Hanger and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 1056
•15 May 2024
Hanger and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1056 (15 May 2024)
Division:GENERAL DIVISION
File Number: 2023/5251
Re:Russell Hanger
APPLICANT
AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member D. Cosgrave
Date:15 May 2024
Place:Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 13 July 2023 not to revoke the cancellation of the Applicant’s visa.
............[SGD]............
Member D. Cosgrave
Catchwords
MIGRATION – Mandatory visa cancellation – New Zealand citizen – Class TY Subclass 444 Special Category (Temporary) visa – failure to pass good character test – criminal record – fraud – possessing or receiving tainted property – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 99 applied – delegate’s decision not to revoke is affirmed.
Legislation
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Family Law Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Regulations 1994 (Cth)
Cases
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
Bartlett v Minister for Immigration and Border Protection [2017] AATA 1561
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Bushell v Repatriation Commission (1992) 175 CLR 408
Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588
Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173
Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
GJJF v Minister for Home Affairs (Migration) [2019] AATA 930
Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Kayo Rerekura v Minister for Home Affairs (Migration) [2019] AATA 153
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs [2022] HCA 26
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10
Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 31
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Tera Euna v Minister for Immigration and Border Protection [2016] AATA 301
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Roberts v Minister for Home Affairs (Migration) [2018] AATA 3970
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Secondary Materials
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Member D. Cosgrave
15 May 2024
INTRODUCTION
Mr Hanger seeks review of the Respondent’s delegate’s 27 October 2023 decision not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (the Visa).[1]
[1] Exhibit R1: G documents, G3, page 12. G documents are so named because they are provided under s 501G of the Migration Act 1958 (Cth). They consist of documents in the possession or control of the Respondent relevant to the making of a reviewable decision. They usually accompany the Minister’s written notice regarding a visa cancellation, refusal, or non-revocation.
The hearing was held by audio visual link in Brisbane on 13 and 14 February 2024. Mr Hanger, with assistance from his partner Ms Price, represented himself. The Respondent was represented by Mr West, a legal practitioner with Sparke Helmore Lawyers.
The Tribunal is indebted to Mr West for his careful advocacy and his assistance in helping ensure procedural fairness during the hearing.
Unless the context indicates otherwise, passages quoted in bold font have been emphasised by the Tribunal.
FACTS
5. Mr Hanger is a 39-year-old[2] New Zealand citizen who first arrived in Australia on 9 December 1988.[3] He has departed Australia several times since then and voluntarily removed himself from Australia to New Zealand on 15 October 2019.[4]
[2] Exhibit R1: G2, page 4.
[3] Exhibit R1: G6, page 37.
[4] Exhibit R1: G6, page 36.
On 24 April 2019 Her Honour Magistrate Bentley of the Queensland Magistrates Court convicted Mr Hanger of the charge of enter premises and commit indictable offence by break (on 9/3/2018) (the Index Offence).[5]
[5] Exhibit R1: G4, page 31.
Mr Hanger received a sentence of a term of imprisonment of 12 months for his Index Offence.[6]
[6] Exhibit R1: G4, page 31.
On 24 July 2019 Mr Hanger’s Visa was cancelled under s501(3A) of the Migration Act 1958 (Cth) (the Act) [7] as he did not pass the character test because of his ‘substantial criminal record’.[8]
[7] Exhibit R1: G3, page 9.
[8] As defined in ss 501(6)(a) and 501(7)(c) of the Act.
On 9 August 2019, Mr Hanger requested revocation of his Visa’s cancellation.[9]
[9] Exhibit R1: G17, page 71.
On 15 October 2019 Mr Hanger voluntarily removed himself to New Zealand.[10]
[10] Exhibit R1: G6, page 36.
On 1 July 2021, Mr Hanger was convicted of one count of burglary Oth (Day <$500) in New Zealand. He was sentenced to 4 months community detention.[11]
[11] Exhibit R3: Tender Bundle 5, page 279.
On 13 July 2023, a delegate of the Respondent decided not to revoke the mandatory cancellation of Mr Hanger’s Visa (the delegate’s decision).[12]
[12] Exhibit R1: G3, page 12.
On 19 July 2023, Mr Hanger applied to the Tribunal to review the delegate’s decision.[13]
[13] Exhibit R1: G1, page 1.
OFFENDING HISTORY
Mr Hanger’s criminal offending is summarised below:[14]
[14] Exhibit R1: G4.
Date
Event
Result
30 July 2004
Possessing Dangerous Drugs (On 24/6/04)
Possess Utensils Or Pipes Etc (Not To Be Used For Needles & Syringes) (On 24/6/04)
Possessing Anything Used/ For Use In The Commission Of Crime Defined In Part 2 (On 24/6/04)
No conviction recorded.
Fined $300
23 June 2015
10(2)(B) Possess Utensils Or Pipes Etc That Had Been Used (On 08/06/2015)
10a(1)(B) Possess Property Suspected Of Having Been Used In Connection With The Commission Of A Drug Offence (On 08/06/2015)
No conviction recorded
Fined $450.
15 September 2016
408c(1)(B) Fraud - Dishonestly Obtains Property From Another (On 20/12/2015)
421(2) Enter Premises And Commit Indictable Offence (On 05/03/2016)
433(1) Receiving Tainted Property (On 07/03/2016)
408c(1)(B) Fraud - Dishonestly Obtains Property From Another (On 05/03/2016)
408c(1)(B) Fraud - Dishonestly Obtains Property From Another (On 05/03/2016)
421(2) Enter Premises An (Between 30/10/2015 and 03/11/2015)
408c(1)(B) Fraud - Dishonestly Obtains Property From Another (On 01/11/2015)
421(2) Enter Premises And Commit Indictable Offence (On 29/01/2016)
421(2) Enter Premises And Commit Indictable Offence (Between 13/12/2015 and 16/12/2015)
408c(1)(B) Fraud - Dishonestly Obtains Property From Another (On 20/12/2015)
408c(1)(B) Fraud - Dishonestly Obtains Property From Another (On 29/11/2015)
Convicted on all charges.
18 months’ probation.
Ordered to pay restitution.
3 March 2017
791(2) Contravene Direction Or Requirement (On 20/10/2016)
51(1) Possession Of A Knife In A Public Place Or A School (On 12/10/2016)
29(1) Breach Of Bail Condition (On 14/11/2016)
29(1) Breach Of Bail Condition (On 12/12/2016)
29(1) Breach Of Bail Condition (On 16/12/2016)
Convicted on all charges.
Not further punished.
3 March 2017
10(2)(B) Possess Utensils Or Pipes Etc That Had Been Used (On 20/09/2016)
10(1)(B) Possessing Anything Used In The Commission Of Crime Defined In Part 2 (On 20/09/2016)
433(1) Receiving Tainted Property (Between 01/08/2016 And 20/09/2016)
433(1) Receiving Tainted Property (On A Date Unknown Between 01/08/2016 And 20/09/2016)
433(1) Receiving Tainted Property (On A Date Unknown Between 01/09/2016 And 20/09/2016)
433(1) Receiving Tainted Property (On A Date Unknown Between 01/01/2015 And 20/09/2016)
433(1) Receiving Tainted Property (On A Date Unknown Between 01/01/2014 And 20/09/2016)
433(1) Receiving Tainted Property (On A Date Unknown Between 01/01/2016 And 20/09/2016)
433(1) Receiving Tainted Property (On A Date Unknown Between 01/01/2015 And 20/09/2016)
398 Stealing (Between 01/09/2016 And 06/09/2016)
408c(1)(D) Fraud - Dishonestly Gain Benefit/ Advantage (On 05/09/2016)
433(1) Receiving Tainted Property (On 20/09/2016)
433(1) Receiving Tainted Property (On 20/09/2016)
433(1) Receiving Tainted Property (On 20/09/2016)
433(1) Receiving Tainted Property (On 20/09/2016)
252(1) Possess Tainted Property (On 08/01/2017)
10(1)(A) Possessing Anything For Use In The Commission Of Crime Defined In Part 2 (On 08/01/2017)
433(1) Receiving Tainted Property (On 08/01/2017)
Convicted on all charges.
Sentenced to 1 month’s imprisonment.
3 March 2017
Possessing Dangerous Drugs Schedule 1 Drug Quantity Of Or Exceeding Schedule 3 But Less Than Schedule 4 (On 8/01/2017)
Convictions recorded.
Sentenced to 9 months’ concurrent imprisonment.
17 August 2017
Receiving Tainted Property (On 11/06/2017)
433(1) Receiving Tainted Property (On 14/06/2017)
252(1) Possess Tainted Property (On 14/06/2017)
252(1) Possess Tainted Property (On 14/06/2017)
Convictions recorded.
Sentenced to 9 months’ concurrent imprisonment.
17 August 2017
10a(1)(B) Possess Property Suspected Of Having Been Used In Connection With The Commission Of A Drug Offence (On 14/06/2017)
10(2)(B) Possess Utensils Or Pipes Etc That Had Been Used (On 14/06/2017)
Convictions recorded.
Sentenced to 1 month’s concurrent imprisonment.
17 August 2017
9(1) Possessing Dangerous Drugs (On 14/06/2017)
Conviction recorded.
Sentenced to 3 months’ concurrent imprisonment.
24 April 2019
252(1) Possess Tainted Property (On 10/03/2018)
10a(1)(B) Possess Property Suspected Of Having Been Used In Connection With The Commission Of A Drug Offence (On 09/03/2018)
29(1) Breach Of Bail Condition (On 09/08/2018)
Conviction recorded.
No further punishment.
24 April 2019
10(2)(A) Possess Utensils Or Pipes Etc For Use (On 09/03/2018)
Conviction recorded.
