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

[2021] AATA 3056

HDWH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3056 (26 August 2021)

Division:GENERAL DIVISION

File Number:          2021/3653

Re:HDWH  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member Rebecca Bellamy

Date:26 August 2021

Place:Brisbane

The reviewable decision is affirmed

........................[SGD]................................................
Member Rebecca Bellamy

CATCHWORDS

MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – alcohol related offending – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)

CASES

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

FYBR v Minister for Home Affairs [2019] FCAFC 185

Minister for Home Affairs v Buadromo [2018] FCAFC 151

SECONDARY MATERIAL

Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Member Rebecca Bellamy

26 August 2021

THE ISSUE BEFORE THE TRIBUNAL

1. The Applicant is a 22-year-old citizen of New Zealand. In May 2003, when he was three years old, he and his mother permanently moved to Australia. The most recent visa granted to him was a Class TY Subclass 444 Special Category (Temporary) visa (“visa”).[1]

   [1]     Exhibit G1 Section 501 G documents, G2, page 124.

2. On 17 June 2020 a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and he was serving a full time custodial sentence.[2] On 14 July 2020, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[3] On 2 June 2021, the Respondent decided not to revoke the cancellation.[4]

   [2]     Exhibit G1 Section 501 G documents, G2, pages 125 to 131.

   [3]     Exhibit G1 Section 501 G documents, G2, page 53

   [4]     Exhibit G1 Section 501 G documents, G2, page 18.

3. The Applicant subsequently lodged an application for review in this Tribunal on 3 June 2021.[5] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.

   [5]     Exhibit G1 Section 501 G documents, G1 pages 3 to 8.

4. The hearing of this application proceeded on 3 and 4 August 2021. The Applicant gave evidence via videoconference. The Applicant’s mother, two other lay witnesses and a psychologist gave evidence by telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.

   LEGISLATIVE FRAMEWORK

5. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:

   4The 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.

6. I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. If either of paragraphs (i) or (ii) are satisfied, I should revoke the original decision.[6]

   [6]     Minister for Home Affairs v Buadromo [2018] FCAFC 151.

   Does the Applicant Pass the Character Test?

7. The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.

8. On 20 February 2020, the Applicant was sentenced to two successive terms of imprisonment with an effective head sentence of three years and six months. He was given a parole eligibility date of 19 November 2020. What matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[7] Accordingly, there is no doubt that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. He cannot rely on

   
   

   s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.

   [7]     See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.

   Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?

9. In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[8]

   [8]     On 1 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.

10. For the purposes of deciding whether to refuse or cancel a non-citizens visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.

11. The principles in paragraph 5.2 of the Direction may be briefly stated 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)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

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

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

    (5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

12. Paragraph 6 of the Direction provides that:

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

13. Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:

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

    (2)whether the conduct engaged in constituted family violence;

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

    (4)expectations of the Australian community.

14. Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:

    a)international non-refoulement obligations;

    b)extent of impediments if removed;

    c)impact on victims; and

    d)links to the Australian community, including:

    i)strength, nature and duration of ties to Australia; and

    ii)impact on Australian business interests

15. I note that Paragraph 7(2) provides that the primary considerations should generally be given greater weight than the other considerations and that paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.

    BACKGROUND AND OFFENDING

16. The Applicant was born in New Zealand. He permanently relocated to Australia with his mother, an Australia citizen, when he was three years old. He completed primary school and high school in Australia.

17. The Applicant commenced offending in 2015 when he was 15 years old. In relation to much of the offending, the full facts are not apparent from the material put forward by the Respondent, which includes material provided under summons by the Hervey Bay Magistrate’s and District Courts. It is to the Applicant’s credit that he made admissions to some aspects of his offending that the Respondent was unable to prove.

18. In 2005 the Applicant’s mother commenced a relationship with “Mr C” who became the Applicant’s stepfather. In January 2015 a close friend of Mr C’s, who was like an uncle to the Applicant, was diagnosed with cancer and passed away soon after. According to the Applicant, around this time in 2015, he began drinking alcohol with friends from the school that he used to attend.[9]

    [9]     Exhibit G1 Section 501 G documents, G2, page 91.

19. On 19 April 2015, the Applicant committed a public nuisance for which he was reprimanded by the Hervey Bay Children’s Court. The Applicant thinks that on that occasion he was drunk in public with his friends.[10]

    [10]    Exhibit G1 Section 501 G documents, G2, page 91.

20. Later in 2015, the Applicant stopped regularly attending school and his school was going to expel him. His mother did not know that he had stopped going to school.[11] After finding out, she convinced the school to let the Applicant stay on the basis that he had to complete all of the required assessments for Grade 11.[12]

    [11]    Exhibit G1 Section 501 G documents, G2, page 97.

    [12]    Exhibit G1 Section 501 G documents, G2, page 91.

21. In January 2016 it became known that Mr C had been in a secret relationship with his deceased friend’s widow since 2015.[13] According to the Applicant’s mother, this put a lot of stress on the Applicant as it was a difficult time for her and the Applicant felt caught in between, although he still managed to do very well in his final year of school.[14] In the hearing the Applicant said Mr C had in fact had an affair when he was working away in the mines and subsequently he started a relationship with his friend’s widow who had been a very close friend of his mother.[15] Mr C’s behaviour broke the Applicant’s trust and made him second-guess anything that he had ever told him.[16]

    [13]    Exhibit G1 Section 501 G documents, G2 page 100.

    [14]    Exhibit G1 Section 501 G documents, G2, page 97.

    [15]    Transcript, page 6, lines 5 to 14.

    [16]    Transcript, page 5, lines15 to 18.

22. On 10 April 2016, the Applicant committed public nuisance and contravention of a direction or requirement. He thinks he was drunk in public and failed to follow a direction given by a police officer.[17] On 15 April 2016 he was put on a three month good behaviour bond.[18]

    [17]    Exhibit G1 Section 501 G documents, G2, page 92.

    [18]    Exhibit G1 Section 501 G documents, G2, page 79.

23. On 26 December 2016, the Applicant committed public nuisance and two offences of assault or obstruct police. He does not recall these offences as he was too intoxicated. However, he is aware that at around 2:00am he was found walking along the Maryborough-Hervey Bay Road heavily intoxicated, he was detained by the police, he became abusive towards them and he resisted arrest.[19] He was subsequently fined for this offending.

    [19]    Exhibit G1 Section 501 G documents, G2, page 92.

24. In March 2017 the Applicant’s grandmother suffered a stroke and passed away.[20] The Applicant had been very close to his grandmother. He said it was one of the hardest things he has had to go through to-date.[21] After his grandmother passed away, his mother quit her job so she could care for the Applicant’s grandfather.[22] In early 2017, the Applicant had commenced an apprenticeship with a person who bullied him. His mother said after the Applicant resigned 18 months into the apprenticeship, she found out that the man he worked for had constantly abused and belittled him as well as physically manhandled him.[23]

    [20]    Exhibit G1 Section 501 G documents, G2, page 92.

    [21]    Transcript, page 6, lines 21 to 22.

