JKPM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 365
•25 February 2020
JKPM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 365 (25 February 2020)
Division:GENERAL DIVISION
File Number: 2019/8049
Re:JKPM
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION5
Tribunal:Senior Member Theodore Tavoularis
Date:25 February 2020
Place:Sydney
The decision under review is affirmed.
........................[sgd]................................................
Senior Member Theodore Tavoularis
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. 79 – decision under review affirmed
Legislation
Migration Act 1958 (Cth)Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCAFC 185
FYBR v Minister for Home Affairs [2019] FCA 500
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336Secondary Materials
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member Theodore Tavoularis
INTRODUCTION AND BACKGROUND
1. JKPM (“the Applicant”) is a 24 year old citizen of New Zealand.[1] Movement records indicate that the Applicant first arrived in Australia on 27 March 1999 and has left Australia on numerous occasions with his most recent arrival date being 14 March 2010.[2] He resided in Australia on a Class TY Subclass 444 Special Category (Temporary) Visa (“the Visa”).[3]
[1] Exhibit R1, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), page 1, paragraph [4].
[2] Exhibit A4, Applicant’s Movement Record.
[3] Exhibit R3, s 501 G-Documents, G2, page 9.
2. The Applicant has, in terms of the number of offences he has committed, a relatively short offending history. However, that history (in terms of appearances in courts for sentencing) spans the period July 2011 to March 2018. His offending commenced in July 2011 as a child offender aged 16. For that offending as a juvenile, he was dealt with at the Parramatta Children’s Court (in July 2011) and the Liverpool Local Court (August 2011). The juvenile offending involved the commission of a series of motor vehicle offences.[4]
[4] Exhibit R2, Respondent’s Bundle of Material, R3, page 76.
3. Then, in October 2016, he committed the offence of aggravated robbery. He pleaded guilty to that charge and came before the Campbelltown District Court for sentencing in March 2018. He was sentenced to a term of imprisonment of 3 years, commencing in March 2018 and concluding in March 2021.[5] The sentencing court imposed a non-parole period of 18 months commencing in March 2018 and concluding in September 2019.
[5] Exhibit R2, Respondent’s Bundle of Material, R3, page 77.
4. At the conclusion of the non-parole period and upon the Applicant’s release from criminal custody, he was taken into immigration detention.
5. While serving his term of imprisonment (i.e., criminal custody), a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister” or “the Respondent”), pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“the Act”), decided on 28 August 2018 to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test.[6]
[6] Exhibit R3, s 501 G-Documents, G7, page 46.
6. On 2 October 2018, the Minister’s Department received a letter from the Applicant requesting revocation of the decision to mandatorily cancel his visa.[7] The delegate of the Minister decided on 29 November 2019, pursuant to s 501CA(4) of the Act not to revoke the cancellation of the subject visa.[8]
[7] Ibid, G9, pages 57–58.
[8] Ibid, G2, pages 9–29.
7. The Applicant lodged an application with this Tribunal on 6 December 2019 seeking a review of the abovementioned decision dated 29 November 2019 not to revoke the cancellation of his visa.[9] The Tr8ibunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.[10]
[9] Ibid, G1, pages 1–7.
[10] For the Tribunal to have jurisdiction to review the decision, the Applicant must also have lodged the application for review with the Tribunal within nine days after the day on which he or she received notification of the decision – see s 500(6B) of the Act.
8. The hearing of the instant application proceeded on 10 February 2020 and received oral evidence from the Applicant as well as from his fiancée, his mother, his cousin and his uncle. The Tribunal also received written evidence. This written evidence was categorised into an exhibit list, a true and correct copy of which is attached hereto and marked “A”.
ISSUES
9. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
10. There is no question 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. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[11]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[12]
[11] [2018] FCAFC 151.
[12] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
11. There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
12. If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[13] I will address each of these grounds in turn.
[13] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
13. 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”.
14. In March 2018, the Applicant was convicted at the Campbelltown District Court, New South Wales (“NSW”), on one count of aggravated robbery. He was sentenced to a term of imprisonment for three years commencing in March 2018 and concluding in March 2021.[14] The sentencing court imposed a non-parole period of 18 months running from March 2018 and concluding in September 2019.
[14] Exhibit R3, s 501 G-Documents, G3, pages 30–31.
15. As mentioned, the Applicant’s criminal history is relatively short in terms of the number of offences committed but relatively long in terms of its span of time. The totality of the custodial time of his sentencing is three years. From the date of his final arrival in Australia (14 March 2010)[15] until his removal from the Australian community in March 2018 comprises a period of 8 years. The three years of custodial time he received for the aggravated robbery offence in March 2018 comprises approximately 38% of his time in the general community of this country.
[15] Exhibit R3, s 501 G-Documents, G6, page 44.
16. In his written material, the Applicant did not deny his offending, and said: “…I sincerely regret my actions leading to my offence. I understand that I have failed the character test in accordance with the determination stated within the act….”[16] The Applicant added:
“…
Having read over the act, I also understand that the systematic filtering of individuals who have been sentenced to a term of 12 months imprisonment and extending right up until the death penalty, is no test of character at all.
…”[17]
[16] Ibid, G1, page 4.
[17] Ibid.
17. At the hearing, the Applicant did not appear to cavil with the contention that he did not pass the character test due to the application of s 501(7)(c) of the Act and its definition of “a substantial criminal record”.[18]
[18] See Transcript, 10 February 2020, page 10, lines 37–46.
18. The custodial sentence imposed on the Applicant involved his early release on parole after serving a custodial period of 18 months. I note that 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.[19]
[19] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416; See also s 501(7A) of the Act which relevantly provides: “(7A) Concurrent sentences For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms. Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.”
19. I am consequently satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
20. 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. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 79”) has application.[20] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:[21]
(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
[20] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
[21] The Direction, sub-paragraph 7(1)(b).
21. The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian community.
22. Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
23.
The Other Considerations which must be taken into account are provided in a
non-exhaustive list in paragraph 14 of the Direction. These considerations are:
a) International non-refoulement obligations;
b) Strength, nature and duration of ties;
c) Impact on Australian business interests;
d) Impact on victims;
e) Extent of impediments if removed.
24. I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[22]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
[22] [2018] FCA 594 at [23].
25. Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are 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;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
26. I will now turn to addressing these considerations.
Primary Consideration A – Protection of the Australian Community
27. In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. Further, this paragraph stipulates an expectation that those non-citizens 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.
28. In determining whether the mandatory cancellation of an Applicant’s visa serves to protect the Australian community, this paragraph of the Direction points out to decision-makers that mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principle that: (a) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country; and (b) that those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
29. In determining the weight applicable to this Primary Consideration A, paragraph 13.1(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.
30. In making these assessments, it is necessary to have regard to the Applicant’s criminal history. The totality of the Applicant’s offending and other serious conduct can be gleaned from the following documents[23] now before the Tribunal:
[23] The following list includes documents directly relating to the Applicant’s offending as well as ancillary documents.
(a)his criminal history which appears in a document entitled “Check Results Report” from the Criminal Intelligence Commission;[24]
[24] Exhibit R3, s 501 G-Documents, G3, pages 30–31.
(b)the Respondent’s Bundle of Material (comprising pages numbered 1–175)[25] which contains:
[25] Exhibit R2, Respondent’s Bundle of Material.
(i)the Applicant’s pre-sentencing report dated 11 December 2017;
(ii)summary of ‘events / incidents’ produced by NSW Police dated 7 January 2020;
(iii)criminal history entitled “Criminal History – Bail Report” produced by NSW Police dated 8 January 2020;
(iv)inmate misconduct reports relating to the Applicant’s time in criminal custody (various dates in 2018 and 2019);
(v)immigration detention documents (various dates);
(vi)documents from material produced by NSW corrective services (various dates);
(vii)movement records for the Applicant, his mother, sister and fiancée;
(c)sentencing remarks of Her Honour Judge English from when the Applicant was sentenced for aggravated robbery.[26]
[26] Exhibit R3, s 501 G-Documents, G4, pages 32–41.
31. As mentioned earlier, the material discloses that between July 2011 and March 2018 the Applicant came before the courts for sentencing on three occasions and that he has convictions recorded for three offences capable of characterisation as (1) offences relating to the operation of a motor vehicle; and (2) offences against the person and property of another.
32. Further, the Applicant’s conduct while in criminal custody has resulted in three ‘misconduct reports’. Those instances of misconduct relate to:
(i)two instances of “Have possession of tobacco, tobacco-related accessory, e-cigarette or e-cigarette accessory within a correctional centre”;[27] and
(ii)one instance of “disobey direction”.[28]
[27] Exhibit R2, Respondent’s Bundle of Material, see pages 81–92 and 93–104.
[28] Ibid, see page 105–119.
The Nature and Seriousness of the Applicant’s Conduct to Date
33. The Applicant gave oral evidence at the hearing. He was taken to specific instances and details of his offending. The general tenor of his evidence was to either immediately or eventually (1) concede commission of the offence or offences put to him, and (2) the relative level of seriousness of each offence or offending episode. Much of his evidence was characterised by either a vagueness or an inability to recall certain aspects or components of an offence or offending episode.