Sentenced to 1 month’s concurrent imprisonment.
24 April 2019
421(2)&(3) Enter Premises And Commit Indictable Offence By Break (On 09/03/2018)
9(1)&(B) Possessing Dangerous Drugs Schedule 1 Drug Quantity Of Or Exceeding Schedule 3 But Less Than Schedule 4 (On 09/03/2018)
328a(1) Dangerous Operation Of A Vehicle (On 11/09/2018)
(Index Offending)
Convictions recorded.
Sentenced to 12 months’ concurrent imprisonment.
24 April 2019
754(2) Fail To Stop Motor Vehicle (On 11/09/2018) 754(2) Evasion Offence (On 12/11/2018)
Convictions recorded.
Sentenced to 9 months’ concurrent imprisonment.
Mr Hanger’s traffic offending is summarised below:[15]
[15] Exhibit R3: Tender Bundle 1, pages 1-14.
Date
Event
Result
7 June 2003
Exceed Speed Limit In Speed Zone By At Least 13 KMH Not More Than 20KMH
Fine and loss of points
18 December 2003
Exceed 50KMH (lower default speed limit) by more than 40KMH
Fine and loss of points
16 January 2004
High Speed Suspension
Posted
17 January 2004
Accumulation Of Demerit Points
Posted
6 February 2004
Suspended - High Speed
6 months
16 May 2004
Exceed Speed Limit In Speed Zone By At Least 13 KMH Not More Than 20KMH
Loss of points
5 June 2004
Accumulation Of Demerit Points
Posted
26 June 2004
Exceed Speed Limit In Speed Zone By More Than 40KMH
Fine and loss of points
1 July 2004
Suspended - Demerit Points
6 Months
18 July 2004
Willfully Start/Drive Vehicle In Way That Make Unnecessary Noise/Smoke
Fine And Loss Of Points.
19 August 2004
Unlicensed Driving
Fine And Disqualification
21 August 2004
Accumulation Of Demerit Points
Posted
23 August 2004
High Speed Suspension
Posted
13 September 2004
Suspended - High Speed
6 Months
16 September 2004
Suspended - Demerit Points
6 Months
9 October 2004
Accumulation Of Demerit Points
Posted
4 November 2004
Suspended - Demerit Points
6 Months
10 August 2005
Exceed Speed Limit In Speed Zone By At Least 13KMH Not More 20KMH
Loss Of Points
19 October 2006
Exceed Speed Limit In Speed Zone By More Than 30KMH Not More 40KMH
Fine
18 November 2006
Drive/Attempt Put In Motion/In Charge Motor Vehicle Under Influence Of Liquor (<0.150)
Fine And Disqualified
19 November 2006
Drive/Attempt Put In Motion/In Charge Motor Vehicle Under Influence Of Liquor (<0.150)
Exceed Speed Limit In Speed Zone By More Than 20KMH Not More 30KMH
Demerit Point Penalty 2 Or More Exceed Speed Limit > 20KMH In 12 Months
Drive/Park A Defective Vehicle
Fine And Loss Of Points
16 December 2006
Accumulation Of Demerit Points
Unclaimed
20 February 2007
Disqualification
3 Months’ Disqualification
21 May 2007
Accumulation Of Demerit Points
Posted
13 June 2007
Good Driving Behaviour.
12 Months
28 June 2007
Exceed Speed Limit In Speed Zone By More Than 30KMH Not More 40KMH
Demerit Point Penalty 2 Or More Exceed Speed Limit > 20KMH In 12 Months
Drive/Attempt Put In Motion/In Charge Motor Vehicle Under Influence Of Liquor (<0.150)
Loss Of Points
2 July 2007
Accumulation Of Demerit Points
Posted
1 August 2007
Demerit Point Suspension
3 Months’ Suspension
5 September 2007
Demerit Point Suspension
3 Months’ Suspension
28 September 2007
Disqualification
6 Months’ Disqualification
9 November 2007
SPER Suspension
31 October 2007
Demerit Point Suspension
6 Months’ Suspension
1 December 2007
SPER Suspension Lifted
15 May 2009
Drive/Attempt Put In Motion/In Charge Motor Vehicle Under Influence Of Liquor (<0.150)
Fine And Disqualified For 12 Months
13 September 2009
SPER Suspension
4 December 2009
Passenger (>16y/o Failed To Wear Seat Belt)
Fine
2 February 2010
SPER Suspension Lifted
3 October 2011
Exceed Speed Limit In Speed Zone By At Least 13KMH Not More 20KMH
1 Mar 2012
Drive Fail To Wear Seat Belt
Loss Of Points
28 April 2013
Exceed Speed Limit In Speed Zone By Less Than 13KMH
Loss Of Points
30 April 2013
Exceed Speed Limit In Speed Zone By Less Than 13KMH
Loss Of Points
10 July 2013
Exceed Speed Limit In Speed Zone By More Than 20KMH Not More 30KMH
Loss Of Points
9 October 2013
Demerit Point Suspension
3 Months’ Suspension
23 June 2014
Exceed Speed Limit In Speed Zone By At Least 13KMH Not More 20KMH
Fine And Loss Of Points
10 December 2014
Fail To Signal Intention To Change Direction Left
Fine And Loss Of Points
29 January 2015
Driver Use Hand Held Mobile Phone
Fine And Loss Of Points
9 February 2015
Exceed Speed Limit In Speed Zone By More Than 20 KMH Not More 30 KMH
Drive Fail To Wear Seat Belt
Drive/Park/Or Person To Drive/Park A Defective Light Vehicle
Fines And Loss Of Points
27 April 2015
Exceed Speed Limit In Speed Zone By Less Than 13KMH
Fine And Loss Of Points
1 March 2016
· Fail To Stop At Red Light
Fine And Loss Of Points
14 March 2016
· Exceed Speed Limit In Speed Zone By At Least 13KMH Not More 20KMH
Fine And Loss Of Points
23 March 2016
· Exceed Speed Limit In Speed Zone By Less Than 13KMH
Fine And Loss Of Points
5 May 2016
· Exceed Speed Limit In Speed Zone By At Least 13KMH Not More 20KMH
Fine And Loss Of Points
15 June 2016
Demerit Point Suspension
8 Months’ Suspension
25 July 2016
Unlicenced Driving
Fine
10 August 2016
Demerit Point Suspension
8 Months’ Suspension
13 August 2016
Exceed Speed Limit In Speed Zone By At Least 13KMH Not More 20KMH
Unlicenced Driving
Fine And Loss Of Points.
Disqualification
25 August 2016
Exceed Speed Limit In Speed Zone By More Than 20KMH Not More 30 KMH
Fine And Loss Of Points
31 August 2016
Disqualification For Unlicenced Driving
6 Months’ Disqualification
5 October 2016
Demerit Point Suspension
8 Months’ Suspension
12 October 2016
· Drive/Park/Or Permit Person To Drive/Park A Defective Light Vehicle
Loss Of Points
26 October 2016
SPER Suspension
8 January 2017
Unlicenced Driving
Fine
3 March 2017
Disqualification
6 months’ disqualification
3 March 2017
Disqualification
6 months’ disqualification
3 March 2017
Disqualification
24 months’ disqualification
7 April 2017
SPER suspension lifted
13 September 2017
SPER suspension
26 March 2018
SPER suspension lifted
20 June 2018
SPER suspension
11 September 2018
Dangerous Driving
Fail To Stop Motor Vehicle As Soon As Practicable
Disqualified Driving
Disqualified
12 November 2018
Fail To Stop Motor Vehicle As Soon As Practicable.
Drive While Relevant Drug Is Present
Disqualified
20 December 2018
SPER suspension lifted
24 April 2019
Disqualification
6 months’ disqualification
24 April 2019
Disqualification
24 months’ disqualification
24 April 2019
Disqualification
24 months’ disqualification
24 April 2019
Disqualification
24 months’ disqualification
24 April 2019
Disqualification
24 months’ disqualification
24 April 2019
Disqualification
3 months’ disqualification
17 May 2019
SPER suspension
3 September 2019
SPER suspension lifted
7 December 2019
SPER suspension
8 June 2020
SPER suspension lifted
19 December 2020
SPER suspension
19 June 2021
SPER suspension lifted
11 September 2021
SPER suspension
3 March 2022
SPER suspension lifted
21 July 2022
SPER suspension
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) and Section 500 of the Act are the sources of the Tribunal’s jurisdiction in this matter.
Section 501(3A) of the Act, read with section 501(6), obliges the Respondent Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test because they are serving a full-time sentence of imprisonment. The character test is defined in s 501(6) of the Act.
Under s 501CA(4), the Respondent Minister may revoke the original decision if:
(a)representations have been made by the person in accordance with the invitation;[16] and
(b)the Minister is satisfied that:
(i)the person passes the character test;[17] or
(ii)there is another reason why the original decision should be revoked.[18]
[16] Pursuant to s 501CA(4)(a) of the Act.
[17] Pursuant to s 501CA(4)(b)(i) of the Act.
[18] Pursuant to s 501CA(4)(b)(ii) of the Act.
MATTERS FOR CONSIDERATION
Mr Hanger’s Visa was cancelled on the basis that he had failed the character test once the delegate considered and applied Section 501(6)(d)(ii) to the facts of this matter.
The Tribunal’s first task is to consider whether Mr Hanger fails to pass the character test.
If Mr Hanger fails the character test, then the Tribunal’s second task is to consider the issue of whether, under section 501CA(4)(b)(ii) of the Act, it is satisfied of there being another reason to revoke the cancellation decision.[19] The Tribunal “stands in the shoes of the original decision-maker” but with regard for the situation as at the time of its consideration.[20]
[19] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).