    [22]    Exhibit G1 Section 501 G documents, G2, page 98.

    [23]    Exhibit G1 Section 501 G documents, G2, page 97.

25. On 6 May 2017, when he was 17 years old, the Applicant attended a night club with some friends. When he left the venue, he was approached by the police. He refused to stop and talk to them and tried to walk away. He refused to give his name and address when directed to do so.[24] On 1 June 2017, he was convicted of four offences including being refused entry to licensed premises, being in licensed premises when underage, contravening a direction and “assault or obstruct police licensed premises”. For the obstruction offence he was sentenced to six months’ probation and for the other offences he was fined and required to be of good behaviour for six months. 

    [24]    Exhibit G1 Section 501 G documents, G2 page 92.

26. In the early morning of 2 December 2017, one day after his good behaviour period expired, the Applicant committed a public nuisance offence in the vicinity of a licensed premises, and wilful damage. He stated he was heavily intoxicated at the time of this offending and that he did not remember the incident, however he was told that he tried to get into a fight with another patron in the taxi line and then kicked the window of a neighbouring business, causing it to shatter.[25] On 21 December 2017 he failed to appear in court in relation to those charges. On 11 January 2018 he was convicted of the offences and fined.

    [25]    Exhibit G1 Section 501 G documents, G2, page 92.

27. In March 2018 the Applicant committed three traffic infringements. On 11 March, he committed “learner drive vehicle under direction person not hold O type > 1 yr”, and on 30 March he committed “learner fail to display legible L plate at front & rear of MV” and “learner drive vehicle not under direction of person”.[26] 

    [26]    Exhibit R2, Respondent’s Tender Bundle, SM2, page 152.

28. On 25 and 26 May 2018, the Applicant committed further offences, although he was so intoxicated that he has no memory of them.[27] The police facts,[28] state that at around 11.30pm on 25 May 2018 the Applicant and another male person approached the victim and his friend. The victim stated that the Applicant “started on him” and chased him and his friend towards a nearby hotel. An altercation started that resulted in the victim’s friend being kicked. The Applicant and the other male person then started to assault the victim. The victim managed to get away and he reported the incident to security at the hotel who spoke to the police. A short time later the police located the Applicant nearby and arrested him.

    [27]    Exhibit G1 Section 501 G documents, G2, page 93.

    [28]    Exhibit R2, Respondent’s Tender Bundle, SM2, page 54.

29. During the arrest the Applicant resisted the arresting officers by swinging his arms outward and upwards. The police transitioned him to the ground and placed him in handcuffs. He yelled out words to the effect of "don't fucking arrest me, dog cunts". While being escorted to the police vehicle he pushed back on police. He also swung his head, which appeared to be an attempt to headbutt the police. He continued to shout abuse and he was spitting on the ground in what appeared to be an attempt to spit on the shoes of the officers. When he was placed in the back seat of the police vehicle, he spat saliva throughout the back seat and interior doors, which later required cleaning.

30. The Applicant was arrested and charged with wilful damage of police property, assault or obstruct police while adversely affected by intoxicating substance and commit public nuisance on licensed premises. He was released on bail with the conditions that he was not to consume alcohol and was to submit to a breath test when required by a Queensland Police Officer.[29]

    [29]    Exhibit R2, Respondent’s Tender Bundle, SM2, page 58.

31. On 17 June 2018,[30] police were speaking with Applicant regarding a separate matter. They detected a strong smell of liquor on his breath and asked if he had been drinking. He admitted to drinking alcohol earlier in the evening and submitted to a breath test which returned a positive result.

    [30]    Exhibit R2, Respondent’s Tender Bundle, SM2, page 58.

32. On 21 June 2018, the Applicant was convicted of the offences he committed on 25 and 26 May 2018 as well as the breach of bail condition. He was sentenced to 12 months’ probation and 40 hours community of service.[31]

    [31]    Exhibit R2, Respondent’s Tender Bundle, SM2, page 46.

33. While on probation the Applicant continued to offend. On 27 October 2018, while intoxicated, he punched a shop front window causing it to break. He said as a result he suffered a cut on his arm that was so serious he almost died from blood loss.[32] He was fined for this offence on 29 November 2018.

    [32]    Exhibit G1 Section 501 G documents, G2, page 93.

34. The Applicant was intoxicated in a public place on 21 November 2018. He does not remember the circumstances of this offence.[33] He received a fine on 5 December 2018.

    [33]    Exhibit G1 Section 501 G documents, G2, page 93.

35. The Applicant committed wilful damage on 2 December 2018. He said he drunkenly damaged property.[34] He was fined for that offence, along with a failure to appear on 11 April 2019, on 2 May 2019. 

    [34]    Exhibit G1 Section 501 G documents, G2, page 93.

36. Prior to his sentencing on 2 May 2019, court reports were prepared with respect to the Applicant’s non-compliance with the probation order and community service order, respectively.[35] The probation report recorded that:

    ·the Applicant's intake assessment identified high risks and needs in relation to the areas of employment, mental health and social support, and substance abuse;

    ·he had maintained stable accommodation with his mother during the order and remained in receipt of Newstart payments from Centrelink;

    ·on 27 October 2018 he contravened the order by committing wilful damage;

    ·in response to the contravention, he was told to report to a “show cause panel” to address his ongoing non-compliance on 7 December 2018, however he failed to attend. It was rescheduled to 4 January 2019 and he again he failed to attend;

    ·the Applicant had failed to report on 11 occasions throughout the order and had disengaged from supervision. He had not made any contact with community corrections since 4 February 2019; and

    ·he reported ongoing heavy drinking throughout the period of supervision, and he demonstrated an unwillingness to engage with intervention to address his offending.

    [35]    Exhibit R2, Respondent’s Tender Bundle, SM2, pages 44 to 46 and 63 to 64.

1. The community service report recorded that:

   ·on 1 August 2018 the Applicant was given a work instruction to commence on 9 August 2018, and he failed to do that;

   ·throughout September to November 2018 he continually failed to attend community service;

   ·he provided medical certificates covering 8 September to 20 October 2018 on the basis that he had a broken arm, and from 28 October to 28 November 2018 due to him having injured himself when putting his fist through a window (the wilful damage offence on 27 October 2018);

   ·as Community Corrections could not contact the Applicant, they conducted a home visit on 1 November 2018 and found him at home;

   ·he was required to attend the “show cause panel” but did not (this appears to be the same “show cause” panel that he was required to attend in relation to probation);

   ·on 10 January 2019 he indicated that he was looking to move to Brisbane. However, he failed to attend an appointment in the Brisbane office and in Hervey Bay; and

   ·throughout the period of the order the Applicant had demonstrated resistance and non-compliance.

2. In the hearing the Applicant was asked if he could explain why he did not complete community service, and he said “No, no reason”.[36]

   [36]    Transcript, page 19, lines 30 to 33.