34. I agree with the Respondent’s twin contentions that, viewed via a retrospective lens: (1) the Applicant’s offending is demonstrative of “… a pattern of increasingly serious behaviour …”;[29] and (2) that the nature and circumstances of the conviction for aggravated robbery “… must be viewed very seriously …”[30] These findings are, to my mind, readily capable of being made upon application of the relevant factors appearing in Paragraph 13.1.1 of the Direction.
[29] Transcript, page 52, lines 44–45.
[30] Ibid, line 38.
Summary of the Applicant’s Criminal History and Other Conduct
35. The Respondent in its material,[31] has helpfully summarised the Applicant’s offending history from the dual-perspectives of (1) the circumstances of each offence / offending episode, and (2) the level of seriousness attributable to each such offence / offending episode.
[31] See Exhibit R1, Respondent’s SFIC, pages 2–5.
Aggravated Robbery
36. The subject incident giving rise to the Applicant’s conviction for aggravated robbery arose from events that took place shortly after midnight in October 2016. The circumstances of the offending are fulsomely recounted in the sentencing remarks of Her Honour, Judge English in the NSW District Court. The obvious motivation for the attack on the unsuspecting victim involved the unlawful deprivation of the victim’s money.
37. The factual circumstances of the offending commenced at the Richard’s on the Park Hotel at Canley Vale. The victim was in possession of $200 comprising winnings from playing poker machines at the subject hotel. The victim was waiting to be collected by a taxi outside the hotel facility. The Applicant and a companion then took it upon themselves to attack the victim in order to deprive him of the $200. The attack involved the Applicant and his companion approaching the victim and arbitrarily dragging the victim to the ground. The Applicant and his companion then punched and kicked the victim in the head.
38. The victim purported to escape the attack but the Applicant and his companion gave chase. During the chase, the victim received further punches to his head and was pushed to the ground. The subject attack on the victim continued for a couple of minutes and it involved the punching, kicking and kneeing of the victim. The administration of this violence resulted in the victim suffering numerous injuries. The Applicant was forcibly deprived of his personal effects including a mobile telephone, house and other keys and cigarettes.
39. Detection of the Applicant for the subject offence occurred as a result of him purporting to sell the victim’s mobile telephone at a local pawn shop approximately nine days after the robbery. The Applicant was to receive $400 for the sale of the victim’s mobile telephone. The Applicant was eventually identified as the offender consequent upon his production of his driver’s license to the person serving him in the pawn shop.
40. The Applicant’s demeanour towards investigating police officers was similar to his demeanour while giving oral evidence at the hearing. He initially denied any knowledge of the circumstances of the aggravated robbery and sought to suggest that he either did not remember or did not recall either the attack on the victim or the purported sale of the victim’s mobile telephone to the pawn shop.
41. In her sentencing remarks, Judge English noted the Applicant was “… a most unimpressive witness. …”[32]Consistent with the Applicant’s evidence at the hearing, Judge English also noted:
“…
Despite allegedly not remembering what took place on the night on the one hand, on the other hand, he says he was provoked by the victim during a verbal altercation.
He denied taking the victim’s possessions and he has demonstrated limited victim empathy during the interview with Community Corrections. He started that he had come into possession of the victim’s phone the following day.
…”[33]
[32] Exhibit R3, s 501 G-Documents, G4, page 35.
[33] Ibid, G4, pages 35–36.
42. The Respondent has, to my mind, accurately, identified contributing factors to the Applicant’s offending that can be gleaned from the sentencing remarks of Judge English. First, the Applicant does appear to have unresolved issues with anger-management and those issues become exacerbated when he is affected by ingested substances, be they illicit drugs or alcohol. As noted by Judge English:
“…
He denies having a problem with anger. His mother disagrees. She says of her son that he is quickly angered, particularly if intoxicated, and in the past has been violent towards the family and to property. He disclosed to the psychologist drug and gambling addictions which were not disclosed to the Community Corrections Service.”[34]
[34] Ibid, page 36.
43. Second, it seems clear from the evidence that the Applicant’s issues with addictions to illicit drugs, particularly cannabis, have been one of the causative factors behind his offending. As also noted by Judge English in her sentencing remarks:
“…
He says he was introduced to cannabis whilst still at school and he consumed the drug in order to fit in.
…
He says he no longer uses cannabis. One of the motivating factors for doing so was the drug testing regime at his workplace.
…”[35]
[35] Ibid.
44. Third, it also seems from the evidence that Applicant’s gambling habit has been a causative factor behind his offending. Judge English noted these things about the Applicant’s gambling:
“…
His gambling habit has also ceased due to the cost. At its peak, he says, he was gambling up to $1,000 a week. Like consuming alcohol, he says he found it difficult to resist. He says he concealed his gambling from his family and girlfriend.
…”[36]
[36] Ibid, pages 36–37.
45. Fourth, the Applicant has sought to attribute his offending to his association with negative peers who abused illicit drugs and alcohol and consequently engaged in criminal activity. The Applicant told Judge English (as he told this Tribunal in his oral evidence) that he had now disassociated himself from those negative peers:
“…
He was associating with negative peers whose drug and alcohol abuse was the norm. His peers also engaged in criminal activity which was met with approval by the group. He says he has disassociated himself from that peer group since his arrest.
...”[37]
[37] Ibid, page 36.
46. Her Honour Judge English also made the following comments about the Applicant’s offending from the viewpoint of (1) any insight he may have into the nature of that offending; (2) its effect on victims; and (3) the level of responsibility he has accepted for this offending.
·“… he has demonstrated limited victim empathy during the interview with Community Corrections….”;[38]
·“I find that this offender has sought to minimise his role in this most serious of criminal offences, what can best be described as a serious breach of the criminal law. A violent assault upon an innocent victim for the purpose of robbing him. When he attempted to get up and flee, he was pursued, and the assault upon him continued.”;[39]
·“… The violence inflicted upon the victim is the factor of aggravation relied upon in the charge. The fact that they were in company is an additional factor of aggravation.”;[40]
·“… It is high time he took responsibility for his own actions. He told the psychologist that it was his friend who saw the victim leave the hotel premises and took it outside and it happened from there. He stated he decided to “help his mate”. “I didn’t have to jump in, but I just did. I wanted to help my friend.” He admitted he was “trying to show off” to his friend, who thought it was “cool” to commit offences.”[41]
[38] Ibid.
[39] Ibid, page 38.
[40] Ibid.
[41] Ibid, page 37.
47. In terms of the Applicant’s claims about rehabilitation and likelihood of reoffending, Her Honour noted:
“…
It is now nearly 18 months since he committed this offence. He has not reoffended. However, it is only recently that he has taken steps to address issues of drug and alcohol abuse and a gambling addiction, principally because those habits cost too much or impacted upon his level of fitness to play football. My concern is that if he is no longer playing football, he might well relapse, and of course if he relapses, he will reoffend. It is a concern that he is unable to identify any negative consequences of his addictions other than the cost. In those circumstances, I find his prospects at this stage for rehabilitation are guarded.
The likelihood of him not reoffending will be largely dependent upon him remaining drug- and alcohol-free for the right reasons, just because those habits are too expensive.”[42]
[My underlining]
[42] Ibid, pages 39–40.
48. In terms of any assessed psychological state of the Applicant, Judge English noted, on the material before her that:
“He said to the psychologist that he felt sorry for what had happened and that the victim would have been hurt as a result. The psychologist also considered that the offender had limited insight and difficulty in expressing his remorse. The psychologists [sic] records the offender as saying, “I would just say it’s wrong. It’s not right to rob people. The victim would have worked hard to buy his phone”. Following psychometric testing, the psychologist is of the opinion that the offender is someone who is socially awkward, who desires close friendship with others yet fears rejection and humiliation. Cannabis and alcohol were maladaptive ways of coping with his feelings. In her opinion, his attitudes and values might have been shaped by his negative peers rather than his positive upbringing.
She assesses him as someone with low verbal cognitive ability. Cognitive behavioural therapy is recommended together with drug and alcohol counselling.”[43]
[43] Ibid, page 37.
49. Finally, with reference to a general impression or summary of the Applicant’s offending, Judge English said these things:
“This is a typical example of a young man attempting to impress his mates who thought it was cool to commit a crime, sometimes known as mob mentality, just being one of the boys, to the detriment of an innocent victim who was assaulted and robbed. An immature young man with limited insight, matters I have taken into account in his favour. Fortunately, the victim’s injuries were not too serious. All too often, these types of offences result in very serious injury to the victim or even the loss of life. This offender is yet another example of the very type of person who needs to be deterred from behaving in this fashion, and a message must be send [sic] to other like-minded young men that cowardly violence will not be tolerated.
Having given the matter careful consideration, and the submissions, I find that only a sentence of full-time custody will suffice.”[44]
[My underlining]
[44] Ibid, page 40.