[20] Nathanson v Minister for Home Affairs [2022] HCA 26 (‘Nathanson’); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 299 [40], 315 [100], 324-325 [134]; Bushell v Repatriation Commission (1992) 175 CLR 408, 425 (Brennan J); Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78, [10]-[11] (Logan, Perry, and Beach JJ).
The Tribunal finds that Mr Hanger fails the character test as a matter of law.[21] As summarised above under his Offending History, he received a sentence of imprisonment of 12 months for his Index Offending. This means that he has a ‘substantial criminal record’. This record compels the Tribunal to find that he is a person who does not pass the character test.[22] [23]
[21] Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at [63].
[22] Section 501(7)(c) of the Act.
[23] Section 501(6)(a) of the Act.
IS THERE ANOTHER REASON WHY MR HANGER’S VISA CANCELLATION SHOULD BE REVOKED?
The Full Court of the Federal Court in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172 at [27], approving Justice Colvin’s reasoning in Viane,[24] identified the following principles as being relevant to the statutory task conferred by Section 501CA(4):
‘If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation….’
[24] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
When the Tribunal assesses and considers the factors weighing for and against setting aside a visa cancellation, section 499(2A) of the Act requires it to comply with Direction 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).[25]
[25] See Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at para [38].
THE DIRECTION
The Direction contains mandatory and aspirational considerations guiding the exercise of statutory power under the Act.[26]
[26] BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99, at [22], citing with approval Matthews v Minister for Home Affairs [2020] FCAFC 146, at [45].
The following principles in paragraph 5.2 of the Direction inform the decision-making process:[27]
1Australia 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.
2Non-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.
3The 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.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6Decision-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 8.55(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.
[27] Paragraph 5.2 of the Direction.
Paragraph 6 of the Direction provides that, informed by the above principles, a
decision-maker must consider the Primary and Other considerations described in Paragraphs 8 and 9 of the Direction where relevant to their decision making.Paragraph 7(1) of the Direction provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources.’
Paragraphs 7(2)-(3) of the Direction state that ‘Primary considerations should generally be given greater weight than the other considerations,’ and ‘One or more primary considerations may outweigh other primary considerations.’
Paragraph 8 of the Direction provides the following primary considerations:
·protection of the Australian community from criminal or other serious conduct;
·whether the conduct engaged in constituted family violence;
·the strength, nature and duration of ties to Australia;
·the best interests of minor children in Australia; and
·expectations of the Australian community.
Paragraph 9 of the Direction identifies the following non-exhaustive list of other considerations to be considered where relevant:
·legal consequences of the decision;
·extent of impediments if removed;
·impact on victims; and
·impact on Australian business interests.
The Tribunal is not precluded from finding that a consideration specified under Paragraph 9 of the Direction has equivalent or greater weight than a consideration specified under Paragraph 8 of the Direction. This depends on each matter’s specific circumstances.[28] The weighing process is substantively left to the individual decision maker exercising the relevant power under section 501 of the Act.[29]
EVIDENCE
[28] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, at [23] and [28] (Colvin J); FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
[29] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, at [57].
Documentary evidence
The Tribunal received written evidence during the hearing, a list of which is attached to this Decision and marked ‘Annexure A’.
The Tribunal considers that the following written evidence constitutes Mr Hanger’s SFIC and statements:
·G2, page 7.
·G18 – 9 August 2019 Personal Circumstances Form.
·G19 – 10 November 2022 Personal Circumstances Form.
·G26 – 17 February 2023 email from Mr Hanger.
·Exhibit A1 – Mr Hanger’s SFIC.
·Exhibit A7 – Mr Hanger’s 15 January 2024 handwritten statement.
·Exhibit A7.1 – Mr Hanger’s 15 January 2024 second handwritten statement.
Witnesses
The following people appeared as witnesses and provided testimony:
·Mr Hanger.
·Ms Price.
·Ms Nikkita Jackson.
·Ms FT, a minor child.
·Mrs Wendy Price.
The Tribunal’s assessment of the witnesses
The Tribunal observed Mr Hanger as he gave evidence.
Mr Hanger himself wrote that he had issues reading and writing.[30] Ms Price assisted Mr Hanger and they effectively acted as co-advocates.
[30] Exhibit A7.1.
It was apparent from his actions and words that he cares deeply for Ms Price and their children and that they have a loving and mutually supportive relationship.
He presented as honest, at times brutally so in regard to his drug offending and poor decision-making.
Ms Price was a powerful and articulate advocate for Mr Hanger, despite her obvious and understandable distress and mental health concerns. She demonstrated courage, honesty and commitment in providing clarity about Mr Hanger’s and her circumstances.
PRIMARY CONSIDERATIONS
Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct
When considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind that the Australian Government is committed to protecting the Australian community from harm because of criminal activity or other serious conduct by non-citizens.
Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens with the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(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.
Tribunal’s consideration: The nature and seriousness of Mr Hanger’s conduct
Paragraph 8.1.1(1)
This paragraph states that, in considering the nature and seriousness of the non-citizen’s ‘criminal offending or other conduct to date’, decision-makers ‘must have regard to the following’:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) 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;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, 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, or an offence against section 197 A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has reoffended 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).
(h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Tribunal has considered the testimony and submissions about Paragraph 8.1.1 of the Direction.
Summarising Mr West’s contentions:[31]
·The Respondent Minister contends that Mr Hanger’s offending should be considered as serious for the reasons set out as follows:
oMr Hanger has been sentenced to multiple terms of imprisonment for his offending (paragraph 8.1.1(1)(c) of Direction 99). Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy. Where a Court has sentenced an offender to a term of custodial imprisonment, this should be viewed as a reflection of the objective seriousness of the offences involved.[32]
oRegard must also be had to the frequency and cumulative effect of Mr Hanger’s offending (paragraphs 8.1.1(1)(d) and (e)). He has demonstrated himself to be a frequent offender who regularly commits offences of a serious nature and these offences have increased from possession of small quantity of drugs and drug paraphernalia to possessing large quantities of drugs and dangerously operating motor vehicles.
oThe sentencing judge on 24 April 2019 noted that Mr Hanger’s offences ‘encompassed serious offending’,[33] including the dangerous operation of the motor vehicle. Offences relating to the dangerous operation of motor vehicles, drink driving, and operating vehicles at high speed are inherently serious given the risk it poses to the community at large. [34]
oMr Hanger has been ordered to pay restitution totalling $19,103.76.[35] The significant financial impact of his offending further underscores its severity.
[31] Exhibit R2: Respondent’s Statement of Facts’ Issues and Contentions (SFIC), at [29].
[32] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].
[33] Exhibit R1: G7, page 39, line 8.
[34] Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561; PKZM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 768.
[35] Exhibit R1: G4, page 33.
Paragraphs 8.1.1(1)(a)(i), 8.1.1(1)(a)(ii) and 8.1.1(1)(a)(iii)
Mr Hanger has recorded an extensive criminal history between 2004 and 2019 in Australia, comprising of multiple dishonesty, property and drug offences. This history also encompasses driving offences, bail breaches, contraventions of directions or requirements and possession of a knife. However the history does not involve violence. The results of Mr Hanger’s offending include monetary penalties, restitution orders, probation and terms of imprisonment ranging from 1 month to 12 months.
His history does not enliven these paragraphs.
The Tribunal finds that these paragraphs carry a neutral weight.
Paragraphs 8.1.1(1)(b)(i),(ii),(iii) and (iv)
These paragraphs are not relevant. The Tribunal did not see any evidence that Mr Hanger has committed any offences described in these paragraphs.
The Tribunal finds that these paragraphs carry a neutral weight.
Paragraph 8.1.1(1)(c)
In applying this paragraph, the Tribunal cannot consider sentences imposed on Mr Hanger for:
·any violent offending that he may have committed against women or children (Paragraph 8.1.1(a)(i)),
·acts of family violence (Paragraph 8.1.1(a)(ii)); and
·any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage (Paragraph 8.1.1(b)(i)).
Mr Hanger has been sentenced to multiple terms of imprisonment during his offending history for multiple dishonesty, property and drug offences.
The Tribunal considers that this paragraph is enlivened.
The Tribunal finds that it carries weight in favour of affirming the delegate’s decision.
Paragraph 8.1.1(1)(d)
This paragraph addresses two specific aspects of a non-citizen's offending: its frequency and/or whether there is any trend of increasing seriousness.
Frequency
Mr Hanger’s criminal history encompasses a period running from 2004 to 2019, with a gap between 2004 and 2015.[36] His traffic offending starts in 2003 and concludes in 2018.[37]
[36] Exhibit R1: G4, pages 30-34.
[37] Exhibit R3: Tender Bundle 1, pages 1-14.
The Tribunal considers that his criminal and traffic offending can be described as frequent and sustained.
The Tribunal finds that this carries some weight in favour of affirming the delegate’s decision.
Trend of increasing seriousness
Mr Hanger’s criminal offending changed over time from possession of small quantity of drugs and drug paraphernalia to possessing significant quantities of drugs. This shows an escalation in seriousness leading to imprisonment following his Index Offending.
Mr Hanger’s traffic offending, as set out in the evidence and summarised above, also increases in seriousness over time. This is because it shows a sustained disregard for public safety. Mr Hanger also lost his licence for long periods as a result of his driving record.
The Tribunal finds that both Mr Hanger’s criminal and traffic offending show a trend of increasing seriousness.
The Tribunal finds that this carries some weight in favour of affirming the delegate’s decision.