3. On 1 June 2019, while still on probation, the Applicant committed an armed robbery. He was ultimately convicted and sentenced on the basis of the contents of a Statement of Facts[37] that was prepared for the court. According to that document:

   ·at about 5.30am on 1 June 2019 the Applicant entered a service station and approached the service counter. He was holding a large silver kitchen knife with a 30cm blade. He asked an employee to “open the till" and the employee did so, handing cash to the Applicant;

   ·the Applicant told him to put some cigarettes in a bag, which he started to do. The Applicant then said, "put the smokes in the bag and the goldies". The employee put more cigarettes in the bag as well as the gold coins from the till. As the employee was doing this the Applicant raised the knife towards him and said "more". The knife was about 15cm from the employee’s face;

   ·the Applicant asked if there was anyone in the office and was told no. He asked if there was any more money in the shop and the employee said the only money they had was what was in the till. The Applicant asked for more cigarettes. The employee filled the bag with cigarettes and handed it to him. The Applicant told him to fill one more bag and the employee put one pack of cigarettes in a second bag when a car approached the driveway. At this time the Applicant ran from the store while the employee called police; and

   ·shortly afterwards, the Applicant was located by a mobile police patrol. He voluntarily participated in a recorded interview. He told police the knife was from his house, he went to the service station with the intention of robbing it, and afterwards he had jumped the back fence and hid the knife wrapped in a t-shirt in a nearby garden bed. Police recovered the knife and his backpack which contained $852 in cash and 11 packets of cigarettes.

   [37]  Exhibit R2, Respondent’s Tender Bundle, SM1 page 26 to 27.

4. According to the Applicant, he was intoxicated when he committed this offence and in his drunken state he was upset about not having much money.[38] A short time beforehand he had spoken with a friend and the topic of robbing a service station had come up. His friend was not serious but due to the Applicant's intoxication he took it as a dare. He explained “If I was intoxicated and I said I'm going to do something then nothing would stop me doing it”. He went back to his home, got a knife, travelled to the service station, pulled a t-shirt over his head and committed the offence. He recalled parts of it, but he had been drinking for two days and was “out of it” and “adrenaline took over”.[39]

   [38]    Exhibit G1 Section 501 G documents, G2, page 93.

   [39]    Exhibit A3, Psychological Report of Dr Jacqueline Yoxall dated 28 July 2021, pages 12 to 13. 

5. After being charged with this offence, he was released on bail. He was aware that one of his bail conditions was that he could not consume alcohol.[40]

   [40]    Exhibit G1 Section 501 G documents, G2, page 93.

6. On 20 July 2019[41] while still on bail for the armed robbery the Applicant committed grievous bodily harm (“GBH”). According to the Statement of Facts referred to above:

   ·the Applicant was at a friend’s house having some drinks with a group of people including the victim. The victim knew the Applicant but they had never previously socialised;

   ·the victim, a friend of the victim and the Applicant left the house to go to the victim’s house to get more alcohol. The victim got a bottle of bourbon from the house and they all started walking back to the previous residence;

   ·the Applicant asked the victim for the bottle of bourbon and the victim told him no. The Applicant said, “don’t you trust me”. The next thing the victim remembered was being punched in the face by the Applicant. He did not remember what happened after. The victim’s friend saw the Applicant punch the victim, immediately grab the bottle of bourbon and run off; and

   ·the victim sat on the gutter, his mouth and nose bleeding. He went to the hospital the next day and an X-ray revealed he had a fracture to his inferior orbital bone on his left side. He required surgery with plates inserted under his eye and under his gums. A doctor opined that the injury constituted GBH and that if the fractures had been left untreated it would have resulted in a permanently depressed left cheek and reduced mouth opening. The following day the victim attended the police station to report the matter.

   [41]    Erroneously dated 29 July 2019 in the Applicant’s criminal history – the document entitled “Check Results Report” see Exhibit G1 Section 501 G documents, G2 pages 34 to 37.

7. According to the Applicant, when they were on their way to the victim’s house to get more alcohol, the victim was making comments about the Applicant’s arrest for the armed robbery and he said that he should not be drinking. After the victim got the bottle of bourbon and came back outside, they had another verbal exchange. The Applicant does not have a clear memory of what happened, but he believes that he perceived that the victim was going to hit him so he hit the victim first.[42]

   [42]    Exhibit G1 Section 501 G documents, G2, page 93.

8. A bail affidavit that was provided by the police in relation to the GBH charge states that at 9:14am on the date of the offence the Applicant sent a series of messages to the victim via Facebook. One stated:

   “[Name omitted] Im so sorry for what I've done and caused I want to make this right and I'll do whatever I can please [name omitted] can I meet you tomorrow To talk and apologise and try and make this right i want to work this out and show you I'm sincerely am sorry, please [name omitted] Im begging you.”[43]

   (Errors in original) 

   [43]    Exhibit R2, Respondent’s Tender Bundle SM2, page 106.

9. In the hearing I asked the Applicant why he wanted to meet the victim. He said:

   “I was actually remorseful for my actions and I just wanted to show that I was sincere as it is hard to show that sort of thing over Facebook message and I just wanted to show him that I'm not the same person that I am when I'm drunk and those actions are not something I was proud of and - and I just really wanted to apologise face to face as I think that it has more meaning than over a message.”

10. He denied an intention to try to persuade the victim not to press charges, pointing out that at that time he did not know how seriously he had injured the victim.[44] It appears that at that time the victim himself did not realise how seriously he had been injured. I accept the Applicant’s evidence.

    [44]    Transcript, page 13, line 45 to page 14, line 13.

11. On 24 July 2019 the Applicant attended the police station to report in compliance with his bail conditions for the armed robbery. He was arrested for the GBH and remanded in custody.[45]

    [45]    Exhibit R2, Respondent’s Tender Bundle, SM1 page 27.

12. While on remand, the Applicant was involved in a physical altercation with another prisoner. He later told a psychologist[46] that it happened in the context of him feeling stressed about having to live with others and accommodate others’ habits. He said that he became “overly neat” while in prison and could not tolerate another prisoner’s lack of neatness. An argument led to a physical altercation wherein he was the first one to throw a punch. He was hit by the other prisoner and sustained a fractured eye socket, fractured nose and concussion. He said after that incident he amended his behaviour - “I realised I can't do that …fighting doesn't help the situation and puts more stress on me than is already there”.[47]

    [46]    Dr Jacqueline Yoxall who gave expert evidence in these proceedings.

    [47]    Exhibit A3, Psychological Report of Dr Jacqueline Yoxall dated 28 July 2021, page 15. 

13. I note that this act of violence was committed when the Applicant was not intoxicated. Further, his evidence indicates that his decision to amend his behaviour was based on self-interest rather than a belief that violence is unacceptable. 

14. There is a letter before me, dated 12 August 2019, from Dr Kenneth Treichel of the Murphy Street Medical Centre, addressed to the Hervey Bay Magistrate. It states:

    “I have attended [the Applicant] over a 13 year period. I believe he has developed psychological issues since his mid teens. I am told of his demeanour which leads me to believe that he has increasing problems with alcohol abuse. He and his mother have made approaches regarding alcohol management programs.”[48]

    [48]    Exhibit G1 Section 501 G documents, G2, page 105.

