Harris and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2021] AATA 753

Harris and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 753 (1 April 2021)

Division:GENERAL DIVISION

File Number:          2021/0298

Re:Ace Harris

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member S Burford

Date:1 April 2021

Place:Perth

The decision of the delegate of the Respondent, dated 11 January 2020, not to revoke the cancellation of the Applicant’s Class TY Subclass 444 (temporary) visa is affirmed.

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

Member S Burford

CATCHWORDS

MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – substantial criminal record – drug offences, property offences, firearms offences, driving offences – Direction No 79 – primary and other considerations – protection of the Australian community – nature and seriousness of criminal offending – risk to the Australian community – best interests of minor children – expectations of the Australian community –strength, nature and duration of ties to Australia – Applicant is a 34-year-old man who arrived in Australia as a three-year-old child – extent of impediments if returned to New Zealand – impact of COVID-19 pandemic – reviewable decision affirmed

LEGISLATION

Migration Act 1958 (Cth) – ss 36(2)(a), 36(2)(aa), 198, 499, 499(2A), 500(1)(ba), 500(6L), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501G(1)

Direction No 79 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA – paras 6.1, 6.2, 6.3, 6.3(2), 6.3(5), 6.3(7), 13(1), 13.1, 13.1(1), 13.1(2)(a), 13.1(2)(b), 13.1.1(1), 13.1.1(1)(a), 13.1.1(1)(b), 13.1.1(1)(c), 13.1.1(1)(f), 13.1.1(1)(g), 13.1.1(1)(h), 13.1.1(1)(i), 13.1(2), 13.1.2(1), 13.1.2(1)(a), 13.1.2(1)(b), 13.2, 13.2(3), 13.2(4)(a), 13.2(4)(b), 13.2(4)(c), 13.2(4)(d), 13.2(4)(e), 13.2(4)(f), 13.2(4)(g), 13.2(4)(h), 13.3, 13.3(1), 14.1, 14.1(1), 14.2, 14.2(1), 14.2(1)(a), 14.2(1)(a)(i), 14.3, 14.3(1), 14.4, 14.4(1), 14.5, 14.5(1), part C.

CASES

Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117

AXT19 v Minister for Home Affairs [2020] FCAFC 32
BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CZCV and Minister for Home Affairs [2019] AATA 91
DOB18 v Minister for Home Affairs (2019) 269 FCR 636
DQM18 v Minister for Home Affairs [2020] FCAFC 110
EVK18 v Minister for Home Affairs [2020] FCAFC 49
FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294
FYBR v Minister for Home Affairs (2019) 272 FCR 454
GBV18 v Minister for Home Affairs [2020] FCAFC 17
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
Lau and Minister for Immigration and Border Protection [2017] AATA 138
Love v Commonwealth (2020) 94 ALJR 198
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Minister for Home Affairs v Omar (2019) 272 FCR 589
Minister for Home Affairs v Stowers [2020] FCA 407
Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166
Morris v Minister for Immigration and Border Protection [2018] AATA 3374
Nigro v Secretary to the Department of Justice (2013) 41 VR 359
Omar v Minister for Home Affairs [2019] FCA 279
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
RQRP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 266
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203
Wang and Minister for Immigration and Border Protection [2014] AATA 89
Webb v Minister for Home Affairs [2020] FCA 831
Yu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1002

SECONDARY MATERIALS

Department of the Prime Minister and Cabinet, Final Report of the National Ice Task Force (2015)

REASONS FOR DECISION

Member S Burford

1 April 2021

INTRODUCTION

1.       

This is an application for review of a decision made by a delegate of the Respondent on

11 January 2021 under s 501CA(4) of the Migration Act 1958 (Cth) (the MigrationAct) not to revoke the decision made under s 501(3A) of the Migration Act to cancel the Applicant’s Class TY Subclass 444 (temporary) visa (the Visa). This is the Reviewable Decision that is currently before the Tribunal.

2.       The Applicant is a 34-year-old citizen of New Zealand. He arrived in Australia with his mother and two sisters from New Zealand in November 1989, when he was almost three years old.[1] His Visa was cancelled following his convictions on 15 August 2019 in the Perth District Court of Western Australia for ‘Aggravated Burglary and commit’ and ‘Possession of a Prohibited Drug with Intent to Sell or Supply (Methylamphetamine)’, for which he was sentenced to terms of imprisonment of 18 months and 12 months respectively (to be served cumulatively).[2]

[1] R2, G26.

[2] R3, pages 271–272.

3.       The Applicant is currently incarcerated in Western Australia and will be eligible for parole in 2023.

4.       The issues for the Tribunal are whether it is satisfied that the Applicant passes the character test and, if not, whether there is another reason why the cancellation of the Visa should be revoked.

5.       For the reasons below, the Tribunal has decided that the correct and preferable decision is to affirm the Reviewable Decision.

BACKGROUND

6.       As noted above, the Applicant arrived in Australia with his mother and two sisters from New Zealand in November 1989.[3] They joined his father who had relocated to Australia several months earlier. Two more sisters were born following the family’s arrival in Australia. The Applicant is now 34 years of age.

[3] R2, G26.

7.       The Applicant has a large extended family in Australia, including citizens and permanent residents.[4]

[4] R2, G17, pages 75, 77, 78, 80.

8.       In late 2007, the Applicant commenced a relationship with an Australian citizen, Ms Charlene Curtis. They had a child together in 2008 (Ms A). Ms Curtis also has an adult daughter from a previous relationship to whom the Applicant is a stepfather and who now has an infant child. The Applicant became her stepfather when she was around 10 years old. The Applicant’s stepdaughter’s birth father was an Indigenous Australia and is now deceased. The Applicant and Ms Curtis are permanently separated but have remained in close contact.

9.       The Applicant entered into another relationship with another Australian citizen, Ms Biagioni, in around 2014.[5] At the time of the revocation request he remained in that relationship.[6] However, he testified before the Tribunal that the relationship ended in early 2020.[7]

[5] R2, G17, page 74.

[6] R2, G17, page 74.

[7] Transcript, page 37 [5]–[25].

10.     The Applicant committed one offence as a juvenile in 2003. He commenced offending as an adult in 2005 and has been convicted of 25 offences as an adult. Details of the Applicant’s offences are provided at Annexure A.

