Hammond and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2022] AATA 3175

Hammond and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3175 (29 September 2022)

Division:GENERAL DIVISION

File Number(s):      2022/5906

Re:Karl Philip Hammond

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member A Poljak

Date:29 September 2022

Place:Sydney

The decision under review is affirmed.

.................................[SGD].......................................

Senior Member A Poljak

Catchwords

MIGRATION – visa cancellation under subsection 501(3A) of the Migration Act 1958 (Cth) – cancellation not revoked under subsection 501CA(4) – where the applicant has a substantial criminal record – where the applicant does not pass the character test –whether there is another reason why the visa cancellation should be revoked – Direction no. 90 considered – relevant law and material considered – decision under review affirmed.

Legislation

Migration Act 1958 (Cth)

Secondary Materials

Direction no. 90—Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Senior Member A Poljak

29 September 2022

1. Mr Hammond, the applicant, and is a citizen of New Zealand. The applicant first arrived in Australia on 28 February 1987 at the age of 20 and has returned to New Zealand many times since then, including for a period of over 10 years between 1997 and 2007

2. In January 1997, the applicant, while driving under the influence of alcohol, was involved in a collision which resulted in the other driver sustaining life-threatening injuries. Shortly after the incident, the applicant left Australia, later returning in September 2007. The applicant was unable to be located until late 2020, after which he was extradited from Queensland to New South Wales and convicted of dangerous driving occ GBH-drive under the influence-T1 on 5 August 2021 (the 1997 offence). For that offence, the applicant received a sentence of 12 months’ imprisonment, with a non-parole period of 7 months.

3. On 18 August 2021, the applicant's visa was mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) (visa cancellation). On 7 July 2022, a delegate of the Minister decided, pursuant to subsection 501CA(4) of the Act, not to revoke the decision to cancel the applicant's Special Category (Temporary) visa (the visa). This is the decision under review in these proceedings (decision under review).

   Issues

4. The applicant does not pass the character test by virtue of his sentence of 12 months’ imprisonment on 5 August 2021 for the 1997 offence: paragraphs 501(6)(a) and 501(7)(c) of the Act. As such, the sole issue is for determination is whether there is another reason why the visa cancellation should be revoked, under subparagraph 501CA(4)(b)(ii) of the Act.

   Relevant Legislative Provisions

5. Subsection 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test and is serving a full-time custodial sentence of imprisonment.

6. Subsection 501(6) defines the character test. Relevantly, a person does not pass the character test if the person has a “substantial criminal record” as defined by subsection 501(7). Paragraph 501(7)(c) provides that for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

7. Subsection 501CA(4) of the Act provides that the Minister may revoke the original decision if the Minister is satisfied that the person passes the character test as defined by section 501; or that there is another reason why the original decision should be revoked. This is a discretionary power.

8. A decision under subsection 501CA(4) of the Act involves an assessment and evaluation of the factors for and against revoking the mandatory cancellation decision. A determination under subsection 501CA(4) must be carried out in accordance with any written directions given by the Minister under the Act: subsection 499(2A).

9. In considering whether to exercise the discretion in subsection 501CA(4) of the Act, the Tribunal is required by subsection 499(2A) of the Act to have regard to the Minister’s Direction relevant to section 501CA, Direction no. 90—Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90).

10. The preamble to Direction 90 provides a framework for the guidance of decision-makers. Paragraph 5.1 comprises a statement of objectives. Paragraph 5.2 sets out 'principles' that should inform the decision-maker’s exercise of discretion:

    (1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable 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 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.

11. Paragraph 6 guides decision-makers as to the exercise of the visa cancellation, refusal or revocation discretion. Relevantly in relation to considering revocation of a mandatory cancellation, it provides:

    Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

12. Paragraph 7 of Direction 90 states that decision-makers must take into account the primary and other considerations relevant to the individual case. Generally, primary considerations should be given greater weight than the other considerations: paragraph 7(2).

13. Paragraph 8 of Direction 90 identifies the four 'Primary considerations', which the Tribunal must consider in determining a revocation request. They are (paragraph 8(1)-8(4)):

    ·protection of the Australian community from criminal or other serious conduct;

    ·whether the conduct engaged in constituted family violence;

    ·the best interests of minor children in Australia; and

    ·expectations of the Australian community.