15. There is a letter before me dated 6 August 2019 from Bridges Health & Community Centre which appears to be a standard form letter sent in response to an enquiry about their service.[49] The Applicant had been remanded in custody at that time, so it appears the enquiry related to possible treatment after the Applicant’s release.

    [49]   Exhibit G1 Section 501 G documents, G2, page 119.

16. A court report dated 7 February 2020 detailed the Applicant’s poor compliance with the previous probation order and community service order and recommended that he was not suitable for future community-based orders.[50]

    [50]    Exhibit R2, Respondent’s Tender Bundle, SM1 pages 19 to 21.

17. On 20 February 2020 the Applicant was convicted and sentenced for:

    ·“robbery with actual violence armed/in company/wounded/used personal violence”;

    ·GBH; and

    ·Stealing (the bottle of alcohol that the Applicant took).

18. The Applicant was sentenced to two years imprisonment for armed robbery, and 18 months imprisonment for GBH which was to be served cumulatively, making a total effective sentence of three and a half years imprisonment. He was given a parole eligibility date of 19 November 2020. He was not further punished for stealing.

19. In passing these sentences, the learned sentencing Judge made the following remarks:

    “You are still quite a young man – 20 years of age. So there is plenty for you to look forward to if you turn your life around. The references…suggest, indeed, that this behaviour was somewhat aberrant. And you clearly have a strong family support.…You have pleaded guilty at a very early stage and, at all times…Nothing has been said about remorse. But, having regard to the material that has been provided…it would appear that this behaviour was aberrant and, quite possibly, as a consequence of your drinking problems. I am prepared to proceed on the basis that you have insight into what you have done and are ashamed of it.

    …

    Offending such as this – armed robbery and gratuitous violence – warrants, even for young offenders, a sentence that sends an appropriate message of deterrence…Robbing people in stores involves threats of violence with weapons against people that are just going about their everyday life. They are entitled to feel safe where they work. This would have been an extremely terrifying episode for this person. Although, no victim impact statement has been provided. That said, though, being still a young man, must not lose the sight of prospects of rehabilitation as it is usually through rehabilitation that the community is best protected.

    You have a criminal history but it does not involve offending of the seriousness of that, that I am dealing with here today. They seem to be street nuisance type offences involving, no doubt, abuse of alcohol. There has been a Court report tendered. It indicates that you failed to report on 11 occasions whilst the order was in place...It reports, not surprisingly, poor compliance with the orders, ongoing heavy drinking throughout the period of supervision – indeed, demonstrated resistance and non-compliance with various requirements and, not surprisingly, it stated that you are no longer suitable for future community-based orders.

    A number of references have been provided. One by your mother and one by your grandfather. You clearly have strong family support and you are seen…to be a well loved and, when not drunk – a very important person in their lives…you are held in high regard by your mother and your grandfather and, no doubt, others. And as your mother points out, a lot of your troubles are associated with what she described as your “binge drinking”.

    …if you can sort yourself out, there is every prospect of you going on to play a positive role in the community. It would also appear that you have good prospects of employment.”[51]

    [51]    Exhibit G1 Section 501 G documents, G2 page 38 to 43

20. On 27 February 2020 the Applicant was convicted of breaching the probation order and the community service order and not further punished.

21. On 19 January 2021, the Parole Board approved the Applicant’s release to immigration detention on 23 February 2021.[52] The Applicant remains in immigration detention.

    [52]    Exhibit G1 Section 501 G documents, G2, page 47.

    PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY

22. In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result 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 in 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.

23. In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:

    a)The nature and seriousness of the non-citizen’s conduct to date; and

    b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    The Nature and Seriousness of the Applicant’s Conduct to Date

24. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that 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)…;

    (iii)…;

    (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)…;

    (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)…;

    (iv)…;

    (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)…;

    (g)….

25. The Applicant’s offending must be regarded as very serious as it involves crimes of violence. He assaulted a person outside a nightclub in May 2018 and he committed GBH in July 2019. In addition, he has committed crimes that, while not involving actual battery, did involve aggressive and threatening behaviour. He was abusive towards police officers in December 2016, he tried to fight a person in a taxi queue in December 2017, while being arrested in May 2018 he tried to headbutt and spit on attending police officers and he spat on the interior of a police vehicle, and in June 2019 while he committed an armed robbery he held a knife up close to the victim’s face. He has deliberately broken a window on two separate occasions.

26. The fact that some of this offending behaviour was directed at police who were performing their duties adds to its seriousness. The attempt to headbutt and spit on police officers is particularly reprehensible given the injuries that can be caused by a headbutt and the serious diseases that can be spread by saliva.

27. The Applicant was initially given the benefit of non-custodial sentences, including community-based orders that involved supervision intended to assist him to refrain from further offending. A custodial sentence is a last resort in the hierarchy of sentencing options available to a court, and the court did resort to imposing custodial sentences for the armed robbery which the learned sentencing Judge described as something that would have been extremely terrifying for the victim, and the GBH which His Honour described as “gratuitous violence”. The total effective sentence of three and a half years is substantial, reflecting the seriousness of those offences.   

28. The Applicant’s offending was frequent, having committed some 27 offences between April 2015 and July 2019 when he was incarcerated. There was a trend of increasing seriousness over time as the offending became more violent and included an armed robbery. The cumulative effect of repeated offending was that there were several members of the community who were injured or threatened, or who suffered damage to their property because of the Applicant. Further, the Applicant subjected several police officers to obstructive and aggressive behaviour. While it does not appear that any harm came from the Applicant’s multiple traffic infringements, the substance of those infringements was that a person who should have been appropriately supervised while driving was in fact driving without the requisite supervision, and that has the obvious potential to cause traffic accidents.     

29. The relevant factor under paragraph 8.1.1(1) of the Direction weigh heavily against revocation of the cancellation of the Applicant’s visa.

    The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

30. Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker 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.

1. Under paragraph 8.1.2(2), in considering the risk to the Australian community, I must have regard to the following relevant factors:

   (a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

   (b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non- citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence.

   Nature of harm should the Applicant engage in further criminal or other serious conduct

2. The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulate that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.

3. Should the Applicant engage in further violent behaviour, the harm includes serious physical injury to members of the community, including police officers, and the psychological harm that is often associated with having been physically attacked. The harm from further aggressive, threatening behaviour includes psychological injury. It is uncontroversial that victims of armed robbery can suffer quite debilitating fear and anxiety afterwards. Offences such as this cause a ripple effect, impacting those who care about the victim, who may become overly worried about the victim who may be called upon to support the victim’s physical and/or psychological recovery.  

4. As I have observed above, the harm from further traffic infringements of the kind the Applicant committed includes an increased risk of traffic accidents. There is, therefore, the potential for injury and even death. However, I temper this by noting that there is no evidence that the Applicant’s offending involved dangerous driving, driving under the influence or another factor that is more closely and obviously connected to an increased risk of traffic accidents.