11.     As noted above, on 15 August 2019 the Applicant was convicted in the Perth District Court of Western Australia of ‘Aggravated Burglary and commit and Possession of a Prohibited Drug with Intent to Sell or Supply (Methylamphetamine)’. He was sentenced to a term of imprisonment of 12 months for the possession offence and 18 months for the aggravated burglary offence to be served cumulatively from 18 November 2018.[8]

[8] R3, pages 271–272.

12. On 26 September 2019 the Applicant’s Visa was mandatorily cancelled by a delegate of the Respondent under s 501(3A) of the Migration Act (the Cancellation Decision).[9] The Applicant was advised that he could make representations to seek revocation of the Cancellation Decision.[10]

[9] R2, G27.

[10] R2, G27, pages 157-160.

13.     

The Applicant requested revocation of the Cancellation Decision on 23 October 2019.[11] He made representations in support of his revocation request on the same date.[12] The Applicant submitted further documents in support of the revocation request on

24 October 2019.[13]

[11] R2, G4.

[12] R2, G17.

[13] R2, G6.

14.     On 19 August 2019, while incarcerated for the aggravated burglary and possession offences, the Applicant was convicted in the Perth Magistrates Court of ‘Fail to Obey Order Given by an Officer’, ‘Possessed drug paraphernalia in or on which there was a prohibited drug or plant’, ‘Possession of stolen or unlawfully obtained property’ and ‘No authority to drive (fines suspended)’ and was sentenced to pay fines. Those offences were committed on 19 October 2018.

15.     On 17 December 2019, while still incarcerated, the Applicant was convicted in the Perth Magistrates Court of ‘Criminal Damage or Destruction of Property’ and was sentenced to three months’ imprisonment to be served concurrently from 17 December 2019. This offence related to the events of 18 November 2018 when the aggravated burglary offence was committed.

16.     

On 24 July 2020, again while still incarcerated, the Applicant was convicted in the Perth District Court of Western Australia of ‘Sold or supplied, or offered to sell or supply, a trafficable quantity of methylamphetamine’ in relation to an offence that occurred on

6 October 2018. The Applicant was sentenced to four years’ imprisonment and was declared to be a drug trafficker for this offence. The sentence was to be served cumulatively from 24 July 2020.

17.     On 12 November 2020, the Applicant was invited by the delegate to comment on additional information relevant to the revocation request.[14] The Applicant responded to that information and provided further information in support of his revocation request on 18 November 2019, 6 January 2020 and 14 February 2020.[15]

[14] R2, G10.

[15] R2, G7-G9.

18. On 11 January 2021, the delegate decided not to revoke the Cancellation Decision (the Reviewable Decision).[16] The Applicant was notified of the Reviewable Decision by letter on the same date, delivered to him by hand at Wooroloo Prison Farm. There is no evidence before the Tribunal that the Applicant signed for receipt of the decision, however he indicated in his application for review that prison staff delivered the decision to him by hand.[17] No issue regarding the notification of the decision was raised before the Tribunal and accordingly the Tribunal finds that the Applicant was notified of the decision by hand on 11 January 2021.

[16] R2, G12.

[17] R2, G2(a), page 12.

19.     On 19 January 2021, the Applicant lodged an application for review of the Reviewable Decision with the Tribunal.[18] The Tribunal notes that the Applicant used the incorrect form (using a form for the Migration and Refugee Division rather than for the General Division) to lodge his review, however, as his application was made in writing and correctly identified the decision in relation to which he was seeking review, the Tribunal took the application to be validly made. 

[18] R2, G2.

20. The application for review was made in accordance with s 500(1)(ba) of the Migration Act, which allows applications to be made to the Tribunal for review of decisions of a delegate of the Minister not to revoke a decision to cancel a visa under s 501CA(4) of the Migration Act. The Tribunal is satisfied that the application was lodged within time and that the Tribunal has jurisdiction to review the decision.

21. Section 500(6L) of the Migration Act effectively provides that the 84-day period within which a decision on the review must be made commences from the date the Applicant is notified of the Reviewable Decision in accordance with s 501G(1) of the Migration Act. Accordingly, the Tribunal’s decision must be made no later than 5 April 2021. However, as 2–5 April 2021 are either public holidays or weekend days, the Tribunal took the last day on which a decision could be made to be 1 April 2021. The parties agreed with this assessment.

ISSUES

22.     The issues for determination by the Tribunal are:

(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act (s 501CA(4)(b)(i)); and

(b)if not, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii)).

THE HEARING

23.     The hearing was held on 19 March 2021 in Perth. The Applicant was represented by Ms Eve Cassandra Watts of Inclusive Migration Australia. The Respondent was represented by Mr Ashley Burgess of Sparke Helmore Lawyers. Mr Burgess appeared in person. On the morning of the hearing Ms Watts advised the Tribunal that she was unable to appear in person due to an ongoing medical issue. She requested to appear via electronic communications. Leave was granted and the hearing commenced however there were initially issues with the clarity of Ms Watts’ video and audio connection and the hearing was adjourned briefly to enable these issues to be resolved. The hearing resumed with the Applicant’s representative appearing by audio only. By the time the Tribunal adjourned for lunch, the Applicant’s representative had resolved the connection issue at her end (an issue with the camera being obscured) and the remainder of the hearing proceeded with the Applicant’s representative appearing by videoconference.

24.     The Applicant appeared by videoconference from prison. The Tribunal notes that as the Applicant was in prison at the time of the hearing, the Tribunal was unable to conduct the hearing at the Tribunal’s Perth Registry. The Tribunal was also unable to secure a hearing room at the Commonwealth Law Courts Building in Perth, so arrangements were made for the Applicant to appear via videoconference from the prison. 

25.     On the day of the hearing there were no issues with the video connection to the Applicant.  However, the hard copy of materials which had been sent to the Applicant for use during the hearing were unable to be located by prison staff until well into the hearing. In the absence of these material the Applicant was shown documents via the video conferencing facility. No issues were experienced in showing the Applicant documents in this way and the Applicant was successfully taken to documents remotely as required during the hearing.

26.     At the hearing, the Applicant made submissions via his representative, gave evidence and was cross-examined. The Applicant also called the following witnesses to give evidence in support of his application:

·Ms Charlene Curtis, the Applicant’s former partner;[19]

·Ms Shanaye Curtis, the Applicant’s step-daughter;[20]

·Mr Stanley Headland, the Applicant’s brother-in-law;[21]

·Mr Benjamin Paul Kake, the Applicant’s father.[22]

[19] A3; transcript, pages 48–58.