14. Paragraph 9 identifies other considerations which must be taken into account. Those other considerations listed are non-exhaustive, and are as follows (paragraph 9(1)):

    ·international non-refoulement obligations;

    ·extent of impediments if removed;

    ·impact on victims; and

    ·links to the Australian community, including:

    ostrength, nature and duration of ties to Australia; and

    oimpact on Australian business interests.

    Protection of the Australian community from criminal or other serious conduct

15. The Tribunal must have regard as a primary consideration to the protection of the Australian community from criminal or other serious conduct. In this respect, paragraph 8.1(1) of Direction 90 states as follows:

    When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

16. Paragraph 8.1(2) of Direction 90 provides that 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 applicant's conduct

17. With respect to the nature and seriousness of the applicant's conduct, factors to be taken into account are set out in paragraph 8.1.1(1) of Direction 90. Paragraph 8.1.1(1)(a)(i) of Direction 90 states that, without limiting the range of offences that may be considered very serious, violent crimes are viewed very seriously.

18. The applicant's conduct, specifically that related to the 1997 incident, is viewed very seriously. The circumstances of the offence are contained in the NSW Police Fact Sheet and in Sentencing Remarks of Magistrate K Pearce of the Paramatta Local Court which provide:

    The facts of the matter indicate that Mr Hammond was driving in January of 1997 on Alfred Street, Granville. He was driving in such a way that he caused the rear of his motor vehicle to lose control and to fishtail and he was observed to cause his vehicle to fishtail about five times whilst driving in a northerly direction. Coming in the other direction was the victim in his motor vehicle. As they approached each other Mr Hammond lost control of his car and this resulted in a collision with the front of the victim's Suzuki Sierra.

    Both the accused and the victim were able to extricate themselves from their respective vehicles, although the victim was unable to open the driver's door and was forced to climb through the vehicle through the front passenger's window. Emergency services were notified and attended. The accused was breath tested and returned a positive sample. He blew 0.142 grams of alcohol which is, as Mr Cifuentes pointed out just slightly less than the high range, so it is very much at the upper end of the mid range drink driving range.

    The victim was conveyed to Westmead Hospital. He suffered serious life threatening injuries. He had to be resuscitated twice whilst undergoing open heart surgery to drain the blood from around his heart. At one stage the victim's heart was removed from his body due to it requiring massaging and because of that doctors were able to restart his heartbeat. After the operation whilst on a ward the victim again needed to be resuscitated numerous times. The extensive number of shocks required to restart the victim's heart has left him with permanent scarring and the injuries sustained by the victim in the collision are now lifelong injuries. He required 33 stitches to his chin due to a laceration and two of the victim's teeth were also shattered. The facts say that it is a miracle that he survived his injuries.

19. The seriousness of the applicant’s conduct is reinforced by the sentences imposed on him. Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved.

20. The applicant has offended with relative consistency for much of his adult life. Between 1986 to 2021, the applicant has repeatedly been found guilty of a range of driving offences, such as drink driving, driving unlicensed, speeding, and driving while disqualified. Most notably, after committing the 1997 offence, the applicant was convicted in New Zealand of a further offence of drink driving in 2002. Since returning to Australia in 2007 and relocating to Queensland, the applicant continued to breach various road safety laws with consistency.  

21. The applicant accepted at hearing that his driving record was “atrocious” and “disgusting” and was a result of “bad judgment calls”.

22. Additionally, the applicant has provided false or misleading information to the Australian government, in that he did not declare his previous criminal convictions on incoming passenger cards in 2018 and 2019. By that time, the applicant had multiple convictions both in New Zealand and Australia. The applicant provides two excuses for this non-disclosure. Firstly, he thought his past offences had expired and secondly, he said he was very upset because his parents had recently died and simply made a mistake. 

    Risk of Reoffending

23. While the applicant appears to have expressed remorse, I am not satisfied that he has taken full responsibility for his conduct. At hearing, the applicant agreed that it was only up until two weeks ago that he had insight into the potential consequences of drink driving on other road users. He also claims that he never understood the extent of injuries suffered by the victim resulting from the 1997 incident until recently.  

