summarises the “community expectations” as expressed in the Direction as follows (at [100]):
Non-citizens will obey Australian laws while in Australia;
It may be appropriate to refuse a visa application were noncitizen has breached, or where there has is an unacceptable risk that they will breach, the expectation that they will obey the law or were they have been convicted of offences in Australia or elsewhere;
In a particular case, the refusal of a visa may be appropriate simply because the nature of the character concerns or offences are such that they should not be granted the visa...
His Honour goes on to state that (at [101]):
Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law it will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.”
171. As noted above, although the Justices were considering the provisions with respect to visa refusal their comments are, in the Tribunals view, equally applicable to the cancellation of a visa (though the other considerations and weighing exercise may differ).
(Emphasis and footnotes omitted.)
Having regard to the judgments of Stewart and Charlesworth JJ in FYBR (FC),
the Tribunal must give effect to the norm stipulated in paragraph 13.3 of Direction No 79(that the Australian community expects non-citizens to obey Australian laws whilst in Australia), which will in most cases weigh in favour of refusing to revoke the cancellation decision. The Applicant’s criminal history is lengthy and persistent. The Applicant has committed approximately 61 offences, including a number of violent offences and incidents against domestic partners, women and children as well as breaches of protection orders for those people. His offences also include offences against public officers and multiple driving offences which pose a risk to the safety of members of the Australian community (see above Table of the Applicant’s Offending at [38]).
Accordingly, the principle in paragraph 6.3(3) of Direction No 79, which in summary provides that non-citizens who have committed serious crimes, including crimes of violence should generally expect to be denied the privilege of staying in Australia, is applicable.
In these circumstances, the Tribunal is of the opinion that the Australian community would expect the Applicant’s Visa to remain cancelled. Consequently, the Tribunal finds that the expectations of the Australian community would weigh against the revocation of the cancellation decision.
In determining the weight to be applied to this consideration, the Tribunal has considered the primary considerations, including the serious nature of the Applicant’s offending and the likelihood of his reoffending. The Tribunal has balanced these considerations against the other considerations which weigh in the Applicant’s favour, and which are discussed below; in particular, the strength, nature and duration of the Applicant’s ties to Australia and (to a lesser extent because he has voluntarily returned there) the hardship the Applicant faces now that he has returned to New Zealand.
The Tribunal finds that on balance, the expectations of the Australian community would be that the decision to cancel the Applicant’s Visa should not be revoked. The Tribunal finds that this consideration weighs strongly against the revocation of the decision to cancel the Applicant’s Visa.
OTHER CONSIDERATIONS
Paragraph 14 of Direction No 79 provides:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a) International non-refoulement obligations;
(b) Strength, nature and duration of ties;
(c) Impact on Australian business interests;
(d) Impact on victims;
(e) Extent of impediments if removed.
International non-refoulement obligations
It is not relevant to consider international non-refoulement obligations (paragraph 14.1 of Direction No 79) because no such claims arose in any submissions or on the evidence before the Tribunal.
Strength, nature and duration of ties
Paragraph 14.2(1) of Direction No 79 provides:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of nonrevocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Relevantly, paragraph 6.3(5) of the principles section of Direction No 79 states:
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
Further, paragraph 6.3(7) of the principles section of Direction No 79 states, in part:
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
As noted above, the Applicant arrived in Australia when he was 17 years of age in 1990 and has resided in Australia for the entirety of his adulthood, being approximately 29 years. However, his first offence was committed when he was approximately 21 years of age, approximately three years from the time of his arrival in Australia. Hence, he began offending soon after arriving in Australia (paragraph 14.2(1)(a)(i) of Direction No 79).
As noted above, he has continued to persistently offend since that time with increasing frequency over the years that he has resided in Australia.
The Applicant has made some positive contributions to the community having worked in the construction industry for many years, as well as having worked as a truck driver and rigger. He has also worked in the entertainment industry as a musician and music teacher touring around Western Australia, and playing with a successful reggae band.
In his evidence at the hearing he described playing music at charity events, including for a soup kitchen for the homeless and for the Rotary Club (G25, pages 132-133; transcript, page 20). The Applicant was also state darts player, representing Victoria for nearly 10 years (G12, page 73). However, these positive contributions are somewhat tempered by the Applicant’s long and frequent history of offending throughout most of his time in Australia, which, as noted above, commenced within three years of his arrival in Australia.
The Applicant is separated from his wife who is an Australian citizen. They have two adult daughters who are also Australian citizens, both of whom reside in Melbourne
(transcript, page 17). His eldest daughter lives with her partner and works full time.
The Applicant stated in his evidence at the hearing that he has a close relationship with this daughter. His daughter wrote that she and her partner were planning on starting a family soon and were desperate for her father to stay to be a part of his grandchildren’s lives (G30, page 142). His daughter’s partner also wrote in support of the Applicant, stating that the Applicant’s daughter would suffer emotionally if he was not able to remain in Australia and be a part of their lives (G37, page 151). The Applicant’s younger daughter, who, according to the Applicant, has mental and other health issues, lives with her mother, the Applicant’s wife. In his revocation request, the Applicant described having a close relationship with his wife (G17, page 114) despite their separation. The Applicant stated that his wife also suffers from mental health issues, specifically depression and schizophrenia (G12, page 73). The Applicant stated that “I still stand by and love my wife always and would do anything I can to support her” (G12, page 73). The Tribunal finds that the Applicant’s wife and adult daughters are likely to suffer some hardship if he is unable to return to the Australian community.