[20] A9; transcript, pages 59–61.

[21] A11; A13; transcript, pages 62–66.

[22] A5; transcript, pages 66–71.

Each of these witnesses appeared via telephone and gave oral evidence. Ms Charlene Curtis was cross-examined. The Tribunal also asked questions of each of the witnesses.

27.     The list of documents admitted into evidence is at Annexure B.

28.     

Additional statements and letters were submitted to the delegate prior to the Reviewable Decision being made. This material was admitted into evidence as part of the

G Documents[23] and the Tribunal has also had regard to these statements.

[23] R2, G20, G21, G22.

LEGISLATIVE FRAMEWORK

29. The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision.

30.     These powers generally involve consideration of whether a person passes the character test, and if they do not, what decision should be made regarding their visa or visa application.

31. The character test as set out in s 501(6) of the Migration Act essentially deems that a person does not pass the test if the circumstances listed in that section apply. Section 501(6)(a) of the Migration Act relevantly provides that:

(6)For the purposes of this section, a person does not pass the character test if:

(a)

the person has a substantial criminal record (as defined by

subsection (7)); or …

(Original emphasis.)

32.     A ‘substantial criminal record’ is relevantly defined by s 501(7) of the Migration Act as follows:

(7)For the purposes of the character test, a person has a substantial criminal record if:

…

(c)

the person has been sentenced to a term of imprisonment of

12 months or more; or …

(Original emphasis.)

33.     

Under s 501(3A) of the Migration Act, the Minister must cancel the visa of certain incarcerated persons who do not pass the character test, including where the person has a substantial criminal record as a result of being sentenced to a term of imprisonment of more than 12 months. The person must be serving a ‘sentence of imprisonment’, on a

full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

34. If a visa is cancelled under s 501(3A), the Minister must give the person a written notice inviting them to make representations about revocation of the original decision. If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the original decision if satisfied the person passes the character test or that there is ‘another reason’ why the original decision should be revoked. The revocation decision under s 501CA(4)(b)(i) requires the decision-maker to first decide whether the person passes the character test and, only if satisfied the person does not, proceed to consider under s 501CA(4)(b)(ii) if there is ‘another reason’ why the cancellation should be revoked.[24]

[24] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].

35. Section 501CA of the Migration Act provides:

(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:

(a)would be the reason, or a part of the reason, for making the original decision; and

(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3)As soon as practicable after making the original decision, the Minister must:

(a)give the person, in the way that the Minister considers appropriate in the circumstances:

(i)     a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4)The Minister may revoke the original decision if:

(a)the person makes representations in accordance with the invitation; and

(b)the Minister is satisfied:

(i)     that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

(Original emphasis.)

DIRECTION NO 79

36. The Minister may give written directions to a person or body exercising powers under the Migration Act if those directions are about the performance of those functions or the exercise of those powers.[25] Further, s 499(2A) of the Migration Act provides that a person or body must comply with such a direction. On 20 December 2018, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No 79 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction No 79) under s 499 of the Migration Act, for people or bodies exercising powers under ss 501 and 501CA. Direction No 79 commenced operation on 28 February 2019.[26]

[25] Migration Act s 499.

[26] Direction No 79 is the direction currently in force.

37. In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction No 79.

38. The purpose of Direction No 79 is to guide decision-makers exercising powers under the Migration Act. It identifies certain principles which provide a framework within which decision-makers should approach their task.[27] It prescribes relevant considerations which must be taken into account but provides guidance only as to the manner in which they are to be balanced. It equips decision-makers with a wide discretion that enables them to take into account the different circumstances that may arise and to reach a result that is fair and rational in all the circumstances, while ensuring that account is had to particular considerations.[28]

[27] Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562, 585 [80]–[81] (Lesianawai). The Court was discussing Direction No 55, but the reasoning applies equally to Direction No 79.

[28] Lesianawai 586 [83].

39.     Paragraph 6.1 of Direction No 79 sets out the ‘Objectives’ of the Migration Act. Paragraph 6.2 of Direction No 79 provides ‘General Guidance’ as follows:

(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.

(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.

40.     Paragraph 6.3 of Direction No 79 sets out ‘Principles’ which must be taken into account by persons making decisions under s 501CA(4) of the Migration Act, including the Tribunal as follows:

(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on

non-citizens in the expectation that they are, and have been, law-abiding,

will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

41.     Informed by the principles set out in para 6.3 of Direction No 79, the Tribunal must take into account the primary considerations and other considerations in Part C of Direction No 79, with regard to the specific circumstances of the case,[29] in deciding ‘whether to revoke the mandatory cancellation of a non-citizen’s visa’.

[29] Direction No 79, para 13(1).

42.     The primary considerations in Part C of Direction No 79, in deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, are:

(a)protection of the Australian community from criminal or other serious conduct;

(b)the best interests of minor children in Australia; and

(c)expectations of the Australian community.

43.     The decision-maker must also take into account other considerations insofar as they are relevant to the matter, including, but not limited to: international non-refoulement obligations, strength, nature and duration of ties to Australia, the impact of non-revocation on Australian business interests and victims and the extent of impediments if removed.

44.     

Further guidance as to how a decision-maker is to apply the considerations in

Direction No 79 can be found in para 8 of Direction No 79, ‘Taking the relevant considerations into account’, which provides:

(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non­-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.

(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

(4)Primary considerations should generally be given greater weight than the other considerations.

(5)One or more primary considerations may outweigh other primary considerations.

THE APPLICANT’S OFFENDING HISTORY

45.     The Applicant’s offending history is set out in the ‘Nationally Coordinated Criminal History Check Results Report’ dated 8 February 2021 and the Australian Criminal Intelligence Commission ‘Check Results Report’ dated 11 November 2020.

46.     The Applicant did not dispute the contents of the report however in cross-examination he indicated that he had one conviction for an offence committed on 20 October 2015 for possession with intent to sell or supply for which he was sentenced to six months’ imprisonment but which did not appear on his record.[30] Given the uncertainty regarding the details of that conviction the Tribunal has not included it in the schedule of offences below or at Annexure A.

[30] R3, page 301; transcript, pages 31 and 33.

47.     The Western Australia Police Force History for Court[31] compiled 8 February 2021 indicates that the Applicant has been convicted of 25 offences including:[32]

[31] R3, pages 271–275.

[32] Dates cited are dates of court results.