Stealing Offences
50. There are two incidents involving stealing-type conduct in the Applicant’s history. First, in December 2011, the Applicant (then a juvenile), entered the Woolworths Caltex service station at Lansvale and to have stolen certain drinks and sandwiches from that facility. Confusingly, in the police incident report, this conduct is described as “Actual Stealing”. Yet, on neither criminal history appearing in the material,[45] does the Applicant have a recorded conviction for stealing either as a juvenile or an adult. The police incident report concludes with “Police are to make contact with POI[46] and place a form of demand on him.”[47] Further, that “All YP’s[48] have taken part in an interview with a support person. All YP’s have made admissions to the offence and have shown remorse for their actions.”[49]
[45] See the criminal history in Exhibit R2, Respondent’s Bundle of Material, R3, pages 76–77; see also, Exhibit R3, s 501 G-Documents, G3, pages 30–31.
[46] Person of Interest.
[47] Exhibit R2, Respondent’s Bundle of Material, R2, page 61.
[48] Presumably, “young persons”.
[49] Exhibit R2, Respondent’s Bundle of Material, R2, page 61.
51. Second, on 21 July 2013, the Applicant forcibly entered a motor vehicle and sought to take away a key, cigarettes, coins and an identification card. In perhaps a portent of the conduct of the Applicant’s later aggravated robbery conduct at the hotel in Canley Vale, a confrontation ensued between the owner of the car and the Applicant. On this earlier occasion, however, it would appear that the victim of the Applicant’s conduct prevailed. Upon realising what the Applicant was doing, the owner of the car confronted the Applicant who immediately returned the items. This did not end the exchange.
52. The Applicant, while walking away, decided to pick up 2 sticks from the ground. The owner of the motor vehicle responded with picking up a metal pole from the inside of the car and with that implement in hand, successfully chased the Applicant away.
53. Upon their arrival, the police found a motor vehicle key upon the Applicant’s person. It was clear the subject key did not belong to the Applicant. The police incident report notes:
“…
Police verified the Accused’s identification and he was issued CIN[50] … for stealing, then released from Police custody. Canvass conducted, Nil CCTV footage available. NFPA[51]”[52]
[50] Criminal Infringement Notice.
[51] Presumably, NFPA is a reference to “No further police action”.
[52] Exhibit R2, Respondent’s Bundle of Material, R2, page 31.
54. Once again, the police incident report describes the conduct as “Actual Stealing”. Yet, on neither criminal history appearing in the material,[53] does the Applicant have a recorded conviction for stealing either as a juvenile or as an adult.
[53] See the criminal history in Exhibit R2, Respondent’s Bundle of Material, R3, pages 76–77; see also, Exhibit R3, s 501 G-Documents, G3, pages 30–31.
Assault
55. There is reference in the material to the Applicant being involved in an “Actual Assault” in November 2014. Once again, this conduct is, on any reasonable view, a portent of the more serious offending that occurred in October 2016 at the hotel in Canley Vale. The victim of the assault was:
“… walking to Canley Vale railway station to meet up with friends on his way to the city for a social event with friends. Whilst he was walking along Carcoola St when he was approximately 30 metres from First Ave when he has heard footsteps behind him, the VIC[54] has turned around and seen the three P/N[55] …, [the Applicant] and another person unknown to the VIC running up behind him as if they where [sic] going to “Jump him”. The VIC has restarted running was but was too slow to get away and realising that he couldn’t get away he has stopped and turned around to defend himself it was at to his point that the P/N 1 … has “shaped up” to the VIC raising his firsts as if to assault the VIC. Fearing that he was about to be assaulted the victim has put his hands up to defend himself and head butted P/N 1 in the forehead causing him to stumble backwards. The VIC has then pushed P/N2 and 3 back using both the palms of his hands. It was after pushing P/N 2 and 3 back that the VIC friends has arrived and both the three P/N have fled the location in the direction of Second Ave.”[56]
[54] Presumably, “Victim”.
[55] Presumably, “Persons Named”.
[56] Exhibit R2, Respondent’s Bundle of Material, R2, page 16. Note: the reference “P/N 2” is to the Applicant. The references to “P/N 1” and “P/N 3” are to the two co-offenders.
56. It does not appear that any further action was taken by the police in terms of bringing the offending to the notice of a court because the victim declined to provide a statement to the police. Once again, although described as “Actual Assault” in the police incident report, the Applicant has no recorded conviction for stealing either as a juvenile or as an adult.
Driving offences
57. The Applicant’s criminal history reveals that in July 2011, he was apprehended by police while driving a motor vehicle. As I understand the written material in addition to himself as the driver, there were four passengers in the vehicle. The Applicant informed the police that he was not licensed to drive a motor vehicle and that he was 16 years of age. I note, with some concern, that the subject vehicle’s registration had been cancelled and that it bore stolen number plates.
58. The Applicant’s criminal history indicates that his conviction for using an unregistered motor vehicle was the subject of a “Dismissed” notation on that history. However, for driving while when unlicensed, the Applicant was convicted of “Never licensed person drive vehicle on road – 1st offence” and that he was fined the sum of $200 plus $81 for Costs of Court.
Public Transport Fare Avoidance
59. The material indicates the Applicant has a long-held disdain for meeting the cost of using public transport. The material discloses:
·On 29 September 2011, the relevant police incident report notes the following:
“WARNING issued to the [Applicant] for the offence of “FAIL TO PRODUCE EVIDENCE OF ENTITLEMENT TO CONCESSION TICKET (JUV)”.”[57]
[57] Exhibit R2, Respondent’s Bundle of Material, R2, page 67.
·On 28 June 2013, the relevant police incident report notes the following:
“At the stated time date place the accused alighted from the train on Platform 1 and proceeded to the exit gates. Upon being spoken to by police to produce a valid ticket. He stated “I didn’t buy one.” Informed infringement would be posted.”[58]
[58] Ibid, page 31.
·On 27 November 2013, the relevant police incident report notes the following:
“… Police requested the [Applicant] to produce a valid railway ticket, [Applicant] stated to police “Waiting for a friend” … Police continued to question the [Applicant], as a result the [Applicant] stated to police he was going to hop on a train without a ticket … Police issued the [Applicant] with a move-along direction as police believe on reasonable grounds the [Applicant] was in the area to purchase a prohibited drug. Direction complied with. Infringement Notice issued.”[59]
[59] Ibid, page 26.
·On 5 December 2013, the relevant police incident report notes the following:
“…Police were checking tickets on the concourse level of Warwick Farm Railway Station when the [Applicant] walked up the stairs from the outbound platform after a train arrived. The [Applicant] was stopped and asked to produce a train ticket for inspection. … The [Applicant] stated, “I don’t have a ticket.”
…
Police searched the [Applicant] and located a wrapped up piece of aluminium foil containing a small amount of cannabis leaf in the left pocket of the [Applicant’s] pants. The [Applicant] was cautioned and arrested. He participated in a notebook record of interview where he admitted to possessing the cannabis for personal use. The cannabis was weighed, photographed and sealed in a plastic drug bag in the presence of the [Applicant]. The [Applicant] met the criteria and was issued with a Cannabis Cautioning Notice in relation to the cannabis. The [Applicant] was issued with an infringement in relation to the transport offence.”[60]
·On 13 February 2014, the Applicant received a transport infringement notice for an “Actual Transport Offence” for “… travelling on the train without a valid ticket.” The circumstances of this offence further indicate that “Police issued the [Applicant] a drug related move on direction as police believed the [Applicant] may supply or use a prohibited drug if he stayed at the location which the [Applicant] understood the direction and left with nil incident.”;[61]
·On 21 May 2015, the Applicant received a transport infringement notice for an “Actual Transport Offence” for “Travel or attempt to travel without valid ticket – adult”;[62]
·On 22 October 2015, the Applicant received a transport infringement notice for an “Actual Transport Offence” for “Travel or attempt to travel without valid ticket – adult”;[63]
·On 11 October 2017, the Applicant received a transport infringement notice for an “Actual Transport Offence” for “Travel or attempt to travel without valid ticket – adult”;[64]
[60] Ibid, page 25.
[61] Ibid, page 24.
[62] Ibid, page 14
[63] Ibid, page 13.
[64] Ibid, page 10.
Use of illicit drugs
60. As correctly noted by the Respondent, the Applicant does not have any recorded convictions for unlawful possession or other offending involving illicit drugs. As will be noted from the short quoted portions of the police incident reports regarding his public transport fare evasion conduct, the Applicant has been both known to and encountered by the police in relation to his use of illicit drugs, most notably, cannabis. There are recorded instances dating from as early as January 2011 up to February 2015.
Conduct in prison
61. As mentioned earlier, the Applicant was taken into immigration detention upon his release on parole in September 2019. The Applicant has not contravened any behavioural rules while in immigration detention. However, this is not the position in relation to his time in criminal custody. The relevant records indicate the Applicant being involved in three incidents of prison misconduct comprising:
(iii)two instances of “Have possession of tobacco, tobacco-related accessory, e-cigarette or e-cigarette accessory within a correctional centre”;[65] and
(iv)one instance of “disobey direction”.[66]
[65] Exhibit R2, Respondent’s Bundle of Material, see pages 81–92 and 93–104.