Paragraph 8.1.1(1)(e)
This paragraph addresses the cumulative effect(s) of Mr Hanger’s repeated offending.
Mr Hanger’s long periods of criminal and traffic offending have likely caused a cumulative and substantial effect on the Australian community, the police services and the court system. This substantial effect is partially recognised by the restitution orders made against Mr Hanger.
This carries weight in favour of affirming the delegate’s decision.
Paragraphs 8.1.1(1)(f),(g) and (h)
There is no evidence or testimony before the Tribunal in this matter that enlivens these paragraphs. There is a suggestion that Mr Hanger was aware of his deportation risk while in prison when applying for parole but there is no other evidence that clarifies this.[38]
[38] Exhibit R3: Tender Bundle 4, page 256.
The Tribunal finds that these paragraphs carry a neutral weight.
Tribunal’s finding: The nature and seriousness of Mr Hanger’s conduct
The Tribunal has sought to apply and consider each of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction.
With reference to the relevant and applicable paragraphs referred above, the Tribunal finds that the nature of the totality of Mr Hanger’s criminal offending and other conduct can be characterised as serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
This aspect of the Direction requires the Tribunal to assess the risk that Mr Hanger poses to the Australian community if he reoffends, taking into consideration the nature of any harm and its probability.
Paragraph 8.1.2(1)
This paragraph states:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2)
This paragraph provides that, in considering the risk to the Australian community, a decision-maker must have regard to the following factors on a cumulative basis:
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:
(i) information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c) where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
In assessing:
·the nature of the harm to individuals or the Australian community should Mr Hanger engage in further criminal or other serious conduct; and
·the likelihood of Mr Hanger engaging in further criminal or other serious conduct.
The Tribunal has first considered the evidence, the testimony and then Mr Hanger’s and Mr West’s respective submissions in relation to paragraph 8.1.2.
Summarising Mr Hanger’s submissions, evidence and testimony on this issue:
·Mr Hanger has taken responsibility for his offending and repeatedly expressed his remorse in his statements.
·In his two Personal Circumstances Forms[39] he wrote that the only risks that would lead him to offend again would be if he lost his family’s support or became involved with ‘the wrong people’.[40]
·All of his statements describe his focus on his family and the importance he attaches to caring for them.
·He states that he is ‘undergoing some mental health appointments to help show I am being good…’[41] but provided no evidence of these.
·Mr Miller’s 31 July 2019 statement states that he is a valuable team member with a high standard of work and reliability.[42] He worked for Mr Miller’s business for 2 years. Mr Miller considers that Mr Hanger is of good character, can make a good life for his family and should have his Visa restored. This was uncontested.
·Mr Miller’s statement provides:[43]
‘From conversations with Russell I know his family means the world to him and also know they depend on him, they seem a very close knit family.’
·Mr Hanger disputes the circumstances of his New Zealand offending, stating that he had left their home after an argument with Ms Price, drove for a period, pulled over to relieve himself near to his then work site and was caught by police there.
[39] Exhibit R1: G18 and G19.
[40] Exhibit R1: G18, page 86.
[41] Exhibit R1: G19, page 99.
[42] Exhibit R1: G22.
[43] Exhibit R1: G22.
Summarising Mr West’s contentions on this paragraph:
·If Mr Hanger were to reoffend by committing further offences, the nature of the harm is potentially catastrophic physical harm, or even death should he commit further offences involving the dangerous operation of a motor vehicle.
·Mr Hanger has also been convicted of being found in possession a ‘significant quantity of methylamphetamine’ which, in and of itself has the potential to cause harm to members of the Australian community, through its continued circulation.[44]
[44] Exhibit R1: G7, page 39.
·The Respondent Minister otherwise contends the harms that drugs, particularly methylamphetamine, causes the Australian community are far reaching, including the financial strain it puts on government services to deal with those impacts. While the Respondent Minister accepts the Tribunal is bound by the reasoning in Buntin v Minister for Immigration, Citizenship and Multicultural Affairs[45], that such a consideration is an irrelevant one, the Respondent Minister formally[46] submits that such reasoning in plainly wrong.[47] There is nothing in the subject matter, scope and purpose of the Act or the Direction which grounds such a finding or seeks to limit the Tribunal’s decisional freedom in that way.
[45] Buntin v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1055.
[46] In the sense described in Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24.
[47] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 (2021) 287 FCR 181.
·Turning to the likelihood of the applicant engaging in further criminal or other serious conduct, the Respondent Minister contends that there remains an ongoing and unacceptable risk of Mr Hanger reoffending for these reasons:
oThere is no psychological opinion providing any professional risk assessment of Mr Hanger’s likelihood of reoffending. Mr Hanger was however assessed against the Department of Corrections Risk of Reoffending tool on 3 May 2019 and scored 11 out of 22. To the extent that the Tribunal accepts Mr Hanger’s risk of reoffending is consistent with that assessment, the Minister contends it is an unacceptable risk.[48]
[48] Exhibit R3: Tender Bundle 4, page 252.
oThere is no evidence of Mr Hanger undertaking any rehabilitation to address his criminogenic needs. While he was directed to attend a psychologist as part of his community-based orders, he failed to attend on more than one occasion.[49] In those circumstances, the Tribunal cannot be confident such treatment was effective, or that Mr Hanger will adhere to similar treatment in the future. This is particularly so where the Tribunal does not have the comfort of Mr Hanger being subject to a parole order[50], and corresponding directions to engage in treatments, and that Mr Hanger stated in his relapse prevention plan in September 2017 that he would seek treatment, but ultimately did not do so.[51]
[49] Exhibit R3: Tender Bundle 4, pages 205 and 210.
[50] Exhibit R3: Tender Bundle 4, page 240.
[51] Exhibit R3: Tender Bundle 4, page 263.
oMr Hanger attributes his offending to his ‘misses’ mental health, a pregnancy, then she suffered postnatal depression which was stressful.’
oHe also attributes his offending to financial stress.[52] The Respondent Minister contends that this shows a lack of insight into the cause of the applicant’s offending, given it makes no mention of his deeply entrenched drug addiction, which has been noted to play a significant role in his offending.[53] The Respondent Minister further contends that, to the extent that financial stressors have been noted as being a cause of Mr Hanger’s offending[54], the lack of evidence that Mr Hanger will be gainfully employed should he return to Australia should also be of concern.
oTraditional protective factors, such as employment, his children and his partner have not prevented Mr Hanger from offending.[55] In fact, it should be of some concern that Mr Hanger has sought to use his employment as a means to facilitate his offending and has attributed his offending behaviour to the stressors of his relationship.
oMr Hanger further states that he ‘knows the driving offences it was silly but I always only done it for the right reasons just poor choices’. It is difficult to see how the dangerous operation of a motor vehicle could ever be for the ‘right reasons’, which further demonstrates Mr Hanger’s minimal insight into his offending. [56]
oMr Hanger has received a number of custodial and non-custodial sentences. These measures did not deter him, and he continued to reoffend and misuse drugs, such that the Tribunal cannot be confident similar measures will be effective into the future.[57] The Respondent Minister submits it is particularly telling that the mechanism of Mr Hanger’s offending, being obtaining stolen goods from constructions sites, remained consistent despite these sentences.
oWhile being sentenced in April 2019, the sentencing judge noted Mr Hanger’s long-term drug addiction and that he had ‘not done much about that’ despite the offences being before the court for some time. This does not bode well for Mr Hanger’s engagement in rehabilitation into the future.[58]
oMr Hanger appears to be aware from as early as September 2017 that his offending could result in the cancellation of his visa.[59] The fact that Mr Hanger continued to offend even with this awareness does not suggest that the threat of his visa again being cancelled will be a deterrent into the future.
oMr Hanger has offended while in the New Zealand community. There is no clearer indication that he is an unacceptable risk of reoffending then his continued offending behaviour.
·Overall, the Respondent Minister contends that this consideration weighs heavily in favour of non-revocation.
Tribunal’s consideration: The nature of the harm to individuals or the Australian community were Mr Hanger to engage in further criminal or other serious conduct
[52] Exhibit R1: G18, page 85.
[53] Exhibit R3: Tender Bundle 4, pages 227-228.
[54] Exhibit R3: Tender Bundle 4, page 247.
[55] Exhibit R3: Tender Bundle 4, page 205.
[56] Exhibit R1: G18, page 85.
[57] Exhibit R3: Tender Bundle 4, page 232.
[58] Exhibit R1: G7, page 39.
[59] Exhibit R3: Tender Bundle 4, pages 199 and 257.
The Tribunal considers that the evidence before it demonstrates that the nature of the harm to both individuals and the Australian community, including witnesses, arising from both Mr Hanger’s past criminal conduct was significant. His driving misconduct has not injured anyone to date but does present the potential for causing catastrophic harm.
If Mr Hanger were to engage in further criminal conduct in Australia, the nature of the harm to other individuals or the Australian community would likewise be significant.
If Mr Hanger were to engage in further traffic offending, in Australia, similar to his historic offending and consequently harm someone else, the potential nature of the harm to other individuals or the Australian community would likely be terrible and catastrophic.
Tribunal’s finding: The nature of the harm to individuals or the Australian community were Mr Hanger to engage in further criminal or other serious conduct
The Tribunal finds that further future criminal conduct of the categories Mr Hanger has previously engaged in would result in significant harm to the Australian community.
The Tribunal finds that further future traffic offending of the categories Mr Hanger has previously engaged in would potentially result in catastrophic harm to the Australian community.
Tribunal’s consideration: the likelihood of the non-citizen engaging in further criminal or other serious conduct
The Tribunal has holistically considered the totality of the parties’ contentions, oral testimony and documentary evidence addressing the likelihood of Mr Hanger engaging in further criminal or serious conduct.