(a)Drug offences: possess a prohibited drug and possessing a prohibited drug with intent (16 May 2005); possess a prohibited drug (amphetamine) (10 March 2015); two counts of possess drug paraphernalia containing prohibited drug/plant (18 May 2016); possessed a prohibited drug (27 March 2018); possession of a prohibited drug with intent to sell or supply (methylamphetamine) (15 August 2019); possessed drug paraphernalia in or on which there was a prohibited drug or plant (19 August 2019); sold or supplied, or offered to sell or supply, a trafficable quantity of methylamphetamine (24 July 2020);

(b)Property Offences: aggravated burglary and commit (15 August 2019); possession of stolen or unlawfully obtained property (19 August 2019); criminal damage or destruction of property (17 December 2019);

(c)Driving and traffic offences:

no authority to drive – never held (5 February 2015); no authority to drive – never held and disqualified (10 March 2015); failed to stop when called upon to do so – circumstance of aggravation, reckless driving – dangerous to public or person (to escape pursuit), no authority to drive – never held, no authority to drive – never held Australian license and is disqualified (18 May 2016); no authority to drive (never held) (29 October 2018); no authority to drive (fines suspended) (22 November 2018); no authority to drive (fines suspended)

(19 August 2019);

(d)Offences involving public officers and police orders: fail to obey an order given by an officer (19 August 2019);

(e)Firearms offences: unlicensed person possess firearm/ammunition, two counts any person in possession of any firearm/ammunition and is not the holder of a licence/permit commits a crime (18 May 2016).

48.     The Tribunal notes the Applicant has a juvenile record which has been relied on by the Respondent, and taken into account by the Tribunal only for the purpose of establishing the time that the Applicant began offending in Australia. Accordingly, the Applicant’s juvenile record has not been included in the summary of offences.

49.     The details of the Applicant’s offending are considered further below.

DOES THE APPLICANT PASS THE CHARACTER TEST?

50.     The Applicant accepted that he does not pass the character test.[33]

[33] A33 at [11].

51. As noted above, the character test is defined in s 501(6) of the Migration Act.

Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’ as defined by s 501(7). Relevant to the Applicant’s case,

a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’ (s 501(7)(c) of the Migration Act).

52. The Applicant has been sentenced to a term of imprisonment in excess of 12 months and, as a result, has a substantial criminal record as defined in s 501(7) of the Migration Act. Therefore, he does not pass the character test under s 501(6)(a).

53.     The Tribunal is not satisfied that the Applicant passes the character test (see
s 501CA(4)(b)(i) of the Migration Act).

IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?

54. As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then consider whether, having regard to the primary and other considerations in Direction No 79, there is another reason why the Cancellation Decision should be revoked.

Primary Considerations

Protection of the Australian community (para 13.1 of Direction No 79)

55.     Paragraph 13.1(1) of Direction No 79 provides that:

(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

56.     Paragraph 13.1(2) provides that consideration should also be given to two issues: the nature and seriousness of the Applicant’s conduct to date; and the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.

57.     In summary, the Applicant submitted the following with respect to his risk of reoffending:

·he accepted his offending record ‘would be viewed as serious’;[34]

·his rehabilitation while in prison mitigates his risk to the Australian community;

·his offending was linked to his addiction to methylamphetamine and occurred over a three-year period. He is now clean and sober and engaging in rehabilitation to deal with the causes of his offending;

·his risk of further offending was low, having regard to the steps he has made in rehabilitation, the strengthening of his relationship with his family, his reengagement with Christianity, his connection to Maori cultural support groups (which has been strengthened in prison) and his efforts in ‘building himself professionally’ in prison including working in the prison as a head chef and mentoring other inmates in this capacity;[35]

·his acknowledgement of the offending, his guilty plea at the earliest opportunity, his deep remorse for his offending and his acknowledgement of the damage drug trafficking does to the community;

·the impact incarceration has had on the Applicant including separation from his family, in particular his daughters and granddaughter;

·his positive conduct in prison demonstrating good character and positive work skills, which he would utilise in the community on release from prison;

·the strong prosocial support which the Applicant will receive from family, friends and extended community groups upon release from prison including a plan for housing, work and rehabilitation which further mitigates the risk of reoffending; and

·the fact that the Applicant was in the community and drug free for a period of 10 years, indicating his capacity to live a drug-free prosocial life with family and community support.

[34] A33 at [15]

[35] A33 at [17]; R2, G12; A18; A16.

58.     The Respondent contended that the Applicant’s offending should be viewed very seriously having regard to Direction No 79. Further, the Respondent contended that the Applicant’s history of offending and conduct, including evidence of violence against domestic partners, should be viewed seriously. The Respondent contended that the Applicant’s drug offending was serious and presented a significant risk to the Australian community, including when combined with his history of serious firearms offences and aggravated property offences. The Respondent further submitted that the Applicant’s history of traffic offending was serious and demonstrated a reckless disregard for Australia’s laws and was a significant risk to the community. The Respondent contended that the serious nature of the Applicant’s offending and of the consequences which could flow from any repetition of such offending mean that the community should not be expected to tolerate any risk of similar offences being repeated. In any event, the Respondent submitted that limited weight should be placed on the Applicant’s claimed efforts at rehabilitation and remorse, given that his rehabilitation was untested in the community and he had relapsed following previous periods being drug free including his previous period of 18 months’ imprisonment in 2015-2017. In such circumstances, the Respondent maintains that the Applicant remains an unacceptable risk to the Australian community.

Nature and seriousness of the conduct (para 13.1(2)(a) of Direction No 79)

59.     Paragraph 13.1.1(1) of Direction No 79 provides:

(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:

a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;

e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

f)The cumulative effect of repeated offending;

g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);

i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.

60.     In considering the protection of the Australian community the Tribunal must give consideration to the nature and seriousness of the Applicant’s offending and other serious conduct.

Drug-related offending

61.     As noted above, the Applicant was convicted of the offence of ‘sold or supplied, or offered to sell or supply, a trafficable quantity of methylamphetamine’ on 24 July 2020, after pleading guilty. Having regard to the sentence imposed, this was arguably the most serious of the Applicant’s convictions though it followed the convictions which gave rise to the Cancellation Decision.

62.     In her sentencing remarks, her Honour Lonsdale DCJ summarised the facts of that offence as follows:[36]

… in late September, police obtained warrants to intercept your telephone. And on Saturday, 6 October 2018, a person by the name of [name omitted] contacted you to buy methylamphetamine.