[66] Ibid, see page 105–119.
62. On 2 July 2018, the Applicant was the subject of an “Inmate Misconduct Report” for “possession of tobacco, tobacco-related accessory, e-cigarette or e-cigarette accessory within a correctional centre”. In terms of a “plea”, the Applicant pleaded “guilty”. In terms of any further comment, the records reveal that the Applicant had “nothing to say”. By way of punishment, the Applicant’s “buy-up privileges” were withdrawn for seven days.
63. On 15 March 2019, the Applicant was the subject of a further “Inmate Misconduct Report” for “possession of tobacco, tobacco-related accessory, e-cigarette or e-cigarette accessory within a correctional centre”. In terms of a “plea”, the Applicant pleaded “guilty”. In terms of any further comment, the Applicant said, “He did not ask me if I had anything in my room”. By way of punishment, the Applicant’s “buy-up privileges” were withdrawn for 14 days.
64. On 16 July 2019, the Applicant was the subject of a further “Inmate Misconduct Report” for “disobey direction”. In terms of a “plea”, the Applicant pleaded “guilty”. By way of punishment, the Applicant’s “buy-up privileges” were withdrawn for 7 days.
Application of Paragraph 13.1.1(1) of the Direction
65. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)…
(c)…
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)…
(h)…
(i)…
66. Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously. The Applicant has committed what can only be construed as at least one very serious crime of violence. That violent offending has been perpetrated against a victim enjoying a social evening at a local hotel facility in October 2016. The seriousness of this offending was, in my respectful view, aptly summarised by Her Honour Judge English as “a serious breach of the criminal law” and that
“As a result of the assault, the victim suffered from a sore nose, a layer of skin was missing from his bottom lip, he experienced pain and restriction of movement in his left shoulder, his left thumb was swollen, his left wrist was sore, his needs were swollen and grazed, there was grazing to the right lower part of his back and the upper side of his neck, and those areas were painful to touch.”[67]
[67] Exhibit R3, s 501 G-Documents, G4, page 33.
67. I have had regard to the specific written material available to the Tribunal and the Applicant’s evidence at the hearing. I am of the view (for the purposes of this sub-paragraph (a) of paragraph 13.1.1(1) of the Direction) that the very violent circumstances of the Applicant’s offending in October 2016 must be viewed very seriously.
68. Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) of paragraph 13.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of a given offence committed by an Applicant.
69. As mentioned earlier, the Applicant initially arrived in Australia in March 1999. His movement details thereafter can be summarised as follows:
·Depart 19 December 1999;
·Arrive 21 September 2005;
·Depart 16 October 2005;
·Arrive 25 June 2006;
·Depart 15 July 2006;
·Arrive 15 December 2006;
·Depart 2 February 2007;
·Arrive 1 June 2007;
·Depart 9 June 2007;
·Arrive 24 September 2007;
·Depart 17 October 2007;
·Arrive 17 December 2007;
·Depart 13 May 2008;
·Arrive 1 June 2008;
·Depart 6 May 2009;
·Arrive 22 December 2009;
·Depart 26 January 2010; and
·Arrive 14 March 2010.
70. By the time he arrived in Australia for the final time in March 2010, the Applicant was 14 years of age. His history of offending in Australia starts in August 2011, as a juvenile. In terms of recorded history, the Applicant’s offending culminated in the imposition of a three year custodial term for his plea of guilty to one count of aggravated robbery. This sentence was imposed upon him in March 2018.
71. The Applicant is now 24 years of age and, until his placement into criminal custody in March 2018, had been in Australia on a continuous basis for eight years. In terms of weight attributable to this sub-paragraph (d), it cannot be ignored that his offending has been punished by a head custodial term of three years, which represents almost 38% of his time in the mainstream Australian community for the eight years preceding his entry into criminal custody/immigration detention. This sub-paragraph (d) militates in favour of a finding that the Applicant’s offending is of at least a serious, more likely very serious, nature.
72. Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of non-citizen’s offending and whether there is any trend of increasing seriousness. To an extent, the investigatory exercise required by this sub-paragraph (e) largely mirrors that required by the immediately preceding sub-paragraph (d). This is because any increasing trend in the seriousness of the offending is usually analogous to the regime of sentencing imposed for it.
73. I will deal firstly with the frequency of the Applicant’s offending. He is presently 24 years of age. His offending spans the period August 2011 to March 2018. Although lengthy in terms of its timespan, the Applicant’s offending history, viewed fairly and reasonably, does not contain a long list of offences.
74. With reference to any discernible trend of increasing seriousness in the Applicant’s offending history, it can be fairly said that his offending commenced with the commission of two driving offences involving a motor vehicle as a minor in August 2011. There followed, some five years later, the commission of the very serious aggravated robbery offence that culminated in the imposition of a head custodial term of three years.
75. There is thus a clearly discernible trend in the seriousness of the Applicant’s offending between 2011 and 2016. An application of this subparagraph (e) leads to a finding that, if not the frequency of his offending, then certainly the increasing level of its severity, does attract a finding that his offending has been of at least a serious nature.
76. Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending.
77. Three observations can be made from the Applicant’s offending history. First, much of his offending, although requiring the intervention of lawful authority, has not resulted in the imposition of sentences that have found their way onto his criminal history. He has thus had the benefit of being dealt with, as it were, “on the spot”, and without the imposition of a formal charge or charges that have been punished by judicially applied sentences. His early offending in 2011 was dealt with by way of dismissal of certain of the driving charges and then by way of the imposition of a relatively modest fine. None of those measures resonated with the Applicant or convinced him to moderate his conduct. Despite this relatively moderate approach by the law enforcement authorities towards him, the Applicant nevertheless committed the very serious aggravated robbery offence in October 2016.
78. Second, when viewed in its totality, the Applicant’s conduct during his time in the mainstream Australian community from 2010 until 2018 is demonstrative of a failure within him to develop any measureable level of respect for lawful authority. It is not correct to say that his offending involved very low-level or regulatory offences but that there was a very serious “one-off” offending episode in October 2016. The Applicant did not respect lawful authority or the property rights of others when one has regard to (1) to his conduct in December 2011 and July 2013 relating to stealing; (2) the circumstances of the assault conduct in November 2014; (3) his lengthy history of using public transport without paying the necessary fare; and (4) his conduct while in prison involving three separate incidents of misconduct while in criminal custody.
79. Third, the cumulative effect of the Applicant’s offending, to my mind, is directly related to the unresolved state of his issues with abusing both alcohol and illicit drugs. It was clear from his oral evidence that his offending is attributable to unresolved substance abuse issues with either alcohol or illicit drugs. The overall effect of the Applicant’s substance abuse issues can be gleaned from his offending history.[68] It seems that much of his offending has been committed under the influence of either drugs or alcohol. As can be seen from his aggravated robbery offending committed in 2016, the Applicant’s moral compass and capacity to distinguish right from wrong becomes askew under the influence of those substances.
[68] This must surely include both the offences appearing in the Applicant’s criminal history and the assault matter in November 2014, the stealing matters in December 2011 and July 2013, and the various fare evasion offences that occurred in September 2011, June 2013, November 2013, December 2013, February 2014, May 2015, October 2015 and October 2017.
80. The Applicant’s oral evidence was to the effect that his strategy for addressing the factors predisposing him to offend is to be found in him ceasing any involvement with alcohol, illicit drugs and gambling. The primary difficulty with this evidence is that it is not corroborated by any contemporary and independent expert medical opinion.
81. Without the benefit of such medical evidence, there can be no certainty that any of the factors predisposing him to offend have been resolved or are otherwise under some kind of remedial management and control. Were he to offend again, he could cause very serious and, indeed, catastrophic harm. This is another very adverse cumulative effect of his offending.
82. The cumulative effect of the nature and extent of the Applicant’s repeated offending attracts application of this subparagraph (f) in favour of a finding that his offending has been of at least a serious, more likely, very serious nature.
83. The chapeau to the factors at Paragraph 13.1.1 of the Direction reads as follows:
“(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including: …”
[My underlining]
84. There are several further aspects to the Applicant’s conduct which, although not directly captured by the nine factors at Paragraph 13.1.1(1) of the Direction, nevertheless constitute “other conduct” relevant to any assessment of the nature and seriousness of the Applicant’s conduct.
85. First, I have earlier referred to his stealing-type conduct in December 2011, and July 2013. Although this offending does not appear on his criminal history, it did involve the intervention of the police and did involve either the actual or purported deprivation of property belonging to third parties.
86. Second, I have also earlier referred to the Applicant’s assault-type conduct in November 2014 involving the violent conduct towards a victim at the Canley Vale Railway Station. Although this offending, as well, does not appear on his criminal history it also involved the intervention of police and was an ominous precursor to the very serious circumstances of his offending in October 2016 culminating in him being charged and sentenced for aggravated robbery.