   Likelihood of engaging in further criminal or other serious conduct

5. The Applicant does not consider himself to be addicted to alcohol, but he has an alcohol misuse problem because once he starts drinking, he cannot stop. He said that when he is drunk his judgment is extremely poor and he has a tendency to become aggressive, easily agitated and hypersensitive to any possible perceived threats.[53] He said:

   “I believe that without alcohol I am actually quite a kind natured person and the alcohol turns me violent and causes me to think irrationally and gives me bad paranoia but I do not - I don't ever want to be that person again and I do not intend to drink if I am released, no.”[54]

   [53]    Exhibit G1, Section 501 G documents, G2, page 94.

   [54]    Transcript, page 9, lines 1 to 5.

6. The Applicant continued to consume alcohol while he was prohibited from doing so by his bail conditions and the conditions of his probation. He committed the armed robbery, having consumed alcohol, while on probation. He committed the GBH, having consumed alcohol, while on bail for the armed robbery.

7. While incarcerated, the Applicant completed a Resilience Program[55] and a 48 hour medium intensity intervention program.[56] He attended some Alcoholics Anonymous meetings but they were interrupted by the pandemic because the person who led the meetings was from outside the prison. There was a fellow inmate who provided support, akin to being a sponsor and also a friend, and they remain in regular phone contact although he is still in gaol.[57] The Applicant commenced an anger management programme while in immigration detention but was not able to finish it after being transferred to another centre. He is now trying to complete an online programme to address alcohol and drug misuse.[58]

   [55]    Exhibit G1, Section 501 G documents, G2, page 120.

   [56]    Exhibit A1, Applicant's Statement of Facts, Issues and Contentions dated 8 July 2021, Attachment 1.

   [57]    Transcript, page 26, lines 1 to 34

   [58]    Exhibit A3, Psychological Report of Dr Jacqueline Yoxall dated 28 July 2021, page 16.

8. The Applicant expressed regret at what he did to the victims of the armed robbery and GBH.[59] He expressed extreme remorse about the GBH.[60] The Facebook message the Applicant sent the day of the attack indicates he felt immediate remorse about that.

   [59]    Exhibit G1, Section 501 G documents, G2, page 93.

   [60]    Exhibit G1, Section 501 G documents, G2, page 93.

9. The Applicant feels that during his incarceration he has matured as a person. He described being sent to gaol as a “huge wake-up call”. He now acknowledges, in his words, “the problems that I have with alcohol and the consequences that has caused me.”[61]

   [61]    Exhibit G1, Section 501 G documents, G2, page 94.

10. The idea of having his visa cancelled and being permanently excluded from Australia terrifies the Applicant as his mother and grandfather are the only family he has and they both live in Australia, his grandfather is quite old and has some medical issues and his mother is his grandfather’s carer. He does not want his mother to have to choose between him and his grandfather.[62] I accept that if the Applicant’s visa were returned to him, he would have strong motivation to avoid re-offending. 

    [62]    Exhibit G1, Section 501 G documents, G2, page 95.

11. If the Applicant is able to remain in Australia he intends to begin attending Alcoholics Anonymous and to seek out one-on-one counselling support for his alcohol misuse and some other mental health issues that he thinks contributed to his poor decision-making when under the influence of alcohol.[63]

    [63]    Exhibit G1, Section 501 G documents, G2, page 94.

12. If the Applicant is allowed to return to the wider community, he will initially live with his mother until he sorts out his parole, a job and his driving licence.[64]

    [64]    Transcript, page 37, lines 37 to 40.

13. The Applicant has been offered a job with Eco-Drilling Solutions which operate sites throughout Queensland. In a written statement, the Applicant said he would like to move to Brisbane to get away from his history in Hervey Bay and have a clean slate. He thinks there would also be more support available in Brisbane than in Harvey Bay, and he thinks separating himself from his friends in Hervey Bay would be a good idea as peer influence has been a big problem for him when it comes to drinking alcohol.[65]

    [65]    Exhibit G1, Section 501 G documents, G2, pages 94 to 95.

14. The Applicant told Dr Yoxall that from the age of 15 years he was unable to just have a few drinks. Friends and associates would stop drinking and go home or go to bed but he would challenge them to keep drinking with him. He has never been able to say no to alcohol. He always feared that he would miss out on the fun if he declined an opportunity to drink. His participation in the football culture of the local town supported his drinking.[66] 

    [66]    Exhibit A3, Psychological Report of Dr Jacqueline Yoxall dated 28 July 2021, pages 13 to 14.

15. Given this evidence, in the hearing I sought to clarify what the Applicant had meant by peer influence having been a problem. He agreed that it was not the case that others had been persuading him to drink.[67]

    [67]    Transcript, page 25, lines 15 to 18.

16. One of the owners of Eco Drilling Solutions, Ms Bentley, provided written and oral evidence. She has known the Applicant and his mother for around five years, and she has previous experience with troubled young adults. She believes the Applicant can make better choices in the future.[68] She is prepared to offer the Applicant employment and any help that he needs with mentoring or counselling.[69] However, Ms Bentley does not have detailed knowledge of the Applicant’s criminal history and she did not know what injury the Applicant inflicted on the victim of the GBH.[70] I would have more confidence in her commitment to helping the Applicant if she had better knowledge of what she was taking on. 

    [68]    Exhibit G1, Section 501 G documents, G2, G2, page 110.

    [69]    Transcript, page 47, lines 1 to 2.

    [70]    Transcript, page 45, line 29 to page 46, line 11.

17. Dr Jacqueline Yoxall, psychologist, provided a risk assessment, dated 28 July 2021 and gave oral evidence at the hearing.[71]

    [71]    Exhibit A3, Psychological Report of Dr Jacqueline Yoxall dated 28 July 2021.

18. The Applicant told Dr Yoxall that as often as he and his friends could access alcohol, they would binge drink on weekends. By the time he was 17 he was drinking for at least two days over each weekend - “if I had footy on Saturday I would drink from Saturday afternoon to Sunday night or if I had a Sunday game I would drink all Friday night and Saturday and then play hungover on the Sunday”. 

19. Others tried to talk to him about his drinking patterns being unhealthy, but he rejected this suggestion. His mother had warned him “You should be careful with alcohol as I am not good when I drink and neither will you be”. By the time he was 18 years old he became aware that people were avoiding inviting him to events because of concerns that he would become drunk and aggressive. 

20. He told Dr Yoxall about feelings of remorse and empathy for the victims of his offending, and for the impact it has had on his mother. He has developed a relapse prevention plan and identified community support to assist him to remain abstinent from alcohol use.

21. The Applicant scored 15/40 on the HCR-20 risk of violent offending assessment tool. Dr Yoxall said that this score is generally considered to accord with a low to low-moderate risk of violence but she noted that management of identified future risks is vital to reducing the risk of reoffending. The identified future risks for the Applicant were: difficulties with managing multiple life demands and unexpected significant loss or change, and deportation to New Zealand where there is no existing support network.

22. The Applicant scored 14 on the Level of Service Inventory-Revised (LSI-R) risk assessment tool. A score between 14 and 23 normally indicates a low to moderate risk of general reoffending and a low to moderate level of general rehabilitation needs. Approximately 31.1% of people in the normative sample who scored in this range reoffended and were re-incarcerated within 12 months.