Subsequent telephone calls reveal that [name omitted] sought to purchase two ounces of methylamphetamine; that is, 56 grams, for between $5,300 and $5,000 per ounce. …

On 19 October 2018, you were arrested and your mobile telephone was seized. Police contacted you on 4 January 2019, and you were offered an opportunity to participate in an interview. But you declined to do so and you were then arrested.

[36] R2, G14, page 52.

63.     Having noted the Applicant’s apparent remorse and efforts at rehabilitation, her Honour referred to the very serious nature of the Applicant’s offending for the 24 July 2020 offence in the following terms:[37]

Your offending, however, was very serious. It involved the sale of a large quantity of methylamphetamine. You were motivated I find to some extent by financial reward, albeit that I'm told that you were to only receive about $600 as partial relief for a drug debt. 

[37] R2, G14, page 52.

64.     Her Honour accepted that the Applicant was appropriately characterised as a ‘mid-level drug dealer’ and not a ‘go-between’ as suggested by his lawyer. Her Honour considered that:[38]

… the fact that you may have acted effectively as a facilitator does not in my view diminish to any significant extent your culpability. By doing what you did, you played an important and integral role in the distribution of drugs by effectively brokering a deal between two people known to you.

[38] R2, G14, page 53.

65.     Her Honour also acknowledged the Applicant’s ‘difficult childhood’ including his parents’ drug use, his history of consistent employment and relatively stable decade without offences on his record. She also notes his offending history including his prior conviction for supplying methylamphetamine.[39]

[39] R2, G14, page 53.

66.     As noted above, the Applicant was also convicted of the offences of ‘Aggravated Burglary and commit’ and ‘Possession of a Prohibited Drug with Intent to Sell or Supply (Methylamphetamine)’ on 15 August 2019, after pleading guilty. Those were the convictions which gave rise to the Cancellation Decision.

67.     With regard to the ‘Possession of a Prohibited Drug with Intent to Sell or Supply (Methylamphetamine)’ offence, according to her Honour Sweeney DCJ‘s sentencing remarks the Applicant was found in possession of a ‘sizeable quantity’ of 12.8 grams of methylamphetamine at 67 per cent purity.[40] The Applicant was also in possession of three empty medium-sized clipseal bags, a Samsung mobile phone that he refused to give police the code for (giving rise to the failure to obey a police order offence) and $3,000. Her Honour accepted that the Applicant had won the cash at the casino as part of overall winnings of ‘some $12,500-odd’ amount. Her Honour accepted for the purposes of sentencing that the Applicant was able to purchase the drugs for himself and further found:

… that you would have shared some of it with mates who had previously shouted you without having to take money off them in order to recoup your expenses, the State accepts you would have used some of the drugs for yourself and you would have supplied to friends for free.

[40] R2, G15, page 58.

68.     Her Honour noted that the maximum penalty for the offence was 25 years’ imprisonment or a $100,000 fine or both.

69.     In assessing the seriousness of the ‘Possession of a Prohibited Drug with Intent to Sell or Supply (Methylamphetamine)’ offence, her Honour held:[41]

… I’ll take into account that your intent to supply that drug was not a commercial one, and that, because of your big win at the casino, it meant you could afford to buy big, which then meant, of course, you were caught in possession of a much larger sum of methylamphetamine than you ordinarily would have been.

It’s still a serious offence, because it still involved you being in possession of 12.8 grams, a pretty reasonable amount, with an intent to supply. Even though it was not on a commercial basis, your intent still involved the supply of this very harmful drug to others.

But the offence is less serious than it would have been, had you been intending to sell this drug for profit. And I will take that into account in your favour. And I will also take into account that, for a person who has a problem with drugs, winning a sum like 12 and a half thousand dollars at the casino, which can then be cashed, is obviously not a good thing, though I’m sure it felt like a good thing when it occurred. I’ll also take into account that there was a degree of cooperation on your part with the police, and that you made admissions. …

Although the quantity of drugs is not modest, and would ordinarily attract a longer sentence than I am about to impose, taking into account the intent to supply only, as opposed to any commercial intent, and also taking into account that the quantity and the relevance of that is informed by the fact, as a serious drug user, you had a win of 12 and half thousand dollars. And I can accept that that was just too big a temptation for someone who was using drugs. But that meant you ended up with a bigger quantity than you would otherwise have had.

[41] R2, G15, pages 61 and 63.

70.     Her Honour also noted the need for general deterrence with respect to the offence given the harm methylamphetamines cause to the community:[42]

There is a need to impose a sentence which deters you from continuing to be involved in drugs. There is a need to send a message out to the community that if you’re in possession of methylamphetamine with intent to sell or supply that to others, you’ll be met with serious punishment, because of all the harm that drug does to the community.

[42] R2, G15, page 63.

71.     In considering whether it was appropriate to impose a suspended sentence in relation to the supply of methylamphetamine offence, her Honour stated:

… the seriousness of that offence dictates a term of immediate imprisonment, as does the fact that you face the other serious offence of the aggravated burglary.

72.     The Applicant had a history of earlier drug offences including for ‘possess prohibited drug’ and ‘possess prohibited drug with intent’ in 2005 and ‘Possess a Prohibited Drug (Amphetamine)’ in 2015. He was also convicted of ‘Possess Drug Paraphernalia containing a prohibited drug/plant’ in 2016 and 2019 and ‘Possessed a prohibited drug’ in 2018. 

73.     The Tribunal acknowledges that the Applicant had a period without recording any drug convictions between May 2005 and March 2015. This is to be commended. The Tribunal also acknowledges that the Applicant had a difficult childhood and that there is a strong history of drug use and/or abuse in his family.  However, while this may provide some explanation for the Applicant’s drug use it does not, in the Tribunal’s view, reduce the seriousness of the Applicant’s drug offending. In this regard the Tribunal notes that the Applicant has been convicted of a number of drug-related offences over a number of years, that his offending has increased in seriousness from possession to trafficking and that his offending has continued despite previous convictions. 

74.     Further, the Applicant’s offending suggests that he has consistently been involved with not just drug use but possession with intent and ultimately dealing in drugs. In cross-examination, the Applicant conceded that he had been involved in drug-dealing.[43] Drug offending that contributes to the sale and supply of methylamphetamine is serious, in part due to what has been previously described by the Tribunal as the ‘devastation inflicted on the community as a result of the production, distribution and use of methamphetamine’.[44]

[43] Transcript, pages 29–31.