87. Third, I have earlier recounted the Applicant’s lengthy history of utilising public transport services without incurring the cost of a valid ticket to do so.
88. Fourth, while sub-paragraph (i) of paragraph 13.1.1(1) of the Direction refers to “a crime committed while the non-citizen was in immigration detention;” the Applicant has nevertheless been the subject of three incidents of prison misconduct during the 18 months he spent in criminal custody from March 2018 to September 2019.
89. While these four aspects of the Applicant’s offending do not appear in his criminal history, or may not otherwise be strictly captured by the nine sub-paragraphs in paragraph 13.1.1(1) of the Direction, I am nevertheless of the view that the totality of these particular aspects of his conduct are relevant and captured by the reference to “other conduct” in the abovementioned chapeau to Paragraph 13.1.1(1) of the Direction.
90. Having regard to the totality of the evidence to which the abovementioned relevant sub-paragraphs (a), (d), (e) and (f) of paragraph 13.1.1(1) of the Direction are relevant, I am of the view that the Applicant’s conduct is readily capable of characterisation as, at least “serious”, more likely, “very serious”.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
91. Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
(i)paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)paragraph 13.1.2(1)(b) requires me to consider 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 reoffending.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
92. At the hearing, the Respondent contended that:
“…In our overall submission…there is known a considerable risk that if released he may well fall back into the temptation of alcohol, drugs, gambling and that may well lead to further offending, further similar or even more serious conduct.”[69]
[69] Transcript, 10 February 2020, Page 54, lines 43-46.
93. Paragraph 6.3(4) of the Direction stipulates that decision-makers should be guided by the principle that criminal offending and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. On the basis of this paragraph 6.3(4), I think the Respondent’s abovementioned submission is correct.
94. It is clear there has been an evolution in the Applicant’s pattern of criminal offending between 2011 and March 2018. His early offending – certainly for its first three years – involved driving offences and public transport fare avoidance. A portent of his very serious offending in October 2016 can be seen in his “Actual Assault” conduct in November 2014. Ultimately, the offending culminated in the very serious aggravated robbery conduct that occurred in October 2016 and that was punished in March 2018.
95. Having regard to the trajectory of the nature of the Applicant’s conduct, there is much to suggest that, were he to re-offend if returned to that Australian community, the consequences would be very serious and would, quite conceivably, involve significant, and potentially catastrophic physical, financial and psychological harm to members of that community. Put simply, having regard to the trajectory of his conduct, it would be unsafe to find that, were he to re-offend in the realm of an assault or aggravated robbery paradigm, the nature of the harm to any victim would be somehow milder or less than that experienced by his victims in November 2014 and October 2016.
96. In sentencing the Applicant, it is clear that Judge English formed a similar view about the nature of the harm resulting from the Applicant re-offending:
“…Fortunately, the victim’s injuries [in the October 2016 aggravated robbery] were not too serious. All too often, these types of offences result in very serious injury to the victim or even the loss of life. This offender is yet another example of the very type of person who needs to be deterred from behaving in this fashion,…”[70]
[My underlining]
[70] Exhibit R3, s 501 G Documents, G4, page 40.
97. It is therefore reasonable to find that the potential consequences flowing from further similar or identical offending by this Applicant would be very serious. Were he to re-offend, I am of the view that its effect on a member or members of the Australian community would be very serious indeed and with, quite conceivably, potentially catastrophic consequences.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
98. The Applicant has a period of criminal offending running for approximately seven years. In that time, he has been afforded the benefit of virtually the full ambit of deterrent sentencing regimes, ranging from (1) fines, (2) “move-on” requests, (3) the police not taking further action in relation to his conduct, and (4) the dismissal of a charge or charges initially brought against him. One is very hard-pressed to detect from the criminal history that the Applicant has experienced any form of deterrent effect such as to result in him ceasing his offending.
99. Any assessment of the Applicant’s risk of re-offending is informed by a number of factors. Both his written material and his oral evidence at the hearing point to a reality about whether the Applicant has developed sufficient insight into the factors predisposing him to offend, such that it can now be said that he has accepted responsibility for his criminal offending. As also noted by Judge English when sentencing the Applicant in March 2018, while the Applicant had not re-offended for nearly 18 months until he came before Her Honour for sentencing:
“…it is only recently that he has taken steps to address issues of drug and alcohol abuse and a gambling addiction, principally because those habits cost too much or impacted upon his level of fitness to play football. My concern is that if he is no longer playing football, he might well relapse, and of course if he relapses, he will reoffend. It is a concern that he is unable to identify any negative consequences of his addictions other than the cost. In those circumstances, I find his prospects at this stage for rehabilitation are guarded.”[71]
[My underlining]
[71] Ibid, page 39.
100. An assessment of the Applicant’s risk of re-offending is also informed by an examination of steps he has taken to address the most obvious causative effects of his offending thus far. His own evidence makes it clear that difficulties with alcohol have been one of the main causative reasons behind his offending conduct. In his written material, and in his oral evidence, the Applicant said that for at least a year and a half he has abstained from consuming alcohol. The difficulty with that contention is that this period represents his time in criminal custody and/or immigration detention during which periods he would have been denied access to the consumption of alcohol.
101. The material makes it clear that the Applicant has had a previous propensity to “drinks to the point of intoxication about once a month”[72] and that “he finds it hard to resist drinking.”[73] Further, the material discloses that the Applicant’s mother “…says of her son that he is quickly angered, particularly if intoxicated, and in the past has been violent towards the family and to property.”[74] The high point of the Applicant’s evidence in relation to controlling his propensity to abuse alcohol is to be found in his self-professed contention of having stopped drinking for approximately the last 18 months. That evidence is not corroborated by any expert and independent opinion.
[72] Ibid, page 35.
[73] Ibid, page 36.
[74] Ibid.
102. With reference to his abuse of illicit drugs, it cannot be said the Applicant has properly addressed this issue either. His evidence in relation to illicit drugs is similar to what he says about alcohol. He contends that he has not consumed illicit drugs for something in the order of two years. This contention is, to an extent, supported by the written material. Be that as it may, aside from the Applicant’s own evidence about abstaining, there is no other evidence on which this Tribunal can base a finding that, were the Applicant to be returned to the Australian community and were he to again associate with negative peers whose drug and alcohol abuse was the norm, he would not relapse into a pattern of abusing illicit substances.
103. While it may not have featured as prominently as drugs and alcohol as a causative factor behind the Applicant’s offending, it is clear that the Applicant has had difficulties with a gambling habit. As noted by Judge English, “…At its peak, he says, he was gambling up to $1,000 a week. Like consuming alcohol, he says he found it difficult to resist. It says he concealed his gambling from his family and girlfriend.”[75] An addiction to gambling gives rise to a need for money to gamble. The only evidence that the Applicant’s propensity towards gambling has been resolved is his own contention that he has done so. As is the case with his issues with illicit drugs and alcohol, no independent and suitably qualified expert has assessed the level of this propensity and the extent to which the Applicant has now overcome it.
[75] Ibid, pages 36 and 37.
104. In the absence of such independent and expert evidence and having regard to the uncorroborated nature of the Applicant’s own evidence about abstinence from abuse of (1) alcohol, (2) illicit drugs and (3) gambling, very little, if any, weight can now be allocated to his contentions about being rehabilitated. In short, the evidence goes no further than the Applicant saying he has rehabilitated himself from each of these three factors.
105. I accept the Applicant has completed certain programs during his time in criminal custody and/or immigration detention. Those programs were put to the Applicant at the hearing, and it emerged that the primary focus and purpose of those programs was for the Applicant to take responsibility for the consequences of his actions and to otherwise deal with difficult situations without recourse to illicit substances or to otherwise easily yield to potentially destructive temptations such as gambling.
106. Commendable though his participation in such programs may be, it falls well short of the necessary expert and independent clinical evidence that (1) the causative factors of the Applicant’s offending have been identified, and (2) that those factors are under some kind of remedial treatment, management and control such that it can be reliably found that the Applicant’s risk of re-offending is low.
107. There is no escaping the reality of the Applicant’s overall pattern of conduct across 2011-2016. Low-level stealing in 2011 and 2013 and public transport fare evasion escalates into the “Actual Assault” conduct in 2014 and the “Aggravated Robbery” conduct in October 2016. The pattern of conduct leading to his offending is not, in terms of its level of seriousness, dissipating. On the contrary, its upward trajectory is obvious. Although not determinative, the Applicant’s propensity to take the easy option and to not comply with rules and regulations is evident from his three instances of breaching prison rules/protocols during his time in criminal custody. One could reasonably expect that if placed in any such a facility which is designed for the rehabilitation of inmates, the Applicant would have refrained from engaging in such conduct. The opposite has occurred.
108. The Applicant’s fiancée has provided both a written statement and oral evidence at the hearing. The relationship between her and the Applicant is palpable and genuine. They have been together since mid-2011. She seems a mature, sensible and intelligent young lady who will soon complete tertiary qualifications in occupational therapy. She wants to utilise those skills and qualifications in the aged care sector and to make that her career. In his evidence, the Applicant sought to suggest that his relationship with his fiancée was, to him, sacrosanct and that the importance of the relationship to him would deter him from offending in future.