23. Dr Yoxall assessed the likelihood that the Applicant would re-offend would be low if he remains abstinent from alcohol use. If he relapses, the risk of reoffending would immediately increase substantially. She did not think that his attendance at some Alcoholics Anonymous meetings was sufficient to predict a successful re-entry into the community and maintenance of remission. She said relapse is very common for individuals recovering from alcohol abuse. In her opinion the Applicant requires an intensive, preferably residential, long term alcohol rehabilitation programme in the community that incorporates a model of graded supported return to the community as he develops strategies to ensure abstinence and practises those strategies. In oral evidence she added:

    “The problem for [the Applicant] in trying to predict what the future might look like for him it would be – he’s been in a controlled environment without access to alcohol for a long period of time, which has allowed him to develop insight he didn't have before. It’s allowed him to reconsider his behaviours and come to the realisation that he has an alcohol substance use issue and that’s laid the groundwork for him to make changes.  He hasn’t had time in the community where he’s been able to manage his alcohol misuse vulnerability where he’s been able to abstain from alcohol. He has had some intervention albeit limited whilst in the controlled environment…But it’s limited given that for a solid four years [before] that his level of alcohol misuse (indistinct) was substantial…But in my view his biggest risk is re-entry to the community and (indistinct) with the limited skills and strategies he’s learnt.”[72]

    [72]    Transcript, page 66, line 43 to page 67, line 28.

24. The Applicant said he will seek support from his mother, and he has friends who are not big drinkers.[73] He has no desire to consume alcohol or socialise with people who do. He does not think he would put himself in a situation where he would be tempted to drink.[74]

    [73]    Transcript, page 23, lines 14 to 17.

    [74]    Transcript, page 23, lines 23 to 33.

25. The Applicant described his mother as the person he can always talk to if he has things going on. They have been through a lot together, and she is his best friend.[75] However, the Applicant did not heed his mother’s advice regarding his abuse of alcohol.

    [75]    Transcript, page 7, lines 41 to 48.

26. According to his mother, she tried to help but the Applicant did not want to talk, go to church or go to Alcoholics Anonymous. She spoke with Mr C about it on several occasions and reached out to friends that met up with the Applicant. She said she tried everything she could but that “children will hide a lot and have on a poker face and especially in my situation because it's always been really [the Applicant] and I at the end of the day”.[76]

    [76]    Transcript, page 56, lines 46 to 43.

27. The Applicant admitted that he disregarded his mother’s warnings. He admitted that:     

    “…she did try sit me down and talk to me and tell me that, you know, ‘This is not good.  This is not how I've brought you up.  I didn’t raise you to do things like this’, but yes, I just obviously didn’t listen.”[77]

    [77]    Transcript, page 24, lines 20 to 23.

28. The Applicant's mother described the Applicant as her only child and the absolute love of her life. She said he had a privileged childhood and a never-ending amount of love. He had been raised with “old school” values and has always been loved and supported in everything he did. She is a recovering alcoholic, having stopped drinking eight years ago, and she thinks the Applicant inherited the gene for “this terrible disease”. She described his behaviour as outrageous and said his incarceration was devastating for her and her family.[78]

    [78]    Exhibit R2, Respondent’s Tender Bundle, SM1, pages 13 to 16.

29. In a written statement she said that since the Applicant has been in prison he has matured dramatically, taken responsibility for his “mistakes” and that he understands the effect that alcohol has had on his behaviour. He has expressed remorse not just for what he has put her through but also the harm he caused to the victim of the GBH and the service station attendant.[79]

    [79]    Exhibit G1, Section 501 G documents, G2, page 98.

30. In the hearing she referred to the Applicant recognising the pain he has caused to himself and to his family and said he would not want to put people through that again. She said:

    “…my son has huge empathy and - for other people, and I know now that he has looked back and it causes him an amount of pain, what he has put myself through and his friends…I cannot see my son making bad choices to do with alcohol any more because he knows what the repercussions are going to be and he wants a better life for himself and for me.” [80]

    [80]    Transcript, page 39, lines 30 to 41.

31. It was only when prompted that she said the Applicant regretted what he had done to the victims of his offences. [81]

    [81]    Transcript, page 55.

32. I am in no doubt that the Applicant’s mother is a loving parent who will support and defend the Applicant. I am confident that if he is committed to engaging in treatment and obeying the law, she will support him in that. However, I have reservations about her ability to steer him toward doing those things if he does not have that commitment as she seems reluctant to acknowledge the full extent and impact of his offending or to hold him fully responsible for it. For example, in relation to the GBH she said:

    “From what I understand, [the victim] was taunting [the Applicant] about breaching his bail and generally being a smartass. At some point [the Applicant] punched [the victim], breaking his jaw causing him to drop a bottle of alcohol”.[82]

    [82]    Exhibit G1, Section 501 G documents, G2, page 98.

33. The Applicant’s own evidence was that the victim told him he should not be consuming alcohol because it was a breach of his bail. He did not indicate that the victim was taunting him. Further he admitted that he had taken the bottle and deliberately smashed it.  

34. Ms J Fraser wrote a letter for the purposes of the criminal proceedings. She said she had known the Applicant and his mother for just over 20 years and remained close family friends. She said the Applicant’s mother was a great support but that she must let the Applicant be accountable and that sometimes she finds this difficult.[83] In the hearing, the Applicant’s mother said they did not see eye to eye on that issue.

    [83]    Exhibit R2, Respondent’s Tender Bundle, SM1, page 12.

35. The Applicant’s grandfather provided a letter of support in 2019 in which he said he loves and supports the Applicant’s one hundred percent.[84] He is now quite ill but I accept he could provide advice and emotional support. Mr C provided a letter of support in 2019 in which he pledged the support of himself, his partner and the eight children they have between them.[85] However, things seem to have changed now with there being no contact between the Applicant and his step-sisters and infrequent contact between the Applicant and Mr C. There are some other letters from people known to the Applicant that speak optimistically about him.[86] None of them delve into the details of the offending or their reasons for their optimism. I give this evidence considerably less weight than Dr Yoxall’s expert evidence.

    [84]    Exhibit G1, Section 501 G documents, G2, page 106.

    [85]    Exhibit G1, Section 501 G documents, G2, page 107.

    [86]    Exhibit G1, Section 501 G documents, G2, pages 108 to 118; Exhibit R2, Respondent’s Tender Bundle SM2, pages 119 to 124.

36. I accept the expert evidence of Dr Yoxall. I note in particular the significance she placed on the Applicant not having had a period of abstention from alcohol in the wider community.

37. I accept that the Applicant is currently strongly motivated to avoid re-offending and he intends to engage in appropriate treatment, however I also accept the Respondent’s contention that his plans are merely aspirational at this stage. When he was in the wider community, he avoided intervention and he consumed alcohol and offended in breach of bail conditions and court orders. The Applicant has engaged in limited rehabilitation since being incarcerated (although he wanted to do more). While he has some support in the community, I am not satisfied that any of those people wield much influence over him. Dr Yoxall warned that relapse is very common for individuals recovering from alcohol abuse.