The Applicant has parents and a sister living in Perth, however he stated that if released back into the Australian community he would reside in Melbourne so as to have more contact with his daughters and to avoid contact with his former partner who resides in Perth (transcript, page 17). In an email to the Tribunal (Exhibit A2), the Applicant stated:
I am here with condolences for my children and my immediate family who live in Australia. It’s an everyday struggle without the people who I love the most in this world. I am fighting in the court for my life you to [sic] have compassion, to see in your hearts that i [sic] love my family and that they mean everything to me. Please let me see my family, I’ve live [sic] and worked in Australia all my life. I consider Australia my home…
The Applicant also stated that, “I have strong community ties with the Jehovah witness church, myself and my mother are a member [sic] of the Jehovah Witness Congregation” (G12, page 73). A letter from the Coordinating Chaplain at Casuarina Prison confirmed that the Applicant regularly attended sessions with the Jehovah’s Witness
faith-representative in the chapel on a weekly basis and engaged in “one-on-one work” with the faith representative (G28, page 139). A further letter from an acquaintance (Exhibit A1) confirmed that between January 2019 and 31 July 2019 (the date of the letter) he had attended a bible study program with the Applicant. As noted above, the Applicant was also involved in the music industry in Perth for many years band (G25, pages
132-133) as well as contributing to the sport of darts (G12, page 73). His links to the Jehovah’s Witness community, sport of darts, and to the Perth music industry are also indicative of the Applicant’s ties to the Australian community.
There are numerous letters in support of the Applicant, including from the Applicant’s wife who stated that “it would deeply impact our lives if he were to be deported” (G33, page 147; G61, page 294), his eldest daughter (G30, pages 142-143) and her partner
(G37, page 151). The Applicant’s father also provided a letter offering support to the Applicant if he is released into the community (G36, page 150). His mother also wrote a letter of support for his application for parole (G27, page 138). The Tribunal also notes numerous letters from friends of the Applicant (including G34, page 148; G35, page 149; G38, page 152; G39, page 153; Exhibit A1). These letters of support from family and friends also indicate the Applicant’s close ties to the Australian community, and the likely emotional impact that his being unable to return to Australia would have on his family members and friends.
The Tribunal finds that the Applicant does have strong links to the Australian community, particularly due to the Applicant having resided in Australia for approximately 29 years, and his family and other community ties to Australia. However, the weight that can be given to this consideration is slightly reduced by the fact that the Applicant started offending within approximately three years of his arrival in Australia, and the lengthy criminal and traffic history that he has accrued in Australia. Nevertheless, the Tribunal finds that this other consideration weighs moderately in favour of the revocation of the decision to cancel the Applicant’s Visa.
Impact on Australian business interests
It is not relevant to consider whether a decision not to revoke the cancellation of the Applicant’s Visa will have a relevant impact on Australian business interests
(paragraph 14.3(1) of Direction No 79). The Applicant is not involved in the delivery of any major projects, or the delivery of an important service in Australia.
Impact on victims
Paragraph 14.4(1) of Direction No 79 states that the Tribunal should have regard to the impact on victims. Specifically, it states:
(1)Impact of a decision not to revoke 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.
The Applicant’s former partner, the victim of his aggravated burglary committed on
15 September 2017 and aggravated assault for which he received a fine, wrote a statutory declaration dated 8 November 2017 (G31, pages 144-145). In summary, the statutory declaration stated her support for the Applicant in that she did not feel threatened by him and that her children and grandchildren were anxious to see him. However, she did not provide any specific statement regarding the impact of a decision not to revoke the cancellation of the Applicant’s Visa on her (paragraph 14.4(1) of Direction No 79).
Indeed, the Applicant’s evidence at the hearing was that he had no contact with his former partner, her children or her grandchildren (transcript, page 17). Additionally, it was a condition of the Applicant’s parole (which expired on 12 May 2019) that he should have no direct or indirect contact with the victim (Exhibit R3, page 198). The Applicant also stated his intention to reside in Melbourne if released into the Australian community so as not to have any further contact with his former partner (transcript, page 17). As no specific views have been expressed by the Applicant’s former partner as to the impact of a decision not to revoke the cancellation of the Applicant’s Visa would have on her, and as he no longer has contact with her, the Tribunal regards this consideration as not applicable.
There is also no evidence before the Tribunal about the impact of a decision not to revoke the cancellation of the Applicant’s Visa on any of the other victims of the Applicant’s offending or the family members of any of the victims (paragraph 14.4(1) of
Direction No 79).Extent of impediments if removed
Paragraph 14.5(1) of Direction No 79 provides:
(2)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) The non-citizen’s age and health;
(b) Whether there are substantial language or cultural barriers; and
(c) Any social, medical and/or economic support available to them in that country.