24. Most disconcerting is that shortly after the 1997 incident, the applicant absconded to New Zealand in an attempt to avoid arrest. At hearing, he stated that he knew he would likely go to prison, so he left the country to avoid punishment. The applicant only returned to Australia in 2007 because he believed that the 1997 offence had “been forgotten” and he thought the statute of limitations had expired. He attempted to explain that he had limited knowledge of the law and acted on incorrect advice. When asked in cross examination if he thought he should have taken responsibility for his actions, rather than absconding, the applicant disagreed and said he did not understand the severity of his actions.

25. In the report of Dr Gavan Palk, forensic psychologist, dated 29 April 2022, the applicant was assessed at a low risk of reoffending. Dr Palk noted in the report that the applicant reported no major health problems apart from hypertension, denied any misuse of alcohol or use of illicit drugs, and said after his marriage broke down in 1997 and he became depressed and misused alcohol. He opined that the applicant’s offending occurred in the context of youthful age, immaturity, poor coping skills, depression because of a marriage breakdown and misuse of alcohol.  Dr Palk stated that the applicant’s remorse and sorrow for his offending seemed genuine and noted that there was evidence of shame. Dr Palk further noted that the applicant appeared to have reflected deeply on the harm he had caused and on his past poor decisions. The applicant indicated that he had no intention of re-offending.

26. At hearing, Dr Palk said that he did not believe the applicant currently had a problem with alcohol dependency and was currently in remission. He opined that the applicant had “grown past” his previous offending and wouldn’t “wilfully” drink and drive again. He stated that the applicant was past his binge drinking lifestyle. Dr Palk opined that the applicant’s biggest protective factor in not re-offending was that the applicant does not want to be deported.  Regarding treatment, Dr Palk said he had advised the applicant that he needed to undertake alcohol related courses. He said the Online Traffic Offenders Rehabilitation Program (TORP) Special Program in Response to COVID 19 course completed by the applicant on 4 September 2022, did not specifically target drink driving and he needed a more intensive program or one-on-one work with a psychologist.

27. In cross examination, Dr Palk advised that prior to his arrest, the applicant’s risk of re-offending was medium to high risk. He said that since he has been incarcerated his risk had reduced to low, but that this level of risk could change if he did not address his alcohol use. Dr Palk said that the applicant needed to put into place relapse prevention strategies such as working with a psychologist to deal with his underlying problems causing alcohol use; improving ways to deal with stressors; and, formulating a plan to limit drinking (including alcohol free days, not having access to car keys when drinking, etc.). Failure to put these measures in place would increase the applicant’s risk of drink driving to medium to high risk.

28. At hearing, the applicant acknowledged his alcohol use and accepted that it has contributed to his offending conduct. At hearing, the applicant said having his visa cancelled was the wakeup call he needed, and that he has now changed his ways. He also said that since completing the TORP course, some two weeks prior to the hearing in this matter, that he now understood the consequences of drink driving. The applicant said he has not drunk alcohol since his arrest and incarceration and plans to rely on the help of others if released to make sure he does not drink and drive again. Specifically, his plan is to give his keys to someone else so he cannot drive. He also plans on asking his sister, Ms Jacqueline Hammond, for help with seeking and obtaining some form of medical assistance or alcohol/rehabilitation counselling services.

29. Frankly, in the circumstances of this case, I find the applicant’s insight into his offending and alcohol use too little too late. I also find the applicant’s strategies to ensure he does not reoffend entirely unsatisfactory.

30. Despite Jacqueline, having a lengthy career in drug and alcohol rehabilitation and “always having been willing to help in the past”, the applicant has not sought her help with his alcohol use until very recently. There is no other evidence to demonstrate that the applicant has undertaken any psychological treatment, rehabilitation treatment or specific educational courses to address his alcohol use. Most significantly, the applicant went on to commit further drink driving offences in NZ and Australia after nearly killing an innocent victim in the 1997 incident. Such a serious and life altering incident was not enough to give the applicant a ‘wakeup call’ at that time.