38. Further, while most of the Applicant’s offending occurred while he was intoxicated, he physically attacked an inmate while on remand and that was not alcohol related. Nor does every person who gets drunk commit acts of aggression and violence. The Applicant’s risk of re-offending is not only related to alcohol but also to a predisposition toward violent behaviour. The applicant has had very little treatment for that – he started an anger management course but was unable to complete it.    

39. I consider there to be a low to moderate risk that the Applicant will commit further offences of the kind that he has committed.      

    Conclusion: Primary Consideration 1

40. Primary Consideration 1 weighs heavily against revocation of the cancellation of the Applicant’s visa.

    PRIMARY CONSIDERATION 2: FAMILY VIOLENCE

41. There is no evidence of any kind before the Tribunal that the Applicant has engaged in family violence. This Primary Consideration is not relevant.

    PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

1. The Applicant does not claim that revocation is in the best interests of any minor child in Australia and the evidence does not indicate that there are any minor children whose best interests would be affected by this decision. This Primary Consideration is not relevant.

   PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

   The relevant paragraphs in the Direction

2. In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.

3. Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

   (a)acts of family violence; or

   (b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

   (c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

   (d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

   (e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

   (f)worker exploitation.

4. Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

5. Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:

   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.

6. Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185.

   Analysis – Allocation of Weight to this Primary Consideration 4

7. Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:

   ·the Applicant moved to Australia when he was 3 years old. He is now 22 years old;

   ·the Applicant commenced offending nearly 12 years after moving to Australia when he was still a minor;

   ·between the ages of 15 and 20, he committed some 27 offences including armed robbery and GBH. The GBH (obviously) caused serious physical injuries to the victim;

   ·the Applicant has engaged in crimes of violence, crimes against police officers and armed robbery;

   ·the Applicant has committed very serious offences and he has offended while on bail and while subject to community-based orders;

   ·not only did the Applicant offend while subject to community based orders, he failed to comply with the conditions of those orders or to adequately engage with Community Corrections; 

   ·the Applicant has not only offended while intoxicated, but he has committed some traffic infringements, and an unprosecuted assault on remand, while not intoxicated;

   ·the Applicant’s disrespect for Australian law and the administration of justice is not only evident in his offending and non-compliance with community based orders, but was made very clear when he repeatedly tried to spit on police officers – an uncouth, disgusting gesture of disrespect which is not tolerated in the Australian community;

   ·there is a low to moderate risk that he will re-offend;

   ·the Applicant has held some employment but there is no evidence of him having done any voluntary work; and

   ·if he is removed to New Zealand, it will cause a great degree of emotional hardship to his mother and, to a lesser extent, his grandfather.  

   Conclusion: Primary Consideration 4

8. The Applicant repeatedly breached the trust of the Australian community despite the efforts of the criminal justice system to help him to curb his abuse of alcohol and his offending. Considering all relevant factors, Primary Consideration 4 weighs heavily in favour of non-revocation of the cancellation of the Applicant’s visa.   

   OTHER CONSIDERATIONS

9. It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d.

   (a) International non-refoulement obligations

10. The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence. This Other Consideration is not relevant.  

    (b) Extent of Impediments if Removed

11. As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

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

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

    (c)any social, medical and/or economic support available to that non-citizen in that country.

12. The Applicant is a 22 year old man who is able bodied and does not claim to have any medical conditions. He has unresolved problems with alcohol abuse that require further treatment and he referred to some mental health issues that he thought had contributed to his poor decision making when under the influence of alcohol,[87] without stating what they were. His GP also made a vague reference to psychological issues during the Applicant’s teenage years. However, there is no evidence of him ever having been diagnosed with, or received treatment for, a mental health condition.   

    [87]    Exhibit G1, Section 501 G documents, G2, page 94

13. The Applicant has no memory of his life in New Zealand and he identified as Australian.[88] New Zealand is culturally and linguistically similar to Australia so I am not satisfied that the Applicant would face any substantial language or other cultural barriers if he were to relocate to New Zealand.

    [88]    Exhibit G1, Section 501 G documents, G2, page 91

14. The Applicant did well at school, and he completed 18 months of a boilermaker apprenticeship. He briefly worked for Eco Drilling Solutions before he was incarcerated and his former employer, Ms Bentley, is not only prepared to employ him again, she provided a letter of support in which she spoke positively about him and she gave evidence in the hearing. Presumably, she would be prepared to provide a work reference to assist him to obtain employment in New Zealand. I am satisfied that the Applicant has reasonable employment prospects in New Zealand. As a New Zealand citizen, he will be eligible for government unemployment benefits.  

15. The Applicant’s father lives in New Zealand. Based on evidence given by the Applicant and his mother, I accept that the Applicant’s father has never been involved in his life and that he has rebuffed attempts by the Applicant to contact him.[89] I am satisfied that, if there are any relatives on the Applicant’s father’s side in New Zealand, he could not rely on them for any kind of support. I accept that there are no relatives on the Applicant’s mother’s side in New Zealand.

    [89]    Exhibit G1, Section 501 G documents, G2, pages 91 and 96.

16. Ms Fraser, who provided a letter of support, lives in New Zealand with her son who is known to the Applicant. I asked the Applicant’s mother if Ms Fraser would provide support to the Applicant and she indicated that she has not asked but she did not think Ms Fraser would provide accommodation as she has not got enough room. She said:

    “She's very hard. She's a hard taskmaster. But I'm sure she would still give him support and lead him in the right direction, I know that for a fact, but whether or not that's to offer contacts and that sort of thing, but I'm just sure that she would lay out the path for nothing but good.[90]

    [90]    Transcript, page 55, lines 30 to 41.

17. I accept that, apart from Ms Fraser and her son, the Applicant does not know anyone in New Zealand. I am satisfied that he would not have anyone to stay with upon arrival and the support he could expect from Ms Fraser is limited.

18. The Applicant does not think his mother or grandfather are in a position to visit him if he is returned to New Zealand because of his grandfather’s health and his reliance on his mother as his carer. I will discuss this in more detail below in relation to Other Consideration (d). The Applicant thinks deportation means he might never see his grandfather again.[91] I accept that this is a distinct possibility. The Applicant’s mother indicted that she would visit the Applicant. However, I note that in the current pandemic it is not known whether she would be able to do that.    

    [91]    Transcript, page 29, lines 31 to 35.

19. The Applicant said that being deported would take “a massive toll” on his mental health, as he would be taken away from the only family that he has, being his mother and sick grandfather.[92] He said not being able to attend his grandfather's funeral would affect him immensely. His grandfather was a very big influence on him growing up, and they have always been very close – his grandparents were a constant in his life. He hates to think about never seeing his grandfather again and the effect it would have on his grandfather.[93]

    [92]    Transcript, page 8, lines 10 to 14.

    [93]    Transcript, page 34, lines 10 to 20.