The Direction’s clear intention is that the threshold is whether there is ‘a’ risk.[60] [61]
The Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Act 2014 stated (at [46]):‘The purpose of this amendment is to clarify the threshold of risk that a decision maker can accept before making a finding that the person does not pass the character test in relation to paragraph 501(6)(d) of the Migration Act. The intention is that the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.’
[60] See the discussion in GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019) at [48]–[52].
[61] See the discussion in Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 at [27].
The issues surrounding the consideration of risk under s.501(6)(d) of the Act, from which paragraphs 8.1.2(1) and (2) are drawn, have been extensively considered by the Tribunal and the superior courts.[62]
[62] See, for example, Rahman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888 (20 April 2020); QKVH and Minister for Home Affairs [2020] AATA 4431 (‘QKVH 2020’); Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019); Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153.
The Full Court of the Federal Court in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 (‘Baker’), at 194 stated that the reference to ‘criminal conduct’ is:
‘…not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor’s character. Of course, in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material.’
(Emphasis added)
In Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (‘Sabharwal’), the Full Court of the Federal Court (Perram, Murphy and Lee JJ) stated at [2]:
‘… Section 501(6)(d)(i) provides that a person does not pass the character test if
“in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would ... engage in criminal conduct in Australia”. The section requires an evaluative judgment by the decision-maker, in the present case the Minister personally, as to whether the decision-maker is satisfied that there is such “a risk.” Then, if the decision-maker is so satisfied, the decision-maker has a discretion to refuse to grant a visa to the person.’In Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (‘Guo’) Chief Justice Brennan, Justices Dawson, Toohey, Gaudron, McHugh and Gummow of the High Court observed as follows (at 574-575):[63]
‘The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.’
(Emphasis added)
[63] QKVH and the Minister for Home Affairs (‘QKVH 2020’) [2020] AATA 4431 (2 November 2020) at [5].
Her Honour Justice Mortimer explored the notion of risk and its nexus to future possibilities in Murphy v Minister for Home Affairs [2018] FCA 1924 (‘Murphy’), at [37] where Her Honour noted:[64]
‘That is, part of the Tribunal’s task was to decide not only whether the Applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated”.’
[64] Murphy v Minister for Home Affairs [2018] FCA 1924, [37].
Consequently, applying the reasoning described in Baker, Sabharwal and Guo to this matter in terms of the task described in Murphy, the Tribunal’s task is to assess and consider whether there is ‘a risk’ or a likelihood of Mr Hanger engaging in further future criminal or serious conduct.
A consideration of the risk or likelihood of Mr Hanger engaging in further criminal or serious conduct should encompass the factors that:
(a)facilitate the risk; or,
(b)conversely, hinder or retard the risk.
Doing this enables the Tribunal, in making its assessment, to consider Justice Mortimer’s question as to ‘whether the risk should be “tolerated”.’
Factors that facilitate the risk
In outlining the factors contributing to his offending, Mr Hanger refers to his partner’s mental health, her pregnancy and her subsequent post-natal depression, all of which caused him stress. He also believes the loss of his job caused him financial stress.[65]
[65] Exhibit R1: G18 and G19.
Mr Hanger admits his driving offences were ‘silly’ but ‘always only done for the right reasons, just poor choices’. Mr Hanger also identifies that the absence of family support, poor decision-making, unemployment, lack of support and associating with the wrong people are possible risk factors in his offending behaviour.[66]
[66] Exhibit R1: G18 and G19.
An assessment of the evidence, testimony and information before the Tribunal shows that drugs and drug addiction are key risk factors in terms of Mr Hanger offending. This does not diminish the seriousness of his conduct or his risk of reoffending. The Tribunal finds that the likelihood of Mr Hanger committing further offences is affected by whether his unmet therapeutic needs are addressed, in particular his long-term drug addiction that contributed to his criminal behaviour.
In her sentencing remarks, Her Honour Magistrate Bentley noted:[67]
‘You continued, then, to commit those offences again two months later, in November 2018. You were on parole for some of the offences. You come before the court with a five-page criminal history which encompasses numerous drug offences, breaching bail, and dishonesty offences. You have previously been imprisoned for those. You also come before the court with a seven page traffic history which includes a previous conviction for disqualified driving, so I have to take that into account.
I do take into account that you are – have a long-term drug addiction, and that seems clear from your criminal history and the offences before the court. It seems that, to date, you have not done much about that. You say that you are intending to do something about it, but these offences have been before the court for some time, and you have not got yourself any counselling as yet.’
[67] Exhibit R1: G7, page 39.
Mr Hanger’s 2019 prison parole report notes:[68]
‘Prisoner Stephens [Hanger] advised that his drug use over the past 7 years had been prolific. However, he can acknowledge that the 2 years prior to his initial Incarceration had been more volatile that the other years. Prisoner Stephens reported that In the 2-year period prior to his Initial incarceration he had commenced selling illicit drugs to fund his addiction, advising that any of the profits made were being redistributed back into his own drug use.
Prisoner Stephens advised that the peak of his drug use he was using "a ½ bail [sic] a day", reporting that he would consume this drug by way of smoking. He denied engaging in Intravenous drug use at any time, reporting no tolerance for such. Prisoner Stephens reported that he has been abstinent from drug use for a period of 9 months to date, denying that he had relapsed whilst subject to Court Ordered Parole.
Prisoner Stephens denied engagement in regular drug counselling In the community. However, he advised that he had met with a drug and alcohol counsellor "a few times" at the direction of his parole officer. Prisoner Stephens advised that he has been abstinent from ail drug use since January 2017, which he perceives negates the need for him to enter drug rehabilitation treatment However, he reported his willingness to engage in a substance abuse program if directed by the Board.’
[68] Exhibit R3: Tender Bundle 4, page 257.
In the same application, Mr Hanger listed 8 high risk situations he thought he may have to deal with:[69]
‘Social gathering with old acquaintances
Family issues
Parties or celebrations
Funerals, loss in the family
Time alone where I'm more vulnerable
Times of high stress
Holidays from work
No financial income’
[69] Exhibit R3: Tender Bundle 4, page 263.
There was no evidence before the Tribunal directly linking Mr Hanger’s drug use to his traffic offending. The Tribunal notes his several traffic offences involving drinking and driving. Mr Hanger’s lack of reflection in terms of his traffic offending beyond his observations of poor decision making is concerning, especially given the fact that his traffic offending has a longer history than his criminal conduct.
The High Court’s reasoning in Guo that ‘the extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity’ can be applied here.
The Tribunal considers it more likely than not that, without drug counselling and rehabilitation, Mr Hanger may face stress factors like unemployment, associating with former anti-social friends and being alone and consequently resort to taking drugs, reinstating the risk factors that led to his offending.
Of more concern is the risk that Mr Hanger will resume his traffic offending, especially as his family support proved to be a poor risk management factor in the past.
Factors that hinder or retard the risk – rehabilitation, remorse and risk management factors
In his parole application, Mr Hanger also identified ways to address these risks and manage them:[70]
‘Working full time
Counselling
Utilising with my parole officer
Spending time with family
Being a positive role model for my kids
Saying hello and goodbye straight away to old friends
Strategies I’ve picked up to stay clean
Support network’
[70] Exhibit R3: Tender Bundle 4, page 262.
The information before the Tribunal suggests Mr Hanger has limited insight into the causes of his offending and his need to engage with professional services to address his drug addiction. Mr Hanger seems to be in denial in relation to his drug addiction, having failed to openly discuss the negative effects of drugs on his behaviour. Further, his explanations for his driving offending, namely that he drove for ‘right’ reasons, are not to his credit. This demonstrates a lack of insight and suggests that he does not comprehend the unlawfulness of his actions and the risk he poses to the community.
While Mr Hanger may be remorseful for the effect his offending on his family and on his life, the Tribunal is not satisfied that he is remorseful for the effect of his offending on his victims and on the broader Australian community.
The extent to which Mr Hanger’s immediate and extended family can assist him in the rehabilitative process is greatly limited given their lack of professional qualifications or experience in the fields of psychology and drug counselling. These supports were available to him in the past and did not prevent him from repeated offending.
While Mr Hanger has referenced the commencement of his relationship with Ms Price as a protective factor, he reoffended after the relationship had commenced and has described family issues as a risk factor in his parole application.[71]
[71] Exhibit R3, Tender Bundle 4, page 263.
There is abundant evidence before the Tribunal regarding the depth and intensity of the love and respect between Mr Hanger, his partner, his children and his partner's family. While these relationships constitute a strong risk management factor, they are unfortunately tempered to an extent by how Mr Hanger manages Ms Price’s mental health.
In his testimony Mr Hanger made it clear that at present he understandably prioritises caring for Ms Price and their children:[72]
‘Tribunal: Do you want to talk about any issues of employment and housing in New Zealand?
Mr Hanger: In relation to employment, it’s hard with Shay’s mental health because some days she can’t handle the kids, so I can’t go to work.’
[72] Transcript, page 67, lines 37-41.
The Tribunal wants to make it very clear that Mr Hanger’s actions in this respect are commendable.
Unfortunately, the consequences of his actions include a patchy employment history in New Zealand and reduced income, both of which the Tribunal considers to be risk factors.
The Tribunal has no evidence before it that Mr Hanger has undertaken rehabilitation courses, especially in relation to drug abuse.
Regarding his driving offences, the Tribunal notes Mrs Wendy Price’s statement:[73]
‘Tribunal: Thank you. Are you aware of his traffic offending?
Mrs Wendy Price: Yes.