109. Such a contention must be weighed against the reality that the subject relationship spans virtually the entire period of the Applicant’s offending history. The relationship did not stop the Applicant from commencing his offending, nor did the relationship prevent the increase in the seriousness of his offending conduct. Having regard to the nature of the Applicant’s offending history, superimposed, as it is, over almost precisely the same period of time of his relationship with his fiancée, it is difficult to allocate any positive weight in favour of the Applicant to such a contention.
110. I will conclude this part of my consideration with two references about the Applicant. First, in her sentencing remarks, Judge English found the Applicant to be “…a most unimpressive witness.”[76] This comment is, to my mind, an accurate one. It is important to distinguish between Her Honour’s finding about the Applicant being an unimpressive witness and to not presume he is an unimpressive person. I did not find the Applicant an unimpressive person, nor, to my mind, did Judge English. However, the Applicant’s evidence given before me was unimpressive. I think it was unimpressive because he lacks the insight about his offending that he would have otherwise received from external and expert diagnosis. As a result, the only (and thus “unimpressive”) evidence the Applicant could provide about his risk of re-offending was that he had rehabilitated himself from the negative and causative propensities behind it.
[76] Ibid, page 35.
111. Second, the Applicant’s level of insight into his offending – for the purposes of the instant application – has not changed. It remains at its low level, as it was at the time of his sentencing in March 2018 by Judge English, who had the benefit of a psychologist’s report. Judge English noted the following things about that psychologist’s report:
“He said to the psychologist that he felt sorry for what happened and that the victim would have been hurt as a result. The psychologist also considered that the offender had limited insight and difficulty in expressing his remorse. The psychologists records the offender as saying, “I would just say it’s wrong. It’s not right to rob people. The victim would have worked hard to buy his phone.” Following psychometric testing, the psychologist is of the opinion that the offender is someone who is socially awkward, who desires close friendship with others yet fears rejection and humiliation. Cannabis and alcohol were maladaptive ways of coping with his feelings. In her opinion, his attitudes and values have been shaped by his negative peers rather than his positive upbringing.”[77]
[77] Ibid, page 37.
112. In assessing the Applicant’s risk of re-offending, a decision-maker is required to “take into account available information and evidence on the risk of the non-citizen re-offending…”[78] There is no such evidence before the Tribunal. There was no evidence adduced at the hearing to demonstrate that the Applicant’s level of insight into the nature of both his offending and its causes was any greater than it was at the time of his sentencing before Judge English.
[78] See paragraph 13.1.2(1)(b) of the Direction.
113. The inevitable conclusion to be reached about the Applicant’s risk of re-offending is best informed by an application of Principles 6.3(3)-(4) and paragraph 13.1.2(1) of Direction 79. The combined effect of those provisions is that the harm resulting from any return by the Applicant to his offending ways may very well be so serious such that any risk of similar conduct in the future is unacceptable. I so find.
114. I am also mindful of the comments made by a previous President of this Tribunal, His Honour Justice Davies, who said the following about the risk of reoffending:[79]
“The likelihood of recidivism is a strong factor in favour of the deportation when the Tribunal is not satisfied that the criminal is unlikely to offed again…and even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm.”
[79] Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81.
Conclusion: Primary Consideration A
115. The Applicant’s pattern of offending (including his dealings with law enforcement officers that did not result in formal charges) and resulting history, clearly demonstrates he has been afforded multiple opportunities to modify and ameliorate his conduct. He has had the benefit of being warned and not being charged, having charges dismissed and having fines imposed – prior to the imposition of the three year head custodial term in March 2018. However, he failed to grasp the opportunities to alter his offending behaviour that were provided to him and, instead, continued to offend, and, in October 2016, very seriously so.
116. The state of the evidence means that he is nowhere near convincing this Tribunal that he has engaged with a process demonstrative of any meaningful or effective treatment or other expert and clinical intervention-based therapies necessary to demonstrate that his risk of re-offending could somehow move downwards from its present high level.
117. I have had regard to the provisions of paragraphs 13.1.1 and 13.1.2 of the Direction and have also had regard to sub-paragraph 6.3(3). I find that (1) the nature of the Applicant’s offending conduct to date is very serious and (2) there is a strong and convincing likelihood that he will engage in further very serious conduct if returned to the Australian community.
118. In consideration of all of the evidence and each of the relevant factors contained in the Direction, I find that Primary Consideration A weighs heavily in favour of non-revocation.
Primary Consideration B: The Best Interests of Minor Children in Australia
119. Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
120. It is first necessary to identify the children actually or possibly relevant to this proceeding. As I understood the evidence, the Applicant does not have any biological children of his own, nor does he have any step-children. As I understood the evidence, the only relevant children captured by the Direction for the purposes of this Primary Consideration B comprise:
oHis niece and nephew, who are the children of his sister, “JLA”. The niece is aged three years and the nephew is just over one year old. I will refer to these children as “the three year old niece” and “the one year old nephew”; and
oFour infant children of the Applicant’s cousin, “NF”. I will refer to those children as ‘Year 9 child”, “Year 7 child”, “Year 5 child” and “Year 4 child”.[80]
[80] Exhibit 12, s 501 G-Documents, G10.
The Applicant’s evidence in cross-examination
121. In cross-examination, the Applicant provided limited evidence about the extent of his relationship with the abovementioned six infant children in Australia. First, in relation to the three year old niece and one year old nephew, the following transpired during cross-examination:
“MS NG: All right. Well, I just want to ask you a bit about your family now, [the Applicant]. I think I have got a fairly good picture but I just want to confirm. So your - your father is [name redacted]?
APPLICANT: Yes.
MS NG: And he’s not here today?
APPLICANT: Not here today.
MS NG: Your mother is [name redacted]. Your two sisters are [JLA] and [name of second sister redacted]?
APPLICANT: Yes. Yes.
MS NG: And [the three year old niece] and [the one year old nephew]?
APPLICANT: Yes.
MS NG: Sorry if my pronunciation is wrong. That’s your niece and your nephew?
APPLICANT: Yes.
MS NG: And they are [JLA’s] children?
APPLICANT: Yes.
…
MS NG: Okay. And can I also ask, [NF]. She’s not giving evidence today but she has given a statement. She’s also your cousin?
APPLICANT: Yes.
MS NG: And is she Uncle [name redacted]’s daughter as well?
APPLICANT: Yes, she’s his daughter. Yes.
…
MS NG: Okay. Okay. So those are all - those four - those are [NF’s] four children?
APPLICANT: Yes.
MS NG: Okay. Do you know how old they are?
APPLICANT: Year 9, year 7, year 5 and year 4.[81]
[81] These are the four children of NF whom I have called “Year 9 child”, “Year 7 child”, “Year 5 child” and “Year 4 child”.
MS NG: Okay. And how often do you see them?
APPLICANT: Not for a long time. Not - not since I have been to jail.
MS NG: And what about before you went to jail?
APPLICANT: Weekly.
MS NG: And what would you do when you see them?
APPLICANT: So the three boys, which - which are all the three of them expect for [the year four children], which is the - the youngest one, they all play footy for [Redacted].
MS NG: So you would see them weekly at the training session, or a match or something?
APPLICANT: Training, yes, the weekends.
MS NG: Anything beyond that, with the three boys?
APPLICANT: Yes, just weekend outings, I’d take them out.
MS NG: Would that be with their parents?
APPLICANT: No, just - - -
MS NG: Just you?
APPLICANT: Yes.
MS NG: They live with their parents, though?
APPLICANT: Yes.
MS NG: What about the girl? She’s not in the (indistinct) team?
APPLICANT: Yes, she – she stays with her parents as well, but she’s young. Well, she was young when I was around. And – but, yes, I spent a bit of time with her when she – like, when she was younger. But, yes, I spent a lot of time with the boys, with footy and stuff.
MS NG: All right. Is there any other extended family that we should be aware
of?APPLICANT: No.
…
MS NG: All right. I’m going to ask you some questions about your niece and your nephews. They’re the ones – they’re outside, I believe. How would you describe your relationship with [the three year old niece]? That’s the girl, isn’t it, the older girl?APPLICANT: Yes. I was very close with her. We – I – we talk on the phone every day, video calls.
MS NG: Was that before you went to jail, or after?
APPLICANT: Before and during. She visits me every week, she comes to visit me.
MS NG: She came to visit you in jail every week?
APPLICANT: Yes.
MS NG: And what at about now, at Villawood?
APPLICANT: Every week.
MS NG: So when did you last see her, apart from today?
APPLICANT: What’s today, Monday? Saturday.
MS NG: And before you went to jail, what kinds of things would you do with
[the three year old niece]?APPLICANT: I spent every day with her since – since she was born, really. We lived together.
MS NG: Did she live with you when you were – when you moved with Ms
Truong?APPLICANT: No, but I would come home every day.
MS NG: Now, your nephew: how old is he? [the one year old nephew]?