20. The Applicant would also be without his mother with whom he is very close. He is aware that it would devastate her if he were deported. There is not any expert evidence before me as to the likely impact of deportation on the Applicant’s mental health, but I accept that, for the reasons mentioned, removal from Australia would result in emotional hardship. 

21. To some extent, the Applicant’s separation from his mother and grandfather, and his initial social isolation, can be mitigated by keeping in contact with them by phone or electronic means as he currently does. In addition, with respect to the Applicant’s mental health, I am satisfied that that psychological support services would be available to the Applicant in New Zealand in the context of what is generally available to other New Zealand citizens, and that the level of medical care and mental health care services in New Zealand is at or about the same level as that currently available in Australia.

22. I do not consider that any of the challenges I have mentioned would prevent the Applicant from successfully establishing himself and maintaining basic living standards in New Zealand.  

23. This Other Consideration (b) weighs moderately in favour of revocation of the mandatory cancellation.

    (c) Impact on victims

24. This Other Consideration (c) requires a decision-maker to assess the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.

25. There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration (c) is therefore neutral.

    (d)     Links to the Australian Community

26. In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:

    ·the strength, nature, and duration of ties to Australia; and

    ·the impact on Australian business interests.

    The strength, nature, and duration of ties to Australia

27. The Applicant came to Australia at the age of three. He has lived in Australia for 19 of his 22 years. He commenced offending nearly 12 years after arriving in Australia, but while still a minor, and therefore he is entitled to limited weight under paragraph 9.4.1(2)(a) of the Direction.

28. The Applicant completed 18 months of an apprenticeship and he briefly worked for Eco Drilling Solutions prior to being incarcerated. He played rugby league in his local football club for over 13 years[94], although there is no evidence that he contributed to the club beyond playing. I allocate limited weight under paragraph 9.4.1(2)(a) of the Direction.

    [94]    Exhibit G1, Section 501 G documents, G2, page 91.

29. For ten years Mr C was the Applicant’s stepfather and his two daughters were the Applicant’s stepsisters. However, he is no longer in contact with his stepsisters and he described his contact with Mr C as “bits and pieces now”. [95]

    [95]    Transcript, page 5, lines 23 to 27; lines 5 to 38.

30. The Applicant’s mother and grandfather are Australian citizens. The Applicant speaks with his mother and grandfather by telephone every day.[96]

    [96]    Transcript, page 26, lines 40 to 46.

31. The Applicant’s grandfather is in poor health. He became very ill from the COVID vaccine around 10 weeks ago.  He has a heart condition and recently had a blood infection. At one point he was given 24 hours to live because the source of the infection could not be located. It was found and he was able to be treated. He lost some oxygen to the brain while he was unwell. He was in hospital for seven weeks and now the Applicant’s mother is living with him to care for him.[97]

    [97]    Transcript, page 8, lines 17 to 25; page 49, lines 22 to 35.

32. The Applicant said that every time he speaks to his grandfather he sees how much it is hurting him that he might be deported.[98] I accept that it is most unlikely that the Applicant’s grandfather could move to New Zealand or even visit him there and that permanent separation from the Applicant will cause him emotional hardship.

    [98]    Transcript, page 34, lines 10 to 20.

33. The Applicant’s mother said her life had been turned upside down and put on hold since the Applicant was incarcerated, and she needs him to come home so her life can return to normal.[99] If the Applicant is deported, she will be devastated. She would not expect her father to move to New Zealand and she does not want to have to choose between him and the Applicant.[100] By the time of the hearing the Applicant’s grandfather’s health had deteriorated and the Applicant’s mother was adamant that she could not move to New Zealand given her father’s current situation.[101]

    [99]    Transcript, page 37, lines 28 to 31.

    [100] Exhibit G1, Section 501 G documents, G2, page 98.

    [101] Transcript, page 38, lines 5 to 15.

34. The Applicant’s mother has a sibling, but he lives in Melbourne and does not have any contact with her or her father. He would not help to look after her father.[102] Nor would she put her father into an aged care facility as she promised him she would not do that.[103] The Applicant said his mother suffers from depression and anxiety at times and with his grandfather being sick and not being able to move, he would not ask her to move countries for him as it would really take a toll on her mental health.[104] I am satisfied that the Applicant’s mother would not join the Applicant in New Zealand while her father remains alive.

    [102] Transcript, page 53, lines 15 to 16; lines 45 to 47.

    [103] Transcript, page 54, lines 4 to 5.

    [104] Transcript, page 8, lines 7 to 10.

35. There is a medical certificate before me dated 1 March 2021 that appears to be from a general practitioner and it says “I’ve been asked by [the Applicant’s mother] to confirm she is suffering from severe anxiety symptoms because of the threat of her son’s imminent forced deportation from Australia.”[105] This does not appear to be a diagnosis but rather a doctor repeating what a patient told him. I give it no weight. I do, however, accept that the Applicant’s mother is very worried about the prospect of the Applicant being deported and she will be devastated if that comes to pass.

    [105] Exhibit G1, Section 501 G documents, G2, page 90.

36. The letters of support that are before me indicate that the Applicant has some positive social relationships in the community. He has also referred to having friends in the local community. I accept that he has substantial social ties to the Australian community.

37. The Applicant’s social and familial links, and the impact on his mother and grandfather of his removal from Australia, weigh heavily in his favour under paragraph 9.4.1(2)(b) of the Direction. 

    Impact on Australian business interests

38. The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. I do not allocate weight under paragraph 9.4.2 of the Direction. 

    Conclusion: Other Consideration (d)

39. Overall, I am satisfied that the Applicant’s links to the Australian community weighs heavily in favour of revocation.

    CONCLUSION

40. I am now required to weigh all of the Considerations in accordance with the Direction.  

41. The Applicant’s removal will greatly affect his mother, his grandfather and him. However, given the danger he poses to members of the Australian community and the matters relevant to Primary Consideration 4, application of the Direction favours non-revocation. That is, to the extent that Other Considerations (b) and (d) weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh Primary Considerations 1 and 4.

42. Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.

    DECISION

43. The decision under review is affirmed.

I certify that the preceding 150 (one hundred and fifty) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

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

Associate

Dated: 26 August 2021

Date of hearing:

3 and 4 August 2021

Solicitor for the Applicant:

Mr Joel McComber

Sentry Law

Solicitor for the Respondent

Ms Hannah Anderson

Clayton Utz

ANNEXURE 1 – EXHIBIT LIST

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G3 paged 1 to 220)	R	-	17 June 2021
A1	Applicant's Statement of Facts, Issues and Contentions (paged 1 to 13) including attachment: ·     Certificate of Completion drug.ARM ‘Explore Program (MISI 48 hours)’ dated 7 September 2020	A	8 July 2021	8 July 2021
A2	Letter of instruction to Dr Jacqueline Yoxall	A	4 July 2021	29 July 2021
A3	Psychological Report of Dr Jacqueline Yoxall	A	28 July 2021	29 July 2021
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 20)	R	23 July 2021	23 July 2021
R2	Respondent’s Tender Bundle (SM1 to SM2, paged 1 to 153)	R	-	23 July 2021