31. For these reasons, I find that there is a risk that the applicant may reoffend in the future. While the risk is currently low as the applicant is incarcerated, his risk of reoffending will likely increase should he be released due to the lack of relapse prevention strategies. He has failed to adequately address his long history of alcohol related behaviour and has only very recently accepted that the conduct of drink driving has significant consequences. He has utterly failed to take responsibility for his past actions. It appears that the current main motivating factor for change and insight into his past conduct is his desire to remain in Australia. Nearly killing an innocent victim in the 1997 incident and his subsequent arrest and incarceration failed to prompt such a change.

1. When considering risk, of greatest concern is that the applicant’s most serious conviction caused significant harm to the victim and as such, any risk that the applicant may drink and drive again, even if low, is significant and could involve physical and psychological harm to members of the Australian community.

2. This consideration significantly weighs in favour of not revoking the mandatory cancellation of the applicant’s visa.

   Family Violence

3. This consideration is neutral in considering whether to revoke the cancellation of the applicant’s visa.

   The best interests of minor children in Australia affected by the decision

4. Paragraph 8.3(1) of Direction 90 requires the Tribunal to decide whether revocation is, or is not, in the best interests of minor children in Australia affected by the decision.

5. The applicant identifies two children relevant to this consideration, both of whom are his nieces, namely Bella and Candace. Bella is the biological daughter of the applicant’s sister, Ms Angela Hammond. Candace is the biological daughter of Jacqueline’s ex-husband, Mr Terry Geddes, and presently resides in Papua New Guinea. Jacqueline claims that she is in the process of adopting Candace and intends to reside with her in Australia.

6. I note however that Candace is not a minor child in Australia. I have considered Candace’s interests in the context of “other considerations”.

7. As for Bella, there is no evidence before the Tribunal from her mother, Angela, nor evidence related specifically to the applicant’s relationship with her. I assume that Angela fulfills the parental role for Bella. 

8. This consideration weights in favour of revocation, but only slightly.

   The expectations of the Australian community

9. Paragraph 8.4 provides:

   (1)  The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

   …

   (4)  This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.

10. The applicant’s criminal offending plainly does not meet the expectations of the Australian community that as a non-citizen he will obey the laws of this country. I am satisfied that the Australian community would expect that the applicant should not hold a visa. This primary consideration weighs against revocation of the mandatory cancellation decision.

    Other Considerations

11. Other considerations are set out in Direction 90, at paragraph 9(1). The applicant has not made any claims in relation to non-refoulement obligations, nor is there any evidence of any relevant impact on the victim or Australian business interests. As such, the considerations that are relevant in this case are: the strength, nature and duration of the applicant's ties to Australia; and the extent of impediments if removed.

    Strength, nature and duration of ties

12. Paragraph 9.4.1(2) of the Direction requires that, in assessing this consideration, decision-makers must have regard to:

    a) how long the non-citizen has resided in Australia, including whether the non-citizen has 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.

13. The applicant arrived in Australia at the age of 20. The applicant has contributed to the Australian community through his work in construction, namely scaffolding, in mining and the construction of wharfs and jetties. His positive work ethic is supported by the statements of Todd Graham and Sam Kapetanas.   

14. The applicant’s immediate family members are in Australia including his daughter and two sisters. The applicant also has extended family in Australia including an aunt, uncle, four cousins, a nephew and a niece. The applicant’s aunt and uncle, Gail and Graeme Hammond and his sister Jacqueline have provided statements in support of the applicant.

15. The applicant says that he is very close with his family and they offer him a lot of support. At hearing however, the applicant acknowledged that he has not spoken to his sister Angela for two years and has not spoken to his daughter and nephew since his mother’s funeral in 2017. The applicant has expressed a desire to “reconnect” with his aunt and uncle, Gail and Graeme, if released from immigration detention. He did accept however, that his sister Jacqueline made contact with them some three years ago and that despite intending to make contact with Gail and Graeme within the two years prior to his incarceration, he failed to do so.