Have you seen any signs when he was in Australia that he is a better driver?
Mrs Wendy Price: Yes, Russell has definitely changed in all aspects. I give him credit. I am quite proud of him.’
[73] Transcript, page 53, lines 32-36.
However, there is no evidence before the Tribunal in terms of Mr Hanger endeavouring to improve his driving or undertake formal rehabilitation to curb his tendency to commit driving offences.
Mr Hanger has emphasised his remorse in recent statements. The Tribunal considers that these expressions are genuine.
Risk analysis and consideration
The evidence identifies several static and dynamic risk management factors for Mr Hanger. These include Ms Price and his immediate and extended family.
The Tribunal has considered the evidence above, applying Guo that the extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.
Based on Mr Hanger’s past, risk factors such as drugs, alcohol and poor decision-making increase his risk of engaging in problematic behaviour which manifests as a risk of reoffending. Acknowledging his evident reflection about his plight, the Tribunal still cannot be satisfied that there are mitigating factors that are sufficient to compensate, manage or neutralise these risk factors.
Tribunal’s finding: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Considering all these factors and applying a synthesis approach as set out in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs[74], the Tribunal concludes that there is a significant and material risk that Mr Hanger will in the future reoffend by committing a criminal offence or, more likely, a traffic offence. This conclusion is not based solely on his past criminal and general conduct, but these do serve as indicators. The conclusion also relies on the current adverse balance of risk factors and risk management factors in Mr Hanger’s life as set out in the evidence before the Tribunal.
[74] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138.
Consequently, by applying the reasoning in Sabharwal FC[75], Murphy[76] and Guo[77] to this matter, the Tribunal’s task is to assess whether there is ‘a risk’ or a likelihood of Mr Hanger engaging in further future criminal or serious conduct.
[75] Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, [58] (‘Sabharwal (FC)’).
[76] Murphy v Minister for Home Affairs [2018] FCA 1924.
[77] Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22.
The Tribunal finds that the risk to the Australian community should Mr Hanger commit further offences or engage in other serious conduct both exists and is significant and material.
Conclusion: Primary Consideration 1: Protection of the Australian community
This consideration weighs very heavily and substantively in favour of affirming the delegate’s decision.
Primary Consideration 2: Family violence committed by the non-citizen
Both parties contend that is not a relevant consideration in this matter.[78]
[78] Exhibit R2, page 12, para [35], and Transcript, page 59, lines 21-24.
Conclusion: Primary consideration 2: Family Violence committed by the non-citizen
This consideration has a neutral weight.
Primary Consideration 3: The strength, nature and duration of ties to Australia
Paragraph 8.3 of the Direction provides:
1Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
2In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
3The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
4Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a)the length of time the non-citizen has resided in the Australian community, noting that:
(i) considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
(ii) more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii) less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia.
Summarising Mr Hanger’s arguments from his statements that the Tribunal has identified above:
·Mr Hanger is very close to Ms Price, their children and her children from a previous relationship. Likewise, Ms Price is very close to Mr Hanger and travelled to be with him in New Zealand at a significant cost to her mental health.
·Two of Mr Hanger and Ms Price’s three minor children are Australian citizens and are with them in New Zealand. The third and youngest child is also with them, was born in New Zealand and has the right to reside indefinitely in Australia. Two of Ms Price’s minor children from a previous relationship are with them and are also Australian citizens.
·Mr Hanger appears to be close to Ms Price’s family in Australia. However, Mr Hanger’s low income in New Zealand jeopardises buying groceries for his immediate family there, let alone regular communication with family members in Australia.
·Ms Wendy Price (Ms Price’s mother) writes that deporting Mr Hanger would be devastating to the children as their dream was for them to start afresh in a different area of Queensland upon his release.[79]
·Endearing letters from his children to Mr Hanger have been provided to confirm the bond Mr Hanger has with them.[80]
·Mr Hanger has resided in Australia since his childhood and formative years. He considers Australia to be his home.
[79] Exhibit R1: G21.
[80] Exhibit R1: G24.
Summarising Mr West’s arguments:
·Mr Hanger first travelled to Australia in 1988 at 4 years old. He regularly travelled to and from Australia for short periods up until 6 April 2002, when he returned to live in New Zealand until December 2002.[81] Upon his return he did not leave Australia until his voluntary removal. On that basis the Respondent Minister accepts that Mr Hanger was ordinarily resident in Australia during and since his formative years.
·In terms of Mr Hanger’s immediate family members, he has one adult child, his mother and two sisters who live in Australia.[82] There is no evidence from any of them as to any specific hardship they are facing.
·In terms of extended family and social links, Mr Hanger lists five aunts and uncles, nine nieces/nephews and 20 or 30 cousins and two grandparents.[83] As above with his immediate family members, there is no evidence as to the specific hardships these people face as a result of Mr Hanger’s removal aside from a statement from Mr Hanger’s mother and sister in law who speak of the negative impact on them of not being able to see their nephews and sister as a result of Mr Hanger’s removal.
·Mr Hanger’s partner, Ms Price, is not located in Australia and is living with him in New Zealand. In those circumstances, the Respondent Minister contends that she does not fall within the auspice of this consideration. With that said, Mr Hanger has made representations with respect to the hardship Ms Price is facing while living in New Zealand, which should properly be considered by the Tribunal and which is addressed in an additional consideration.
·While the Respondent Minister accepts this consideration weighs in favour of revocation of the delegate’s decision, the Respondent Minister contends that it does not outweigh the countervailing considerations.
[81] Exhibit R1: G6, page 39; and Exhibit R3: Tender Bundle 4, page 239.
[82] Exhibit R1: G19, page 98.
[83] Exhibit R1: G19, page 98.
Taking each sub-paragraph in paragraph 8.3 in turn to categorise the evidence before the Tribunal:
Paragraph 8.3 (1)
From the evidence and testimony before the Tribunal, Mr Hanger's immediate family in Australia consists of one adult child, his mother and two sisters.[84] There is no evidence from any of them as to any specific hardship they would face if Mr Hanger were not allowed to return to Australia.
[84] Exhibit R1: G19, page 98.
This paragraph carries neutral weight.
Paragraph 8.3 (2)
Mr Hanger’s three minor children with Ms Price are either Australian citizens or have a right to reside in Australia indefinitely. They currently reside with Mr Hanger and Ms Price.
It should be acknowledged that two of Ms Price’s minor children by a previous relationship also reside with Mr Hanger and Mr Price and that they can be characterised as his step-children.
Ms Price’s eldest minor child, FT, resides in Australia with her maternal aunt and her husband. FT’s testimony shows a strong relationship with Mr Hanger.
Apart from FT – and acknowledging the strength of the ties between all the minor children and Mr Hanger – all other relevant minor children are with Mr Hanger and Ms Price in New Zealand. The impact of any decision the Tribunal may make is consequently tempered by this fact.
This paragraph carries some weight in favour of setting aside the delegate’s decision.
Paragraph 8.3 (3)
Mr Hanger lists five aunts and uncles, nine nieces/nephews and 20 or 30 cousins and two grandparents.[85] There is no evidence as to the specific hardships these people face as a result of Mr Hanger’s removal aside from statements from Mrs Wendy Price and Ms Nikkita Jackson who describe the negative impact they feel of not being able to see their nephews, daughter and sister as a result of Mr Hanger’s removal.
[85] Exhibit R1: G189, page 98.
Ms Price’s family provides financial support to Ms Price and Mr Hanger at a financial cost to themselves:[86]
‘Tribunal: Do you provide any support to Mr Hanger and Ms Price?
Ms Jackson: We do. Absolutely. We provide as much support, again, as we possibly can. We have come over to New Zealand a couple of times, but, again, airfares are incredibly expensive. I have a full-time job, but it’s just not that easy. I know it is close, but it is very expensive. But we do. We offer financial support if and when they need it, and then whatever other support we can. We’re always here. We are always a phone call away. As I said, the time difference is difficult, but we do offer as much support as we possibly can being in another country.
Tribunal: In terms of financial support, how much and when do you do this?
Ms Jackson: Well, just mainly with the boys. I am very – I am – I am a great aunty. I am very supportive. So I just like – I like to buy them things. I like to help out with new shoes, things like that. So that kind of financial support. And if ever, you know, the kids are bored and they want to go on an outing, we’ll talk to them and, you know, I will try and support in that way because I know that it is really difficult for Shai and Russell over there. So I just help out in that regard. But if ever they needed anything, if they needed food, if they needed anything at all, then I am happy to send what I need; if they need milk and bread, things like that. I am basically here if there’s any support – and have been here if there’s any support that they need. But, yes, just things like that. You know, we send packages when we can, but it’s just – yes, it always varies, and it’s …
Ms Price: It’s not the same.
Ms Jackson: It’s not the same as being together.
Tribunal: Yes?
Ms Jackson: The support that we can give from a different country is just nothing like we would be able to give if they were here. It’s just very different. I mean, even offering money, it doesn’t – it’s not really – mentally, it does nothing for them mentally. You know, it helps them have what they need when they need it, but mentally, it’s still not enough. There’s nothing like having your family – physically having your family there and being there for my nephews as well for school things, all those sorts of things, things like that. But, yes, we are just very supportive. So we do try as much as we can, but, obviously, that’s limited.’
[86] Transcript, page 38, lines 7–43.
Paragraph 8.5(3) provides that the Australian community's expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. The Direction further explains at Paragraph 8.5(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."
