HMLR and Minister for Home Affairs (Migration)

[2019] AATA 398

HMLR and Minister for Home Affairs (Migration) [2019] AATA 398 (14 March 2019)

Division:GENERAL DIVISION

File Number(s):      2018/7715

Re:HMLR  

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:The Hon. Dennis Cowdroy OAM QC, Deputy President

Date:14 March 2019

Place:Sydney

The decision of the Respondent dated 12 December 2018, to refuse to revoke the Applicant’s visa cancellation decision made under section 501(3A) of the Migration Act 1958 (Cth), is affirmed

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The Hon. Dennis Cowdroy OAM QC, Deputy President

CATCHWORDS

MIGRATION – mandatory visa cancellation – TY Subclass 444 Special Category (Temporary) Visa – New Zealand – extensive criminal record – juvenile offending – repeated violent offending – protection of Australian community – best interests of minor children – expectations of Australian community – further offences committed following notification of mandatory cancellation – strength, nature and duration of ties – extent of impediments if removed – decision affirmed

LEGISLATION

Migration Act 1958 (Cth) ss 499, 501, 50CA

CASES

DND v Minister for Home Affairs (Migration) [2018] AATA 2716

Le and Minister for Home Affairs [2018] AATA 4126

Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141; (2014) FCR 562

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

Minister for Immigration, Citizenship and Multicultural Affairs, Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

The Hon. Dennis Cowdroy OAM QC, Deputy President

14 March 2019

1. On 14 December 2017 a delegate of the Minister determined to cancel the TY Subclass 444 Special Category (Temporary) Visa (“the Visa”) held by the applicant under section 501(3A) of the Migration Act 1958 (Cth) (“the Act”). Such cancellation resulted from the finding of the delegate that the applicant did not pass the character test because of the operation of section 501(6)(a); namely that the applicant had a substantial criminal record on the basis of section 501(7)(c) and because the applicant was then serving a sentence of full-time imprisonment for a criminal conviction.

   FACTS

2. The applicant was born in New Zealand in August 1996. He came to Australia when he was two years of age, accompanied by his mother and two brothers. The applicant’s Visa was issued on 21 August 1998. His grandmother and his elder brother, then aged 14 years, preceded his arrival in Australia.

3. The applicant attended primary school and high school to year 10. He left school and was not allowed to return due to criminal convictions incurred as a juvenile. At that stage he had been living with his mother and his younger brother. More recently, the applicant has resided for a short period with a partner and claims to be the father of a daughter of that association. The former partner denies that the applicant is the father of such child.

4. The applicant has engaged in acts involving violence, leading to convictions from an early age. A list of the convictions, up to 26 April 2018, is set out hereunder:

Court Date	Offence convicted	Sentence
Admitted to custody 26 April 2018
April 2018	Larceny	Imprisonment 1 month
	Possess prohibited drug	Imprisonment 1 month
	Travel with valid ticket	Conviction, no penalty
Admitted to custody 5 October 2017 to 8 February 2018 – 4 months
July 2017	Enter enclosed land without lawful excuse	Fine $500
May 2017	Steal from person	Imprisonment 12 months (non-parole period 6 months and 11 days)
	Dishonestly obtain property by deception	Imprisonment 1 month
Admitted to custody 15 November 2016 to 28 June 2017 – 7 months
June 2016	Affray	Intensive corrections order 16 months
May 2016	Give a false name	Fine $200
Admitted to custody 27 July 2015 to 12 August 2015
July 2015	Demand property in company with menaces, with intent to steal	Imprisonment 16 months (non-parole period 5 months; release subject to drug, alcohol and anger management counselling)
Admitted to custody 27 January 2015 to 16 July 2015 – 5 months
June 2014	Robbery in company	Control order  6 months
	Aggravated assault with intent to rob	Control order 18 months (non- parole period 8 months)
October 2013	Larceny	Probation  6 months
October 2013	Affray	Control order 2 months, suspended on entry into 6 months good behaviour bond
Admitted to juvenile justice centre 1 May 2013 to 28 August 2013 – 3 months
February 2013	Assault with intent to rob	Control order 1 month
	Common assault	Control order 1 month
	Aggravated break and enter, commit serious indictable offence	Probation 12 months
	Assault with intent to rob	Control order 2 months
	Robbery in company	Control order 2 months
	Assault with intent to rob	Control order 7 months
	Goods in personal custody suspected of being stolen	Good behaviour bond 6 months
July 2012	Common assault Bond call up	Probation 12 months
August 2011	Assault with intent to rob	Good behaviour bond 12 months
Admitted to juvenile justice centre 11 January 2013 to 14 March 2013 – 2 months
September 2010	Common assault	12 month good behaviour bond
July 2010	Common assault	Dismissed with caution
	Larceny	Dismissed with caution

1. During the hearing of this application, the Tribunal was informed that the applicant had been convicted of an assault in September 2018. For this offence he received a sentence of imprisonment of six months. The applicant is currently serving such sentence.