[44] Lau and Minister for Immigration and Border Protection [2017] AATA 138 per Deputy President Kendall (cited by the Respondent).

75.     The Applicant conceded that his offending would be viewed as serious and the Tribunal considers that with respect to his drug related offending, his offending and conduct was very serious. In the Tribunal’s view this is also reflected in the sentences that the Applicant has received including his most recent sentence of four years’ imprisonment. That sentence took into account the fact that the Applicant was already serving a sentence of over two years and was discounted accordingly. Her Honour Lonsdale DCJ also had regard to mitigating factors including the Applicant’s personal history, guilty plea and demonstrations of remorse. Notwithstanding these considerations, the Applicant was sentenced to what can only be regarded as a significant period of incarceration. In this regard the Tribunal notes that sentences involving terms of imprisonment are a last resort in the sentencing hierarchy and the Courts have judged the Applicant’s offending to warrant a term of imprisonment on multiple occasions.[45]

[45] PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22] (cited by the Respondent).

Property and weapons offences

76.     With regard to the ‘Aggravated Burglary and commit offence’, her Honour Sweeney DCJ summarised the facts as follows:[46]

[46] R2, G15, pages 58–60.

The grounding offence for the aggravated burglary is an offence of criminal damage. You and the victim had once been in a full on relationship, but by mutual consent it seems that it ended, had been converted into to use a colloquial expression a friends with benefits arrangement.

According to you, you generally got on well, but the problem was she often lied to you. According to her the issue is that she’s frightened of you and you’d previously assaulted her.

You told the police that she’d stolen money from you. What that’s translated into is that you had a cheque from the casino for that large amount of winnings, the $12,500-odd. You don’t have a bank card. You needed to get the cheque cleared so she took the cheque, she banked that into her account then she was going to give you that amount of cash and you’ve said that’s something that she’s done on multiple occasions for you.

On this occasion you didn’t get all of that cash from her and I understand that you allowed her to retain some $3,000-odd by way of a loan, that she was then going to pay you back within a time frame and then she didn’t pay you back within the expected time frame.

You accept that your demands became more and more aggressive to the point where she changed the locks on you. It’s in those circumstances you’ve said that you’ve admitted putting a wheel clamp on the car that she was driving around in order to persuade her to talk to you about the money.

You seemed when you spoke to the police to think that that was fairly reasonable behaviour. You admitted then going up to her door, trying to use keys to get in and finding that the locks had been changed and then in frustration and anger you’ve kicked the door multiple times until you kicked your way in and got pepper sprayed in the face for your troubles.

The CCTV footage I’m told shows you repeatedly entering and re-entering the house notwithstanding that you’d just been sprayed with pepper spray, behaving in a very volatile sort of fashion and then inside the house you’ve committed the offence of criminal damage as outlined by the prosecution and you were obviously in such a state of volatile behaviour that you’ve actually dislocated your own shoulder in lifting something heavy.

You didn’t hurt her, but you certainly scared her, which of course is why she sprayed you with the pepper spray when you were trying to get in. When you spoke to the police you appeared to just completely lack an understanding that your behaviour was violent and unreasonable and wasn’t going to achieve any sort of level of cooperation from a person.

Even taking you on trust that she did owe you money you had absolutely no right to behave in that fashion.

77.     In assessing the seriousness of the ‘Aggravated Burglary and commit’ offence, her Honour held:[47]

In relation to the burglary offence, I’ll take into account that you didn’t actually harm Ms [Biagoni], although you did obviously scare her. I will take into account, because the State is in no position to contradict it.

And I’m prepared to take it on trust, that you and the complainant have been in contact while you’ve been in prison. And I infer from that, that you’ve reached a better understanding with each other, and been able to talk through what happened.

The offence occurred in the context of frustration on your part over money. It was obviously excessive. It was over the top and volatile, and no doubt influenced by the fact that at that time in your life you were taking drugs.

[47] R2, G15, pages 61, 63–64.

78.     Her Honour took that background and the Applicant’s ‘degree of cooperation’ with police into account when sentencing the Applicant for the aggravated burglary offence. She also took into account that the Applicant had ‘made substantial admissions in relation to that matter’. In considering these factors her Honour noted that:[48]

… the incident was still frightening and volatile, and the money issue doesn’t begin to justify the way you behaved on that incident.

[48] R3, page 403.

79.     Her Honour noted that the Applicant was on bail for the drug offence then when he committed the aggravated burglary offence. The Tribunal notes this offence is the only burglary related offence in the Applicant’s offending history.  However, the Applicant was also convicted of ‘Criminal Damage or Destruction of Property’ and received a custodial sentence for that offence. With respect to the criminal damage offence Magistrate Watt noted:

It’s a serious offence because it is a criminal damage with – that means it’s intentional but it’s not at the upper end of the scale of seriousness of that type of charge. I have to stop other people and think about how I can effect that through general deterrence aspects in sentencing and stop you from behaving in this way. And you actually don’t have a record for anything like that.

80.     In the Tribunal’s view, the sentences handed down for these property offences reflected the seriousness with which they were viewed by the courts, imposing a term of imprisonment of 18 months for the aggravated burglary offence and a three-month (concurrent) term for the criminal damage offence. Given that sentences of imprisonment are a last resort, the Tribunal regards these sentences to reflect the courts’ view of the seriousness of that offending, particularly with respect to the aggravated burglary offence.

81.     The Applicant also has multiple convictions for the possession of unlicensed firearms, albeit these offences all arose from a single incident. The offences arose from an incident where the Applicant was arrested carrying a black bag containing a range of weapons including:

·a loaded 12-gauge shotgun with sawn off barrel and torch taped to the top of the barrel;[49]

·a loaded .22 calibre handgun with the sawn off barrel;[50]

·ammunition including five 12-gauge shotgun rounds and 29 .22 calibre rounds.[51]

[49] R3, page 304.

[50] R3, page 305.

[51] R3, page 306.

The arrests occurred in the context of the execution of a search warrant with respect to the Applicant’s co-accused on that occasion on suspicion of drug related offences.

82.     