Sub-paragraph 5.2(4) uses the term ‘limited stay visa’ which is not defined in the Act. The Act does however create a taxonomy of visas. Relevantly for present purposes, Section 30 of the Act contemplates both (1) ‘permanent’ visas, which permit a right to remain, ‘indefinitely’; and (2) ‘temporary visas’, which provide a conditional right to remain. ‘Limited stay’, as used in the Direction, seems to be a reference to non-permanent or ‘temporary’ visas.
Tribunal’s consideration
Summarising Mr West’s contentions:
·Observing the norm stipulated in paragraph 8.5(1), and in accordance with the guidance provided by Principles 5.2(2), (3), (4) and (5) of Direction 99, the Australian community would expect that Mr Hanger should not continue to hold a visa on account of his sustained offending, despite the length of time he has resided in Australia.
·Overall, the Respondent Minister contends that this primary consideration weighs heavily against revocation, even if the Tribunal concludes that Mr Hanger does not pose a “measurable risk of causing physical harm to the Australian community”.
Mr Hanger held a Class TY Subclass 444 Special Category (Temporary) visa. This visa allows the visa holder to remain in Australia while the holder is a New Zealand citizen, like Mr Hanger. Consequently this visa should not be characterised as a limited stay visa.[108]
[108] Migration Regulations 1994 (Cth), reg 444.511.
This implies that sub-paragraph 5.2(4)’s low tolerance threshold does not apply.
Mr Hanger has lived in Australia since he was four and began offending 16 years later. Mr Hanger has made some contributions to the Australian community as a worker.
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. Mr Hanger has lived in the Australian community for most of his life. Consequently he gets the benefit of a higher level of tolerance.The Tribunal found Mr Hanger’s offending conduct to be serious. However, the nature of his offending does not enliven paragraph 8.5 (2).
The Tribunal also observes the requirements of paragraph 8.5 (3) of the Direction which dictate that the expectations of the Australian community apply regardless of whether a non-citizen poses a measurable risk of causing physical harm to the Australian community. The Tribunal has found above that Mr Hanger poses a significant and material risk of re-offending.
The Tribunal is satisfied that Mr Hanger has breached the Australian community’s expectations by his criminal offending which involved serious breaches of Australian laws. Therefore, the Australian community, ‘as a norm’ expects the Australian Government not to allow him to remain in Australia.
Conclusion: Primary Consideration 5: Expectations of the Australian community
This consideration carries significant and material weight in favour of affirming the delegate’s decision.
OTHER CONSIDERATIONS
The Tribunal now considers each of the four sub-paragraphs (a), (b), (c) and (d) set out in Other Considerations listed in paragraph 9 of the Direction.
Other Consideration (a): Legal consequences of the decision
Paragraph 9.1 of the Direction directs a decision-maker to consider the following:
1Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.
2A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
3International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
9.1.1 Non-citizens covered by a protection finding
1Where a protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non-citizen.
2Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.
3Decision-makers should also be mindful that where the refusal, cancellation or non-revocation decision concerns a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations.
9.1.2 Non-citizens not covered by a protection finding
1Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
2However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
3Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or non-revocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the noncitizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.
Summarising Mr West’s contentions and submissions on this consideration:[109]
·Mr Hanger does not raise any non-refoulement issues, he does however, raise a consideration which goes to the legal consequences of the decision. He contends that the outcome of the cancellation of his visa not being revoked is that he would not hold a visa that would allow him to return to return to Australia. It is his inability to return to Australia which results in his partner and his children remaining in New Zealand, which Mr Hanger claims is causing them harm.[110]
·The Respondent Minister contends that the Tribunal is not required to take those submissions into account repetitiously.[111] The issue of the detrimental effect to Mr Hanger’s partner and children because of Mr Hanger not holding a visa will be dealt with more appropriately in another aspect of the Tribunal’s reasons, as is the effect of any separation between Mr Hanger and his family currently residing in Australia, such that they will not be required to be considered here,[112] and that this consideration should properly weigh neutrally.
·At most, to the extent that this consideration is relevant because the relevant legal consequences of the decision are not already covered by the other considerations, the Respondent Minister contends that only minimal weight can be placed on this consideration.
[109] Exhibit R2: Respondent ‘s SFIC, [53] – [54].
[110] Exhibit R1: G19, pages 104-105.
[111] Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 7 646.
[112] See for example Mizen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] AATA 311.
Tribunal’s consideration
The Tribunal understands that no protection finding (as that term is defined in s 197C of the Act) has been made in respect of Mr Hanger.
The Tribunal considers that this Other Consideration (a) carries a neutral weight.
Tribunal finding: Other Consideration (a): Legal consequences of the decision
The Tribunal finds that this Other Consideration (a) carries a neutral weight.
Other Consideration (b): Extent of impediments if removed
Clause 9.2(1) of the Direction provides:
1Decision-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.
The Applicant’s and Respondent’s contentions
Summarising Mr Hanger’s arguments:
·He would face hardship and health risks if returned to New Zealand. He also asserts that he lacks a support network in New Zealand and that he is estranged from his father who resides there.
·He has no family or support in New Zealand as their family are all in Australia. Mr Hanger considers New Zealand to be a foreign country to himself and his family and finds it difficult to adjust.
·He states that ‘some scary things’ have occurred to his family in New Zealand and he still considers New Zealand to be a foreign place.[113]
[113] Exhibit R1: G19.
Summarising Mr West’s contentions on this consideration:
·Mr Hanger was voluntarily removed from Australia in October 2019. By the time this matter is heard, he would have been living in New Zealand for some four years. As he is currently residing in New Zealand, and this consideration is necessarily forward looking and directed to a situation if removed, the Respondent Minister contends that this consideration is not relevant.[114] That said, the Tribunal will still need to deal with Mr Hanger’s claimed hardship in reintegrating into New Zealand, given he has clearly articulated his concerns with respect to a lack of family support and feeling like New Zealand is a ‘foreign place’.[115]
·With respect to that hardship, and any hardships associated with Mr Hanger remaining in New Zealand generally, the Respondent Minister contends as follows:
oHe is aged in his late 30s and has not declared any health conditions.[116]
oHe has a strong work history as a concreter.[117] Even if he has not been supporting his family by those means, he has ostensibly been able to financially support himself and his family for the period he has lived in New Zealand.
oHis father resides in New Zealand, who is a potential source of support in reintegrating into New Zealand, despite their previously estrangement.[118]
oFurther, as a New Zealand citizen, he has the same access to social, medical and economic support as other citizens. More particularly, in circumstances where the returning country is New Zealand, the cultural, linguistic and political circumstances are matters of common knowledge. As a broad proposition, in the absence of any contrary evidence, the Tribunal is entitled to take into account that Mr Hanger would have access to government benefits similar to those available to him in Australia.[119] He has also had the support of his partner and their children who have returned back with him.
·The Respondent Minister therefore contends that this consideration (however so described), carries minimal weight, and does not outweigh the countervailing considerations weighing in favour of revocation.
[114] McCombie at [173]; Mamatta and Minister for Immigration, Citizenship and Multicultural Affairs 9 [2023] AATA 133 (although the Tribunal in both cases dealt with the direction out of an abundance of caution).
[115] Exhibit R1: G18, page 88.
[116] Exhibit R1: G19, page 101.
[117] Exhibit R1: G22, page 115.
[118] Exhibit R1: G18, page 88.
[119] Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296.
Tribunal’s consideration
This aspect of the Direction requires the Tribunal to assess and consider the extent of any impediments that Mr Hanger, if removed from Australia to New Zealand, will face in establishing himself and maintaining basic living standards taking the specific factors below into account.
Sub-paragraph 9.2(1)(a) – the non-citizen’s age and health
Mr Hanger is 39 years old. He is able-bodied. He asserts that he would face health risks in New Zealand but has not provided any supporting evidence.
The Tribunal concludes, after looking holistically at the available evidence of Mr Hanger’s general state of health[120] and synthesising this evidence, that his age and health are sufficient to allow him to achieve and maintain basic living standards in New Zealand. Mr Hanger will, as a New Zealand citizen, have access to those publicly available health services to the same extent as is generally available to other citizens of that country. His age and physical health do not impede his resettlement in New Zealand. His capacity to source and obtain treatment in New Zealand compared to Australia for his claimed health risks represents, at best, only a slight impediment.
[120] Exhibit R1: G19, page 101.
The Tribunal finds that this paragraph carries a neutral weight.
Sub-paragraph 9.2(1)(b) – any substantial language or cultural barriers
The Tribunal considers that Mr Hanger, based on his oral testimony[121] and the fact that he was born in New Zealand, would face few, if any linguistic difficulties in New Zealand.
[121] Transcript, page 23, lines 18-19.
The Tribunal also considers that Mr Hanger is unlikely to face significant cultural issues for the same reason.
The Tribunal (differently constituted) has previously noted: ‘New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the applicant if he returns to New Zealand.’ [122] The Tribunal finds no impediment in relation to this factor.
[122] Tera Euna v Minister for Immigration and Border Protection [2016] AATA 301, at [101].
The Tribunal finds that this paragraph carries a neutral weight.
Sub-paragraph 9.2(1)(c) - any social, medical and/or economic support available to them in that country
The Tribunal considers that Mr Hanger can access New Zealand’s medical system.
The Tribunal accepts, based on the testimony of Mr Hanger and Ms Price, that Mr Hanger lacks a family support network in New Zealand.
There is no evidence that he would be denied the same social, medical or economic support available to other New Zealand citizens.
The Tribunal accepts that Mr Hanger may find it daunting and upsetting being in New Zealand, however he has the support of Ms Price and their children.
The Tribunal finds that this paragraph carries slight weight in favour of setting aside the delegate’s decision.