APPLICANT: He is one.
MS NG: One?
APPLICANT: Or just over one.
MS NG: And how often do you see him?
APPLICANT: I see him every week as well.
MS NG: Does he visit you as well?
APPLICANT: Yes.
MS NG: Did you last see him on Saturday?
APPLICANT: No, he didn’t come this Saturday.
MS NG: When did you last see him?
APPLICANT: Saturday – two Saturdays before that.
MS NG: And currently they live with your sister [JLA]?
APPLICANT: Yes.
MS NG: And your parents?
APPLICANT: Yes.
MS NG: Not with [the Applicant’s fiancée]?
APPLICANT: No.
MS NG: Would you agree with me that you’re not, and you wouldn’t be a primary caregiver?
APPLICANT: What’s the meaning of that?
MS NG: Well, in the sense that they have their parents living with them, taking care of their daily needs
APPLICANT: Yes.
MS NG: If you had to return to New Zealand, is there any reason you couldn’t keep in touch with them using, say, phone or Skype?
oconduct constituting “Actual Assault” in November 2014;
otwo instances of conduct constituting “Actual Stealing” in December 2011 and July 2013;
oeight instances of conduct constituting “Travelling on public transport without valid ticket” in September 2011, June, November and December 2013, February 2014, May and October 2015 and October 2017;
·his offending culminated in the very serious offence of aggravated robbery against a member of the general public. That offending, were it to be repeated, could realistically have the potential of serious or even catastrophic harm to members of the Australian community;
·his offending derives from unresolved issues with alcohol, illicit drugs and gambling. The only tangible evidence that these issues have been addressed derives from the Applicant’s contention that he has simply stopped doing or partaking in these things;
·Without the benefit of any current, independent expert evidence, those unresolved issues can be (inexpertly) stated as: (1) a predisposition towards abusing illicit drugs and alcohol; (2) a lack of regulation of his impulsivity to regulate his conduct, especially in the context of a negative peer group; and (3) a demonstrated lack of insight into the causative effects behind his predisposition to offend;
·his offending has seen him removed from the Australian community on a continuous basis, be it in the form of criminal custody or immigration detention, since approximately March 2018;
·the three years of custodial time he received for the aggravated robbery offence in March 2018 comprises approximately 38% of his eight years spent in the general community of this country; (i.e. from March 2010 until March 2018);
·he is 24 years of age and has an offending history that runs for almost seven years. Difficulties with law enforcement have been a significant feature for the entirety of his adult life in this country thus far;
·the state of the evidence is such that the Tribunal cannot be reasonably expected to form any definitive view about the Applicant’s risk of reoffending other than it remains as it was – and as Judge English found it to be - prior to his most recent removal from the Australian community in March 2018;
·there is no current, independent or expert evidence before the Tribunal:
(iii)providing any diagnosis of the extent of the Applicant’s predisposition to abuse alcohol and illicit substances, and to gamble;
(iv)the extent to which those unresolved and unmanaged substance abuse and addiction issues contribute to and are directly causative of his predisposition to offend, culminating in his commission of the very serious offence of aggravated robbery;
(v)that those diagnosed factors are now the subject of an externally imposed and monitored regime of remedial therapy, treatment and management; and
(vi)that the Applicant has demonstrated any independently measured level of insight into his offending which makes it impossible for this Tribunal to find that his risk of re-offending is low.
The Evolution of the Australian Community’s “Expectations”
150. In 2003, Deputy President Block of this Tribunal said that in considering weight attributable to this Primary Consideration C, one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[87]
[87] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36].
151. In 2017, Deputy President Forgie of this Tribunal considered that paragraph 13.3(1) of the Direction leads a decision-maker to:[88]
“102. …conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…”
[My underlining]
[88] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
152. In Afu v Minister for Home Affairs (“Afu”),[89] Justice Bromwich said:
“The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.”
[My underlining]
[89] [2018] FCA 1311 at [85].
153. In FYBR v Minister for Home Affairs (“FYBR”),[90] Justice Perry observed that:
“It follows, in line with the authorities, that cl 11.3 of Direction 65[91] is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...” [92]
[My underlining]
[90] [2019] FCA 500.
[91] Note: FYBR was concerned with a visa refusal. This means the relevant paragraph relating to expectations of the Australian community was paragraph 11.3 [et seq] of the Direction. The instant case is, of course, a matter relating to the non-revocation of a mandatory cancellation decision. In those latter circumstances, the relevant paragraph is 13.3 [et seq] of the Direction. Further, “the Direction” is now Direction 79 that took operative effect on and from 28 February 2019. The paragraph numbering in Direction 79 relating to “expectations of the Australian community” remains the same as per Direction 65 – that is, paragraph 11.3 for visa refusal matters and paragraph 13.3 for non-revocation matters.
[92] FYBR, paragraph [42] (Perry J).
154. FYBR was appealed to the Full Federal Court. On 25 October 2019, the Full Court upheld FYBR, confirming Justice Perry’s reasons and approach to the expectations of the Australian Community.[93]
[93] See FYBR v Minister for Home Affairs [2019] FCAFC 185.
155. Thus, the Full Court’s decision, along with the existing authority of Afu establishes that:
(a)the “expectations of the Australian community” cannot be measured or determined as in the case of a provable fact. It is an assessment of community values made on behalf of that community;[94]
(b)it is not for the Tribunal to determine for itself what such “expectations” are by reference to the Applicant’s circumstances or evidence about those expectations;[95]
(c)the Government’s views in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government thinks are the “expectations of the Australian community”, and the Tribunal should have due regard of those statements, if made;[96]
(d)in assessing the weight attributable to this Primary Consideration C, decision makers can have regard to the principles in paragraph 6.3 of the Direction, in particular, sub-paragraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision maker.[97]
[94] Afu at paragraph [85].
[95] FYBR at paragraph [42].
[96] FYBR v Minister for Home Affairs [2019] FCAFC 185, paragraph [74] (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
[97] Ibid, paragraphs [77] (Charlesworth J) and [105] (Stewart J).
Analysis – Allocation of Weight to this Primary Consideration C
156. The Applicant does have a demonstrated history of participation in the Australian workforce. He has described it thus:[98]
“From 2012 to 2012 – Removilist [sic] – [Name of business redacted]
From 2012 to 2015 – Forklift – [Name of business redacted]
From 2017 to 2017 – Forklift – [Name of business redacted]
From 2017 to 2018 – Forklift – [Name of business redacted]”
[98] Exhibit R3, s 501 G-Documents, G10, page 68.
157. He has also made certain contributions to Australian community and cultural activities: “I volunteer in my local rugby league club as trainer for under 13’s on weekends and days im [sic] finish work early.”[99]
[99] Ibid.
158. Having regard to the totality of the Applicant’s unlawful conduct from 2011 to 2016, and his resulting criminal history, he has surely breached the expectations of the Australian community. He has, over some five years (from 2011 to 2016), consistently, and ultimately, in October 2016, very seriously failed to abide by the laws of Australia. In ascertaining the weight attributable to this Primary Consideration C, I take into account the following factors and/or findings:
(i)the level of the Applicant’s positive contributions to the Australian community;[100]
(ii)the Applicant has lived in Australia for approximately eight years (up to his removal from the Australian community);[101]
(iii)the removal of the Applicant may have an adverse impact on the relevant six minor children and his fiancée in Australia;[102]
(iv)the very serious nature of the Applicant’s offending to date to members of the general public;
(v)the nature of the totality of his conduct in this country, involving, as it does, a lack of respect for lawful authority and the personal and property rights of others;
(vi)the lack of current, independent and expert evidence measuring the level of the Applicant’s insight into the nature and severity of his offending;
(vii)my finding of a strong and convincing likelihood that he will engage in further and, most likely, very serious conduct if returned to the Australian community; and
(viii)my assessment of the quite significant risk of substantial and even catastrophic harm to the Australian community were he to re-offend.
[100] The Direction, paragraph 6.3(7).
[101] The Direction, paragraph 6.3(5).
[102] Ibid, paragraph 6.3(7).
Conclusion: Primary Consideration C
159. I am of the view that the above factors, read as a whole in the context of this case, militate in favour of not revoking the cancellation of the Applicant’s visa. I accordingly find that this Primary Consideration C is of heavy weight in favour of affirming the non-revocation decision under review.
OTHER CONSIDERATIONS
160. It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
161. The Applicant has not claimed to fear harm if returned to New Zealand. None of the evidence suggests a risk of harm in those circumstances. This consideration is not relevant to the determination of this application.
(b) Strength, nature and duration of ties
162. There are the following limited concessions made by the Respondent:
“63. The respondent accepts that the applicant’s immediate family (father, mother and 2 sisters), as well as his fiancée, are in Australia and would be affected by his removal to New Zealand. They understandably wish for him to remain in Australia.
64. The respondent further accepts the applicant has had a relatively stable history of employment as a forklift driver, and that he was involved in the local rugby league club.”[103]
[103] Exhibit R1, Respondent’s SFIC, page 10.