The Applicant pled guilty to this offence but maintained at the hearing that whilst he was carrying the bag, he did not know what was in it and the contents belonged to his

co-accused on that occasion. He conceded that he did not tell the police at the time that the guns in the bag belonged to his co-accused.[52] Given the Applicant pled guilty to the offence, was convicted of it and offered no corroborating evidence to suggest that the items in the bag were not his, the Tribunal does not accept this explanation. To do so would require the Tribunal to go behind the conviction and the Tribunal does not consider that the Applicant established any basis for doing so.

[52] Transcript, pages 24–26.

83.     The Respondent contended that the aggravated burglary and weapons offences were ‘violent offences’ to which para 13.1.1(1)(a) of Direction No 79 applies. The Respondent contended that by operation of that paragraph such crimes are to be viewed ‘very seriously’ and that the Tribunal has no discretion to view them in a lesser or different light.[53] The Respondent also submitted that as the victim of the burglary was the Applicant’s domestic partner, the crime constituted a violent crime against a woman which was similarly to be viewed very seriously regardless of the sentence imposed by operation of para 13.1.1(1)(b) of Direction 79.

[53] citing Minister for Home Affairs v Stowers [2020] FCA 407 at [45].

84.     

The Tribunal has some difficulty with the submission that the burglary offence is properly construed as a violent offence for the purposes of Direction No 79. While her Honour Sweeney DCJ noted that the Applicant’s behaviour was violent and unreasonable with respect to the burglary, he was not charged with any offence which would normally be regarded as a violent offence, for example assault. In such circumstances the Tribunal regards that the submission calls upon it to unnecessarily stretch the definition of a ‘violent crime’ provided for under Direction No 79. This also applies to the submission that the crime was a violent crime committed against a woman. Notwithstanding these concerns,

the Tribunal does regard the offences to be serious and to contribute to the overall assessment of the Applicant’s offending history. It was clear from her Honour Sweeney DCJ’s comments that the Applicant’s conduct in the circumstances was both violent and unacceptable. The degree to which her Honour regarded the behaviour as such is reflected in the sentence which she imposed. In such circumstances the offending can in the Tribunal’s assessment be characterised as very serious regardless of whether or not it comes within the ambit of a violent offence as envisaged by Direction No 79.

Driving and other offences

85.     As noted above, the Applicant has nine serious driving offences in Australia including seven unlicensed driving offences, a conviction for reckless driving and failing to stop when called upon to do so. The latter convictions resulted from a high-speed chase that the Applicant was involved in on 26 March 2015, which ultimately ended in the Applicant crashing head-on into another road user, injuring the passenger in his vehicle.[54] The Tribunal notes that the Applicant was charged on this occasion in relation to the vehicle being stolen, however he was not convicted of that offence and claimed the car (which was rented) had been loaned to him by a friend. The Tribunal has not had regard to that charge given the Applicant’s denial and the lack of a conviction with respect to it.

[54] R3, pages 313, 317.

86.     In the Tribunal’s view, repeat driving offences including persistent driving without a licence are serious, both in terms of the risks such behaviour presents to the community and because it demonstrates a disregard for the laws of Australia.  As Senior Member Tavoularis noted in Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 (Bartlett) at [43]–[45]:

43.… There is, to my mind, nothing to be said in mitigation for serious irresponsibility in the management and control of a motor vehicle. …

44.… This Applicant (as is the case with virtually all drivers) knew or ought reasonably to have known the potentially serious adverse consequences of unlicensed driving, or driving an unregistered/uninsured vehicle, for other road-users. Whilst no expertise in the motor insurance industry, it is common knowledge that there are insurance implications for unlicensed drivers and/or drivers of unregistered/uninsured vehicles who become involved in motor vehicle accidents. Again, for the Applicant to ignore this obvious and serious consequence of his driving conduct demonstrates an incapacity to distinguish right from wrong and to otherwise conform to the insurance/registration regime of the Australian community as it relates to the ownership and operation of a motor vehicle.

Associate

Dated: 1 April 2021

Date of hearing:	19 March 2021
Advocate for the Applicant:	Eve Cassandra Watts, Inclusive Migration Australia
Solicitors for the Respondent:	Ashley Burgess, Sparke Helmore Lawyers

ANNEXURE A – TABLE OF THE APPLICANT’S OFFENDING

Conviction Date	Court	Offence	Offence Date(s)	Court Result
1.	24 July 2020	Perth District Court of Western Australia	Sold or supplied, or offered to sell or supply, a trafficable quantity of methylamphetamine	6 October 2018	Drug Trafficker Declaration; Four years’ imprisonment (cumulative from 24 July 2020)
2.	17 December 2019	Perth Magistrates Court	Criminal damage or destruction of Property	18 November 2018	Three months’ imprisonment (concurrent from 17 December 2019)
3.	19 August 2019	Perth Magistrates Court	Fail to obey order given by an officer	19 October 2018	$350 fine
4.			Possessed drug paraphernalia in or on which there was a prohibited drug or plant		$250 fine
5.			Possession of stolen or unlawfully obtained property		$500 fine
6.			No authority to drive (fines suspended)		$200 fine
7.	15 August 2019	Perth District Court of Western Australia	Aggravated burglary and commit	18 November 2018	18 months’ imprisonment (cumulative from 18 November 2018)
8.			Possession of a prohibited drug with intent to sell or supply (methylamphetamine)	19 October 2018	12 months’ imprisonment (cumulative from 18 November 2018)
9.	22 November 2018	Perth Magistrates Court	No authority to drive (fines suspended)	23 October 2018	$200 fine
10.	29 October 2018	Perth Magistrates Court	No authority to drive (never held)	21 September 2018	$500 fine; Three months’ motor vehicle license disqualification (cumulative)
11.	27 March 2018	Perth Magistrates Court	Possessed a prohibited drug	17 February 2018	$500 fine
12.	18 May 2016	Perth Magistrates Court	Any person in possession of any firearm/ammunition and is not the holder of a licence/permit commits a crime	11 August 2015	Six months’ imprisonment (concurrent from 18 May 2016)
13.			Any person in possession of any firearm/ammunition and is not the holder of a licence/permit commits a crime		Six months’ imprisonment (cumulative)
14.			Possess drug paraphernalia containing prohibited drug/plant		No sentence
15.			Possess drug paraphernalia containing prohibited drug/plant	26 March 2015	No sentence
16.			Unlicensed person possess firearm/ammunition	11 August 2015	Three months’ imprisonment (concurrent)
17.			No authority to drive – never held Australian license and is disqualified	11 July 2015	Six months’ imprisonment from 20 October 2015; Nine months’ motor vehicle license disqualification (cumulative)
18.			No authority to drive – never held	26 March 2015	$100 fine; Three months’ motor vehicle license disqualification
19.			Reckless driving – dangerous to public or person (to escape pursuit)		10 months’ imprisonment (concurrent from 20 October 2015); Two years’ motor vehicle license disqualification (concurrent)
20.			Failed to stop when called upon to do so – circumstance of aggravation		Six months’ imprisonment (concurrent from 20 October 2015); Two years’ motor vehicle license disqualification (concurrent)
21.	10 March 2015	Perth Magistrates Court	Possess a prohibited drug (amphetamine)	16 February 2015	$400 fine
22.			No authority to drive – never held and disqualified		Nine months’ motor vehicle license disqualification (cumulative); $400 fine
23.	5 February 2015	Armadale Magistrates Court	No authority to drive – never held	21 December 2014	Three months’ motor vehicle license disqualification (concurrent); $200 fine
24.	16 May 2005	Perth Magistrates Court	Possess prohibited drug	Unknown	$200 fine
25.			Possess prohibited drug with intent		$400 fine