Tribunal’s analysis and consideration
The Tribunal has considered above the extent of any impediments that Mr Hanger, if removed from Australia to New Zealand, will face in establishing himself and maintaining basic living standards, considering the specific factors set out in paragraph 9.2(1).
Tribunal finding: Other Consideration (b): Extent of impediments if removed
Having regard to the analysis and its consideration referrable to each of the three sub-paragraph components of this other consideration (b) and its findings in relation to each of these sub-paragraphs, the Tribunal considers that Mr Hanger faces a level of emotional, practical, financial and medical hardship in New Zealand.
The Tribunal finds that this Other Consideration (b) carries slight weight in favour of setting aside the delegate’s decision.
Other Consideration (c): Impact on victims
There is no evidence or testimony before the Tribunal about this consideration.
Based on the abovementioned statements, the Tribunal finds that this Other Consideration (c) carries neutral weight.
Other consideration (d): Impact on Australian business interests if Mr Hanger cannot remain here
There is no evidence before the Tribunal that the Mr Hanger’s removal from Australia would significantly impact Australian business interests or compromise the delivery of a major project or an important service in Australia.
The Tribunal finds that Other Consideration (d) carries neutral weight.
Findings: Other Considerations
The Tribunal now summarises the respective weights it has allocated to each of the Other Considerations (specified in the Direction) relevant to the present matter:
Other Consideration (a): Legal consequences of the decision:
·This consideration carries a neutral weight.
Other Consideration (b): Extent of impediments if removed:
·This consideration carries slight weight in favour of setting aside the delegate’s decision.
Other Consideration (c): Impact on victims:
·This consideration carries neutral weight.
Other Consideration (d): Impacts on Australian business interests:
·This consideration carries neutral weight.
ADDITIONAL CONSIDERATIONS
The Direction does not limit the other considerations to those listed in the Direction (paragraph 9(1) of the Direction).[123]
[123] Per Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471.
The delegate,[124] Mr Hanger, Ms Price and Mr West all raised similar issues that the Tribunal considers to constitute an additional consideration.
[124] Exhibit R1: G3, pages 27-28.
Summarising Mr Hanger’s arguments on this consideration:
·Mr Hanger and Ms Price and their children relocated to New Zealand in 2019. Mr Hanger and Ms Price have since had STK, born in New Zealand.
·Mr Hanger states that Ms Price is suffering in New Zealand and all of their children are being punished as well because of the relocation.
·Mr Hanger states that COVID and financial restrictions made it difficult for Ms Price and their children to return to Australia to see their family. Mr Hanger states that his family do not deserve to suffer like this, and he wants his children to be with their grandparents in Australia. He considers New Zealand to be an unhealthy environment, especially for Ms Price in terms of her mental health.
·Mr Hanger states his children have the right to grow up in Australia. [125]
·An affirmation of the delegate’s decision would prevent the family from resuming a life in Australia as Mr Hanger would be prevented from returning due to his immigration status. Families who are split across international borders face unique challenges.
[125] Exhibit R1: G19.
Summarising Mr West’s arguments on this additional consideration:
·In his personal circumstances form Mr Hanger claims that Ms Price ‘hates it’ in New Zealand, that she is only there so they can be together, and that she is struggling without her family’s support.[126]
·Mr Hanger claims that, due to financial circumstances and the coronavirus pandemic, she has been unable to return home.[127] Mr Hanger has similarly indicated that his children are suffering living in New Zealand and have a right to grow up in Australia.[128]
·In this respect the Respondent Minister contends:
oThe impediments to travel because of the Coronavirus pandemic have subsided. Border controls are no longer in place and do not present any impediment to the Mr Hanger’s partner and children travelling to Australia.
oMr Hanger and his family have resided in New Zealand for some four years. It is not the case that this has been a short term, temporary, living arrangement, rather Mr Hanger and his family have established a life in New Zealand.
oMr Hanger’s two youngest children were born in New Zealand, with his third youngest child being around a year old when relocating to New Zealand. They have spent all (or practically all) of their lives in New Zealand.
·While the Respondent Minister accepts this consideration weighs in favour of revocation, it does not, of itself, or when combined with the other consideration weighing in favour of revocation, outweigh those considerations which weigh in favour of non-revocation.
[126] Exhibit R1: G19, pages 93-95.
[127] Exhibit R1: G19, page 105.
[128] Exhibit R1: G19, page 95.
Assessing this additional consideration, the Tribunal is conscious of Ms Price’s mental health[129] - based on its observations of her during the hearing and the available evidence – however she is residing in NZ with her partner, Mr Hanger, and their children, who are all capable of providing Ms price close familial support.
[129] Exhibit R1: G23.
There is nothing preventing Ms Price returning to Australia with her children except for the fact that it would create a physical separation between her and her children here and Mr Hanger in New Zealand.
The Tribunal considers and consequently finds that this additional consideration weighs moderately in favour of setting the delegate’s decision aside.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, Mr Hanger does not pass the character test.
In determining whether there is ‘another reason’ to revoke the cancellation decision, the Tribunal has applied the Direction to this matter’s specific circumstances.
The Tribunal find as follows:
Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct:
·This consideration weighs very heavily and substantively in favour of affirming the delegate’s decision.
Primary Consideration 2: Whether the conduct engaged in constituted family violence:
·This consideration has a neutral weight.
Primary Consideration 3: The strength, nature and duration of ties to Australia:
·This consideration carries moderate weight towards setting aside the delegate’s decision.
Primary Consideration 4: Best interests of minor children in Australia affected by the decision:
·This consideration carries a moderate weight in favour setting aside the delegate’s decision.
Primary Consideration 5: Expectations of the Australian Community:
·This consideration carries significant and material weight in favour of affirming the delegate’s decision.
The Tribunal has set out the weight attributable to the other considerations above.
In regard to the additional consideration, the Tribunal considers and consequently finds that this weighs moderately in favour of setting the delegate’s decision aside.
The Tribunal has assessed and considered all the weights it has identified, applying the process outlined in Demir v Minister for Immigration, Citizenship and Multicultural Affairs at [21]:[130]
‘The metaphor of “weighing” relevant considerations should not be taken too literally. The exercise is not mathematical and cannot depend on the simple aggregation of factors on each side of a ledger. The conclusion as to whether there is “another reason” for the purposes of s 501CA(4)(b)(ii) necessarily involves persuasion of a human decision-maker, whose thought processes cannot be reflected in lines of code, as to what is the right result in the circumstances. That persuasion flows from the decision-maker’s personal understanding as to the significance of each of the factors they are required or permitted to take into account, in the light of all the material they have considered. So much is consistent with the decision-maker’s duty to “call his own attention to the matters which he is bound to consider” (Peko-Wallsend at 39 (Mason J), quoting Wednesbury at 229 (Lord Greene MR)) and to give “proper, genuine and realistic consideration to the merits of the case” (Khan v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Gummow J, 11 December 1987; noted [1987] FCA 457; (1987) 14 ALD 291, 292). Correspondingly, the statutory specification of mandatory considerations requires those considerations to be taken into account, but not necessarily to be given any particular degree of weight: Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1758; 176 FCR 153 at [110] (Rares J) (varied on appeal (Australian Competition and Consumer Commission v Telstra Corporation Ltd [2009] FCAFC 68; 176 FCR 203), but not on this point).’
[130] Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870.
A comprehensive, holistic and integrated view of the primary considerations, the other considerations and the additional consideration leads this Tribunal to a finding that it is not satisfied of there being another reason to revoke the cancellation of Mr Hanger’s Visa. In particular, while the Tribunal can see where the risk of Mr Hanger committing criminal offences can and has been addressed by risk management factors, the same cannot be said of his driving offences. The risk that he will resume his driving offending if he returns to Australia is significant with potentially catastrophic consequences for other road users and the Australian community.[131]
[131] See Bartlett v Minister for Immigration and Border Protection (Migration) [2017] AATA 1561 at [42] – [45].
Accordingly, the Tribunal makes a finding of affirming the delegate’s decision to not revoke the cancellation of Mr Hanger’s Visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 13 July 2023 to not revoke the cancellation of Mr Hanger’s visa.
I certify that the preceding two hundred and twenty seven paragraphs (227) paragraphs are a true copy of the reasons for the decision herein of Member D. Cosgrave
...........[SGD]............
Associate
Dated: 15 May 2024
Dates of hearing: 13th and 14th February 2024 Representation for the Applicant: Mr Russell Hanger, self-represented with his partner, Ms Shaylee Price Solicitor for the Respondent: Mr Chris West of Sparke Helmore Lawyers ANNEXURE A – EXHIBIT REGISTER
EXHIBIT
DESCRIPTION OF EVIDENCE
DATE OF DOCUMENT
DATE RECEIVED
RESPONDENT’S SUBMISSIONS
R1
Section 501G documents
Various
1 August 2023
R2
Statement of Facts, Issues and Contentions (‘SFIC’)
20 October 2023
20 October 2023
R3
Tender bundle
Various
20 October 2023
APPLICANT’S SUBMISSIONS
A1
Statement of Facts, Issues and Contentions
Undated
3 November 2023
A2
Birth Certificate
4 February 2022
14 January 2024
A3
Applicant’s NZ Driver’s license
Undated
14 January 2024
A4
Statement from Wendy Patricia Price
25 September 2023
25 September 2023
A5
Statement from Nikkita Jackson
25 September 2023
25 September 2023
A6
Statement from FT
15 January 2024
15 January 2024
A7
Handwritten statement from Mr Hanger
15 January 2024
15 January 2024
A7.1
Handwritten statement from Mr Hanger
15 January 2024
15 January 2024
A8
Christmas pics
Undated
15 January 2024
0
45
0