163. The Applicant was born in June 1995. He came to Australia (on a final basis) in March 2010. He has spent the majority of his life in New Zealand. His offending history commenced under two years after his arrival in Australia, from March 2010 to August 2011. Having regard to paragraph 14.2(1)(a)(i) of the Direction, less weight should be given to this Other Consideration in those circumstances. As against that, there is some evidence that he has made some level of contributions to Australia via his employment history, which runs from 2012 to 2018. This would attract some weight in his favour pursuant to paragraph 14.2(1)(a)(ii) of the Direction.
164. A greater (but not determinative) measure of weight in favour of the Applicant pursuant to this Other Consideration (b) can be found in paragraph 14.2(1)(b). In Australia, in addition to the six relevant infant children, the Applicant has a father, a mother, two sisters and his fiancée. His Personal Circumstances Form also speaks of at least seven cousins in Australia. In response to the question: “Please state how many relatives you have in Australia or overseas” in his Personal Circumstances Form, the Applicant responded thus:[104]
[104] Exhibit R3, s501 G Documents, G10, page 66.
Australia
Other country - specify
Number of uncles/aunts
Over 50 members
3
Number of nieces/nephews
Around 40[105]
2
Number of cousins
Over 30
4
Number of grandparents
None
2
[105] See Transcript, page 19, lines16 and 17 where the Applicant was asked whether there was “any other extended family that we should be aware of” (other than the 6 children previously identified) to which the Applicant replied “No”.
165. Given the size of the strength, duration and nature of the Applicant’s family/social links with members of his immediate and extended family in Australia, a moderate measure of weight is attributable to this Other Consideration (b) pursuant to paragraph 14.2(1)(b) of the Direction.
166. Accordingly, having regard to the totality of evidence relevant to this Other Consideration (b), I am of the view that it weighs moderately in favour of revocation, but is outweighed by Primary Considerations A and C, which favour non-revocation.
(c) Impact on Australian business interests
167. There is no evidence before the Tribunal that cancellation of the Applicant’s visa would have an impact on Australian business interests. This consideration is not relevant to determination of this application.
(d) Impact on victims
168. The Respondent has not called any evidence relating to the impact that the Applicant’s continued presence in Australia would have on any of his victims. No doubt, the victim of his aggravated robbery offending in October 2016 may have had something to say about the impact of the Applicant’s continued presence in Australia upon him/her.
169. However, in the absence of such evidence, be it in the form of a victim impact statement or otherwise, it would be irresponsible for me to enter the realm of mere conjecture and guess as to the impact that the Applicant’s continued presence in Australia would have on that or any other of his victims. Accordingly, I cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s visa and is thus neutral.
(e) Extent of impediments if removed
170. As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and if required to re-establish themselves in that country. Relevant factors to be taken into account include:
(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.
171. The Applicant contends that:[106]
“I have spent most or all of my adult life in Australia I do not talk to anyone I know in my country of citizen I wont know where i would stay i would leave all my family in Australia worst still i will never be allowed to return.”
[errors in original]
[106] Ibid, page 70.
172. The Applicant is a young man of 24 years of age. In response to question in his “Personal Circumstances Form” about “Do you have any diagnosed medical or psychological conditions?” the Applicant ticked the “No” box.[107] It is reasonable to find that the level of medical care and governmental social support in New Zealand[108] is at or about the same level as that available to the Applicant in Australia. The Applicant will have access to those things in the context of what is generally available to other citizens of New Zealand. Thus, the Applicant’s age and state of health are not factors that attract any measure of weight to this Other Consideration (e).
[107] Ibid, page 69; see also Section 14.5(1)(a) of the Direction.
[108] Section 14.5(1)(c) of the Direction.
173. I note there are no significant or substantial language or other cultural barriers to the Applicant’s return and re-establishment in New Zealand.[109] New Zealand is culturally and linguistically similar to Australia. It cannot be said that the Applicant will face significant linguistic or cultural barriers were he compelled to return there. To the extent he may face some difficulty in re-establishing himself in New Zealand, this would only present as a short-term hardship and would not preclude his successful re-settlement there.[110]
[109] Section 14.5(1)(b) of the Direction.
[110] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 at [101] per Senior Member Kelly.
174. In his Personal Circumstances, the Applicant speaks of adverse outcomes were he to be returned to New Zealand as follows:
“Do you have any concerns or fears about what would happen to you on return to your country of citizenship?
[The Applicant ticked the ‘Yes’ box]
If yes, please describe your concerns and what you think will happen to you if you return.
I am the eldest sibling I have two younger sisters I am my mum and dad only son.” [111]
[Errors in original]
[111] Exhibit R3, s 501 G-Documents, G10, page 69.
175. As mentioned, the Applicant also has an employment history in Australia. He has worked as a removalist and a duly qualified forklift operator in this country. He also holds certain certificates in first aid,[112] tree surgery,[113] hygienic practices and food safety,[114] secure cargo,[115] general construction,[116] and work safely in the construction industry.[117] There is little evidence in the material to cavil with the contention that the Applicant would not be able to find similar work in any of these fields – certainly as a forklift operator - upon his return to New Zealand.
[112] Ibid, G17 page 93.
[113] Ibid, G18, page 95.
[114] Ibid, G19, page 97.
[115] Ibid, G22, page 103.
[116] Ibid G23, page 104.
[117] Ibid, G24, page 105.
176. Having regard to the totality of the evidence, I am thus of the view that this Other Consideration (e) is of slight weight in favour of revocation.
Findings: Other Considerations
177. With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C, which respectively weigh very heavily and heavily in favour of non-revocation. The application of the Other Considerations in the present matter can be summarised as follows:
·international non-refoulement obligations: not relevant;
·strength nature and duration of ties: moderate weight in favour of revocation;
·impact on Australian business interests: not relevant;
·impact on victims: neutral; and
·extent of impediments if removed: slight weight in favour of revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
178. Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test, or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.
179. In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration A weighs heavily in favour of non-revocation;
·Primary Consideration C weighs heavily in favour of non-revocation;
·Primary Consideration B weighs moderately in favour of revocation;
·I have outlined the weight attributable to the Other Considerations. I do not consider that any of them, even when combined with each other and/or with Primary Consideration B, outweigh the significant and determinative weight I have attributed to Primary Considerations A and C; and
·a holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
180. Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
181. The decision under review is affirmed.
182. I certify that the preceding one-hundred and eighty-one (181) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
.............................[sgd]...........................................
Associate
Dated: 25 February 2020
Date of hearing: 10 February 2020 Applicant: In person Solicitors for the Respondent: Ms Grace Ng
Australian Government Solicitor“A”
EXHIBIT LIST
File No: 2019/8049
Between: JKPM
And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Heard on 10 February 2020
At Sydney
| APPLICANT’S EVIDENCE | |||
| Exhibit No. | Description | Date of document | Date of filing |
| A1 | Applicant’s national criminal history check | 17 June 2019 | 06 Dec 2019 |
| A2 | Applicant’s sentencing report in the NSWDC before English J | Mar 2018 | 06 Dec 2019 |
| A3 | Report from NSW Department of Corrective Services | 23 Aug 2018 | 06 Dec 2019 |
| A4 | Applicant’s movement history | 05 Apr 2018 | 06 Dec 2019 |
| A5 | Notice of visa cancellation | 28 Aug 2018 | 06 Dec 2019 |
| A6 | Acknowledgement of visa cancellation | 06 Sept 2018 | 06 Dec 2019 |
| A7 | Applicant’s response to the Department – reasons for revocation | 02 Oct 2018 | 06 Dec 2019 |
| A8 | Applicant’s basic personal data – to be submitted to Department for consideration | Undated | 06 Dec 2019 |
| A9 | Character reference from the Applicant’s fiancée | Undated | 06 Dec 2019 |
| A10 | Character reference from the Applicant’s mother | Undated | 06 Dec 2019 |
| A11 | Character reference from the Applicant’s sister | Undated | 06 Dec 2019 |
| A12 | Character reference from the Applicant’s cousin “NF” | Undated | 06 Dec 2019 |
| A13 | Applicant’s statement | Undated | 06 Dec 2019 |
| A14 | Various certificates including:
| 06 Dec 2019 | |
| A15 | NSW Corrective Services Case Plan | 24 Aug 2018 | 06 Dec 2019 |
| A16 | Letter from the Applicant’s sister | Undated | 5 Feb 2020 |
| A17 | Letter from the Applicant’s mother | Undated | 5 Feb 2020 |
| A18 | Letter from the Applicant’s uncle | Undated | 5 Feb 2020 |
| A19 | Letter from the Applicant’s cousin “MT” | Undated | 5 Feb 2020 |
| RESPONDENT’S EVIDENCE | |||
| Exhibit No. | Description | Date of document | Date of filing |
| R1 | Statement of Facts, Issues and Contentions | 23 Jan 2020 | 23 Jan 2020 |
| R2 | Respondent’s Bundle of Material | Various | 23 Jan 2020 |
| R3 | Section 501 G-Documents | Various | 20 Dec 2019 |
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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