2. The applicant clearly has an extensive criminal record. It was on the basis of such record that the Department of Home Affairs (“the Department”) mandatorily cancelled the applicant’s Visa pursuant to section 501(3A) of the Act on 14 December 2017 because the applicant, in view of his substantial criminal record, did not pass the character test as specified in section 501(6)(a) of the Act. The applicant received a sentence of imprisonment of 16 months in July 2015 (with a non-parole period of five months). On 24 May 2017 he received a sentence of imprisonment of 12 months (with a non-parole period of six months and 11 days).

3. On 18 January 2018 the applicant made representations to the Department in response to the cancellation decision. On 12 December 2018 the delegate, as stated above, determined not to revoke the original decision under section 501CA(4) of the Act. The applicant applied to the Tribunal for review of the decision on 27 December 2018.

   THE CHARACTER TEST

4. Section 501(2) empowers the Minister to cancel a visa which had been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test.

5. The character test is set out in section 501(6) of the Act and includes matters relevant to the current application. Namely, a person has a substantial criminal record (as defined by subsection 7 thereof). Section 501(7)(c) provides that a person has a “substantial criminal record” if:

   “The person has been sentenced to a term of imprisonment of 12 months or more”.

6. The applicant’s criminal record, as set out in the National Police Certificate, shows that the applicant has had a propensity for violence and violent criminal offending. By virtue of the offences, the applicant does not pass the character test as prescribed in section 506(1) of the Act. Accordingly the Tribunal now addresses the considerations referred to in Direction 79.

   DIRECTION  NO. 79

7. Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (“the Direction”) was made pursuant to section 499 of the Act, and is intended to provide guidance to decision-makers in assessing the exercise of powers under section 501 of the Act. As provided by clause 6.2, the first consideration under the heading of “General Guidance” is the protection of the Australian community from harm “as a result of criminal activity or other serious conduct by non-citizens”.

8. Under the heading “Principles”, it is stated in clause 6.3(1) that Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. It continues:

   “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.”

9. The Principles confirm that a non-citizen who has committed a serious crime can generally be expected to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia and that, in some circumstances, criminal offending or other conduct, and “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.”

10. The Principles also state that Australia has a low tolerance of any “criminal or other serious conduct” and 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.”

11. It is mandatory that decision-makers take into account the Primary and Other Considerations relevant to the individual case. The Primary Considerations identify the protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and the expectations of the Australian community: see Part C of the Direction. Pursuant to clause 13.1.1, the nature and seriousness of the conduct is to be considered, including sentences imposed by the courts; the frequency of the non-citizen’s offending; whether there is any trend of increasing seriousness; and the cumulative effect of repeated offending.

12. The Primary Considerations in Part C of the Direction reiterate that there is to be a low tolerance for non-citizens who have previously engaged in criminal or other serious conduct and the decision-maker is required to give consideration to the nature and seriousness of the non-citizen’s conduct to date; and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct: see clause 13.1(2)(a) and (b). In assessing the nature and seriousness of the conduct, the Tribunal must consider, inter alia, “the cumulative effect of repeated offending”: see clause 13.1.1(1)(f).

13. Clause 13.3 makes provision for consideration of the expectations of the Australian community. Clause 13.3(1) provides, inter alia:

    “The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person.”

14. The Direction does not dictate the manner in which the discretion is to be exercised, but instead creates a framework within which the discretion vested in the decision-maker is to be lawfully exercised: with regard to the predecessor Direction 65 see Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141; (2014) FCR 562 at [80] (Perry J); and see also DND v Minister for Home Affairs (Migration) [2018] AATA 2716 at [82].