The Applicant is now 47 years of age. He voluntarily returned to New Zealand on
7 August 2019. The Applicant has mental health conditions (which he stated at the hearing to be bipolar disorder and post-traumatic stress disorder), as well as some physical health conditions (gout and a blood condition). However, the Applicant has been able to access medical supports in New Zealand. Specifically, the Applicant’s evidence was that he was obtaining treatment in New Zealand from a general practitioner, having weekly appointments with a psychologist, and taking medication for his mental health conditions (Exhibit A2; transcript, pages 9 and 18).
As the Applicant arrived in Australia at the age of 17 years, there are no language or substantial cultural barriers which would be impediments to his continued residence in New Zealand. Relevantly, at the hearing the Applicant stated that he had been in contact with the elders of the region that he is from in New Zealand, who are attempting to reconnect him with his family members in New Zealand (transcript, page 20).
If the Applicant is able to reconnect with these family members, they may be able to offer him some social and emotional support.
The Applicant has the same access to economic support as other New Zealand citizens, and has already accessed Social Security services to assist him with finding housing and work (transcript, page 18). He stated at the hearing that he was currently in emergency housing and that he was on a waitlist for more permanent housing (transcript, page 18). He has also made efforts to reintegrate into the New Zealand community by undertaking two days a week volunteer work cooking at a homeless shelter (Exhibit A2).
His evidence at the Tribunal hearing indicated that he is missing his adult daughters and other family in Australia, and that his separation from them, and concern for their wellbeing, is likely to cause him some emotional distress (see, for example transcript, page 42). If the Applicant’s daughter and her partner do start a family, the Applicant may suffer from being unable to re-enter Australia to see his grandchildren. Although it is not the same as in-person contact, the Applicant could still maintain contact with his daughters, parents and sister in Australia by telephone or other electronic means.
The Applicant is also likely to suffer some disappointment and distress at not being able to re-enter Australia to play music and tour with his band, which he has enjoyed doing in the past (transcript, page 43).
On balance, the Tribunal finds that any impediments experienced by the Applicant as a result of his return to New Zealand are not insurmountable and therefore that this consideration only slightly weighs in favour of the revocation of the cancellation decision.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Migration Act.
The Tribunal has also considered whether there is another reason why the mandatory cancellation decision should be revoked, having regard to the primary and other considerations in Direction No 79.
In relation to the first primary consideration, the Tribunal finds that:
(a)The nature and seriousness of the Applicant’s conduct weighs strongly in favour of the Tribunal refusing to revoke the cancellation of the Applicant’s Visa (paragraphs 13.1 and 13.1.1 of Direction No 79).
(b)The risk to the Australian community should the Applicant commit further offences also weighs moderately in favour of the Tribunal refusing to revoke the cancellation of the Applicant’s Visa (paragraph 13.1.2 of Direction No 79).
Overall, with respect to the first primary consideration, the Tribunal concludes that the protection of the Australian community (paragraphs 13.1, 13.1.1 and 13.1.2 of
Direction No 79), weighs moderately to strongly in favour of the Tribunal refusing to revoke the cancellation of the Applicant’s Visa.
With respect to the remaining primary considerations, the Tribunal finds that:
(a)
The best interests of minor children are not applicable (paragraph 13.2 of
Direction No 79).
(b)The expectations of the Australian community (paragraph 13.3 of Direction No 79) weigh strongly in favour of the Tribunal refusing to revoke the cancellation decision.
In relation to the other considerations that are applicable to this application:
The strength, nature and duration of the Applicant’s ties to Australia (paragraph 14.2(1) of Direction No 79) weighs moderately in favour of the revocation of the cancellation decision.
(b)The Applicant has voluntarily relocated to New Zealand, and although there are some impediments to removal in terms of the Applicant’s separation from his family in Australia and difficulties in readjusting to his new life in New Zealand, these impediments are not insurmountable and only weigh slightly in favour of the revocation of the cancellation decision (paragraph 14.5(1) of Direction No 79).
On balance, the Tribunal is of the opinion that the primary considerations of protection of the Australian community and the expectations of the Australian community outweigh the other considerations of the Applicant’s strength, nature and duration of ties to Australia, and the extent of impediments if removed.
Having regard to all of the relevant primary considerations, and the relevant other considerations in Direction No 79, the Tribunal is of the view that it would not be appropriate for the Tribunal to revoke the mandatory cancellation of the Applicant’s Visa. The correct or preferable decision is to affirm the Reviewable Decision.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated
2 July 2019not to revoke the mandatory cancellation of the Applicant’s Visa pursuant to
s 501CA(4) of the Migration Act 1958 (Cth) is affirmed.
I certify that the preceding 118 (one hundred and eighteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans
.....................................................................
Associate
Dated: 29 January 2020
Date of hearing:
5 September 2019 and 24 September 2019
Applicant:
Representative for the Respondent:
Self-represented
Mr A Burgess
Solicitors for the Respondent:
Sparke Helmore Lawyers
Key Legal Topics
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Immigration
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Administrative Law
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Statutory Interpretation
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Judicial Review
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Natural Justice
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