16. I do accept and acknowledge the close relationship the applicant has with his sister Jacqueline. As she stated, the applicant has been a main support for her throughout her life and she could “turn to him” particularly when they were younger. The applicant helped support Jacqueline, emotionally, physically and financially, over the years and particularly when she was a single mother raising her now grown son. She also expressed that without the applicant’s support, she would not have the career she has today nor be as stable in her life. Should the applicant be released and move back to Mackay, Jacqueline said she has talked about moving there with him. Jacqueline also stated that should the applicant return to New Zealand she would consider moving there, however, it would not be an easy move because she has a business and life here in Australia.

17. Considering the interests of the applicant’s niece, Candace, Jacqueline gave both written and oral evidence about her reliance on the applicant to provide support (emotional, physical, and financial) in helping her raise Candace should the adoption be finalised. Mr Geddes and Jacqueline both gave evidence that should the applicant be deported to New Zealand; the adoption of Candace may not go ahead. I have taken into account a number of circumstances, specifically, the fact that the applicant has never met Candace, the parental responsibility for Candice lies with Mr Geddes, and Jacqueline will be performing the parental role after adoption.

18. While I do accept the applicant’s separation from his family and friends in Australia may be difficult, it would not be permanent in the sense that there are no restrictions, other than perhaps financial preventing them from visiting the applicant in New Zealand in the future. They may also maintain contact via telephone, video and other electronic means.

19. I do accept that the applicant’s strength, nature, and duration of ties to Australia favours revocation of the mandatory cancellation decision.

    Extent of impediments if removed from Australia

20. The Direction provides, at paragraph 9.2, that:

    (1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    a) the non-citizen’s age and health;

    b) whether there are substantial language or cultural barriers; and

    c) any social, medical and/or economic support available to them in that country.

21. The applicant is an adult and is apparently in good health generally.

22. The applicant is a citizen of New Zealand and as such, the relevant country the applicant would be removed to is New Zealand. There are no evident language or cultural barriers for the applicant in New Zealand, given its broad social, political, and economic similarity to Australia. There is nothing to suggest that the applicant would not have available to him in New Zealand the equivalent social, medical or economic support available to other citizens.

23. The applicant has spent large amounts of his adult life visiting, living, and working in New Zealand. When he returned to New Zealand in 1997, he lived there for ten years and resided with his mother or in rental accommodation. During the ten-year period, the applicant was employed, owned and sold a courier run business, re-skilled and obtained unemployment benefits when out of work. During 2008 and 2011, when the applicant resided in Australia, he visited New Zealand approximately nine times for up to three weeks at a time. It is plain that the applicant is very familiar with life in New Zealand and is familiar with obtaining employment, training, accommodation, and social security benefits.

24. The applicant has no close family or significant connections currently in New Zealand and has expressed that he will be very lonely and scared if forced to leave Australia.

25. Dr Palk initially expressed an opinion in his report that that should the applicant be deported to New Zealand, it would have a substantive detrimental impact on him. At hearing however, Dr Palk was advised of the evidence regarding his previous ability to establish himself in New Zealand and the extent of his connections with his family members in Australia over recent years. Dr Palk agreed that the applicant was indeed resilient and would not struggle too much if returned to New Zealand given his history. He also doubted the significance the applicant placed on his family support network in Australia, considering the available evidence. He said that if Jacqueline considered moving to New Zealand, it would absolutely limit any impediments.    

26. While I accept that there will likely be an adjustment period for the applicant on his return to New Zealand, given his history in New Zealand, I do not believe the impediments are insurmountable. This factor does weigh in favour of revocation but only slightly.

    Decision

27. The primary considerations of the protection of the Australian community and the expectations of the Australian community weigh in favour of not revoking the visa cancellation decision. I am not persuaded that the other considerations outweigh the competing primary considerations in this case.

28. The decision under review is affirmed.  

I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

..............................[SGD]..........................................

Associate

Dated: 29 September 2022

Date(s) of hearing:	14 - 16 September 2022
Solicitor for the Applicant:	Mr T Mwilambwe, Armstrong Legal (GTC Lawyers)
Solicitor for the Respondent:	Mr A Taverniti, Sparke Helmore Lawyers