15. It is also established the Australian community “expects” non-revocation of a decision to cancel a non-citizen’s visa where the subject person has been convicted of serious crimes: see YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76] (Mortimer J).

16. Part C relates specifically to the mandatory cancellation of a non-citizen’s visa.  In particular, clause 13.1.1 refers to the very serious view that is taken of non-citizens who commit violent and/or sexual crimes.  Specifically, where there is repeated offending, the cumulative effect must be taken into consideration: see clause 13.1.1(1)(f).  Sentences of imprisonment imposed by courts for a crime or crimes against women or children are also to be considered in viewing the seriousness of the conduct: see clause 13.1.1(1)(b) and (d).

    Protection of the Australian community: clause 13.

17. The applicant’s offending commenced in 2010. He was then 14 years of age. He was convicted in the Campbelltown Children’s Court on two occasions in July 2010 and September 2010 for common assault. In Parramatta Children’s Court in August 2011 he was convicted of assault with intent to rob and further convictions were recorded in October 2011 and again in July 2012 for the same kind of offences. In February 2013, when he was aged almost 17 years, he was convicted of robbery and assault with intent to rob and having in his custody goods suspected of being stolen. On the same day he was convicted of assault with intent to rob, common assault and other offences. Other convictions were for affray (October 2013; larceny (October 2013); and robbery in company and aggravated assault with intent to rob (June 2014).

18. As a young adult, his offending continued as set out in the police record. In July 2015 the applicant was sentenced to a term of 16 months imprisonment commencing on 27 January 2015 with a non-parole period of 5 months in respect of the charge of demand property in company with menaces and with intent to steal. The applicant was part of a group, described by the sentencing Magistrate as “a bunch of thugs” who confronted a stranger with intent to steal his wallet.

19. In May 2017 at Campbelltown Local Court, a sentence of imprisonment of 12 months was imposed because the applicant, according to the Magistrate’s decision, took hold of a woman’s handbag, causing her to fall to the ground. It was only as a result of assistance from passers-by that pursued and brought down the applicant that he was apprehended. The woman was unknown to the applicant.

20. In April 2018 the applicant was convicted of larceny and possessing a prohibited drug, for which sentences of imprisonment were imposed.

21. In September 2018 the applicant, whilst in prison, was convicted of assaulting another prisoner and was sentenced to six months imprisonment for such assault.

22. The applicant offered no real explanation for his violent offending. However, the applicant asserts that he used marijuana as a teenager and then from 2014 to 2017 was a user of methamphetamine. Equipment for the use of drugs, namely a straw, was found on his person whilst he was incarcerated. The applicant states that he has undertaken a drug and alcohol program, three to four years ago.

23. There is no doubt that, on the basis of the above criminal history, the Australian community will be at risk if the applicant remains in Australia.

    Best interests of minor children: clause 13.2

24. The Direction requires decision-makers to have regard to the question of whether revocation of the cancellation of the Visa is in the best interests of any child: see clause 13.2(1); or where there is more than one child, the best interest of each child is to be given individual consideration.

25. The applicant stated that he had a daughter born on in 2017 who resided with him and who would reside with him on his release. However, more recent evidence indicates that the mother of the child denies paternity by the applicant. No information has been provided concerning the child, nor has the child’s mother provided any material in support of the applicant’s claim that he is the father of the child. In view of this evidence, the Tribunal cannot be satisfied that the applicant is the father of the child, nor that he stands in a parental relationship with the child. It is also impossible for the Tribunal to determine whether revocation of the cancellation decision would be in the best interests of the child. The Tribunal notes extensive periods during which the applicant has been incarcerated and the absence of any evidence suggesting that, during this period, he received visitation from the child or that he takes any interest in the child.

26. The applicant claims to have approximately six nieces and nephews who are under the age of 18 with whom he has a close connection. However, no details have been provided of such children, nor of the extent of any contact with them. In the absence of such evidence, it is not possible for the Tribunal to be satisfied that the best interests of these children would be served by revocation of the mandatory cancellation.

    Expectations of the Australian community:  clause 13.3

27. The respondent claimed that the applicant’s conduct did not meet Australian community expectations. The applicant responded by claiming that he is deeply sorry for his conduct and asked for a second chance. The applicant claimed that he had changed and had rehabilitated from his life of crime.

28. In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, Mortimer J at [76], in reference to the equivalent provisions to clause 13.3 of Direction 65 said:

    “In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian communities “expectations” are defined only in one particular way: namely: that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature that is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister  about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the direction that.”