ANNEXURE B – LIST OF DOCUMENTS ADMITTED INTO EVIDENCE

At the hearing, the Tribunal admitted the following documents into evidence:

·birth certificates[207] (A1);

[207] Including Ms A, the Applicant, Daphne Naussedat (née Harris), Mstr L, Ms T, Ms H, Ms S, Mstr K, Mstr C, Ms KM and Ms AD.

·Ace Harris criminal record (referred to as statutory declaration appendix one in several witness statements) (A2);

·statutory declaration of Charlene Curtis dated 23 February 2021 (A3);

·witness statement of Ace Harris dated 22 February 2021 (A4);

·statutory declaration of Benjamin Kake dated 19 February 2021 (A5);

·statutory declaration of Daphne Naussedat dated 23 February 2021 (A6);

·witness statement of Darren Naussedat (unsigned) (A7);

·statutory declaration of Ria Harris dated 23 February 2021 (A8);

·statutory declaration of Shanaye Curtis dated 23 February 2021 (A9);

·statutory declaration of Jade Bennett dated 23 February 2021 (A10);

·witness statement of Stanley Headland Snr (unsigned) (A11);

·Statement from Ace Harris dated 16 March 2021 (A12);[208]

[208] On the morning of the hearing, Ms Watts filed an amended document list with the Tribunal with the intention of removing A27 from evidence. The Tribunal notes that a reference to document A12 was also omitted from this list. However, the Tribunal infers that this omission was unintentional, given that Ms Watts signified the omission of A27 with a blank description box.

·statutory declaration of Stanley Charles Headland (Jnr) dated 19 February 2021 (A13);

·summary of Aboriginal and Torres Strait Islander Stolen Generation Report the Healing Foundation, undated (A14);

·Letter from Dr Nay Latt, Prime Medical Centre dated 20 February 2021 re Ms A (A15);

·Department of Justice, Western Australia, ‘Individual Management Plan’ for Ace Harris created 4 December 2020 (dated 12 February 2021) (A16);

·Department of Justice, Western Australia, ‘Prisoner Performance Feedback’, Created 4 December 2021 (dated 12 February 2021) (A17);

·Corrective Services, Department of Justice, Western Australia, ‘Visits History - Offender (Offender Copy)’, date range 18 November 2021 – 5 February 2021 (A18);

·copies of eight photographs identified as the Applicant’s childhood photographs (A19);

·copies of 40 photographs identified as the Applicant’s family photographs (A20);

·‘The Family Tree on the Father’s Side Only’ identified as the Applicant’s family tree in Australia (A21);

·

letter from Andrea Thygesen, Registrar, Apprenticeship and Traineeship Support Network, Department of Education and Training, Western Australia, dated

22 November 2004, titled ‘Apprenticeship: Ace Benjamin Harris’ regarding offer of cooking apprenticeship (A22);

·letter from Jill Wynn, Marketing Manager, Westfield, dated 22 December 1998 re Westfield School Sports Awards in region Junior Metropolitan (A23);

·order of service, Jack Harrison Dunn (27 October 1986 – 28 January 2003) and order of service, Joshua Antonio Zinni-Forbes (1 March 1996 – 17 March 2013) marked ‘death notices for Applicant’s friends’; (A24);

·Applicant’s baptism certificate, World Impact Church, dated 11 May 2008 (A25);

·Aboriginal and Torres Strait Islander Stolen Generation Report, Australian Institute of Health and Welfare, Canberra, 2018 (A26);

·exhibit A27 omitted and not admitted;

·letter of Tui Naussedat, (unsigned and undated) (A28);

·letter of Hope Naussedat, (unsigned and undated) (A29);

·copies of five sports photographs including the Applicant (A30);

·graduation certificate in the name of the Applicant, 10 week basic Maori language course,  Kura Kia Kaha, 30 September 2020; certificate of completion in the name of the Applicant, Discovering God, September – December 2019; Certificate 2021 Maori Awards in the name of the Applicant, Kapai te mahi (undated); one star statement in the name of the Applicant, one star food safety and hygiene training at Acacia Prison, 24 May 2020 (A31);

·Department of Justice, Western Australia, ‘alcohol and other drugs certificate of participation’ in the name of the Applicant, participation in brief intervention therapy group dated 7 March 2019; Lifeskills certificate of completion in the name of the Applicant dated 10 June 2019; letter from Programs Department, Acacia Prison dated 21 December 2020 confirming the Applicant’s attendance at 12 recovery from addiction meetings at Acacia Prison; Outcare certificate of participation in the name of the Applicant regarding participation in a Career Development Workshop on 11 April 2019; certificate for the Green Lighthouse Program, certifying the Applicant completed a six week voluntary drug and alcohol mentoring program in January 2020 at Acacia Prison; certificate of completion for the Alpha Course in the name of the Applicant, July – September 2020 (A32);

·Applicant’s revised Statement of Facts, Issues and Contentions, dated 19 March 2021 (A33);

·Respondent’s Statement of Facts, Issues and Contentions, dated 10 March 2021 including annexure A ‘Final Report of the National Ice Taskforce 2015 (R1);

·section 501G documents (G1–G30), filed with the Tribunal 4 February 2021 (R2); and

·tender bundle, filed with the Tribunal 11 March 2021 (R3).