29. It has also been held in Le and Minister for Home Affairs [2018] AATA 4126 at [141], that the Tribunal “must have due regard to the statement of the Government’s view as to the expectations of the Australian community” in the equivalent provisions in Direction 65.

30. In addition to the police record, material has been brought before the Tribunal which demonstrates that the applicant has been involved in numerous incidents at Villawood Detention Centre, from which it may be inferred that the violent conduct of the applicant is continuing. An Incident Report dated 17 March 2018 record that the applicant was verbally abusive and aggressive towards staff; on 3 September 2018 another detainee recorded being assaulted but he did not wish to name the person who committed the assault but the applicant was cautioned. On 5 September 2018 there is another record of aggressive behaviour. On 14 September 2018 a complaint was made by another detainee that the applicant had punched him when the applicant refused to return a mobile phone loaned to him.

31. The expectation of the Australian community would require the applicant’s Visa to be cancelled in view of his criminal history.

    Other considerations: clause 14

    Strength, nature and duration of ties: clause 14.2

32. The applicant has lived in Australia since he was aged two. His mother and three adult brothers and six nieces and nephews reside in Australia and he has no family residing in New Zealand. He has acquaintances who were inmates of detention who now reside in New Zealand and the applicant testified that he keeps in contact with them through Facebook.

33. The applicant claimed that his family will be heartbroken if he returns to New Zealand. However, letters have only been provided in support of his application from a cousin and from one brother. The applicant states that all his family were, at the date of the hearing, attending a funeral of a family member in Samoa. The applicant stated that he last saw his mother about six months ago but keeps in contact with her by telephone.

1. A letter from a supporter of the applicant testifies as to his involvement and participation in rugby league in Australia.

2. The Tribunal accepts that there would be an emotional break if the applicant were returned to New Zealand. However, he has been in immigration detention or imprisoned for 2 ½ years.

3. The applicant has been incarcerated for several periods arising out of his criminal sentences. The most significant factor is the length of time that the applicant has resided in Australia and the fact that he came to Australia at a very young age. He has never left Australia since coming here when he was two years of age. These factors weigh in favour of the cancellation decision being revoked.

   Extent of impediments if removed: clause 14.5

4. The applicant stated that he knows no one in New Zealand and would be homeless. The respondent accepts that the applicant has limited education and job qualifications. The applicant has worked in a supermarket for a short period, and also as a scaffolder whilst in Australia. He has never qualified for any trade certificate.

5. The applicant is in good health and has no known medical or psychological conditions. Accordingly there are no reasons which would prevent his removal from Australia so far as the Tribunal is aware.

   FINDING

6. The Tribunal considers that the strongest claim which the applicant can advance is the length of time that he has been in Australia, and having come to this country at two years of age. Against this must be considered the fact that the applicant was notified of the intended cancellation of his Visa by letter dated 14 December 2017.

7. The applicant, in response to the notification of cancellation which he received on 23 December 2017 pleaded with the respondent that he be allowed to remain in Australia stating that he would “never offend”.

8. Despite such notification, and the applicant’s statement of non-reoffending, the records show that the applicant was convicted of further offences in April 2018 and September 2018.

9. The long history of offending demonstrates that there exists the possibility that the applicant will reoffend. If so, the Australian public would be at risk, as has been shown in the past conduct of the applicant. The applicant was prepared to attack a vulnerable woman to steal a handbag, and a defenceless stranger, in the company of other “thugs” to steal his wallet.

10. There is no evidence that the applicant has been rehabilitated. For the reasons outlined above, the Tribunal finds that the factors in support of revocation presented by the applicant do not singularly or cumulatively outweigh the primary considerations contained in the Direction. The factors weigh against the exercise of discretion under section 501CA(4) of the Act to revoke the applicant’s mandatory Visa cancellation. That is, there is no reason demonstrated why the cancellation should be set aside.

11. For these reasons the Tribunal considers that the decision under review is the correct and preferable decision. The mandatory Visa cancellation decision should not be revoked.

I certify that the preceding 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy OAM QC, Deputy President

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Associate

Dated: 14 March 2019

Date(s) of hearing:	6 March 2019
Applicant:	In person
Solicitors for the Respondent:	J Hutton, Australian Government Solicitor