Johnson and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2022] AATA 3193
•30 September 2022
Johnson and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3193 (30 September 2022)
Division:GENERAL DIVISION
File Number: 2022/5328
Re:Irie Te Moana Johnson
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
reasons for Decision
Tribunal:Senior Member Dr M Evans-Bonner
Date:30 September 2022
Place:Perth
On 19 September 2022, I made the following decision:
The Reviewable Decision, being the decision of a delegate of the Respondent dated 22 June 2022, is affirmed.
These are my written reasons.
.......................[Sgd]....................................
Senior Member Dr M Evans-Bonner
Catchwords
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of the Applicant’s Visa – character test – substantial criminal record – offences include aggravated burglary, property offences, dishonesty offences, numerous breaches of court imposed orders and traffic offences – methamphetamine addiction – Direction No 90 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – domestic violence against former partner – minimal information concerning minor children – expectations of the Australian community – extent of impediments in circumstances where Applicant voluntarily returned to New Zealand – links to the Australian community – Applicant is a 30-year-old man who has resided in Australia for seven years – strength, nature and duration of ties to Australia – there is not another reason to revoke the Cancellation Decision – Reviewable Decision affirmed
Legislation
Migration Act 1958 (Cth) ss 197A, 499, 499(1), 499(2A), 500(6B), 500(6H), 500(6L), 501, 501(1), 501(2), 501(3A), 501(6), 501(6)(a), 501(6)(c), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501G(1)
Sentencing Act 1995 (WA) s 11
Cases
Kohli and Minister for Immigration and Border Protection [2017] AATA 1326
Nathanson v Minister for Home Affairs & Anor [2022] HCA 26
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Webb v Minister for Home Affairs [2020] FCA 831
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
Secondary Materials
Commonwealth of Australia National Drug Strategy 2017-2026 (Department of Health, 2017)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021) paras 4(1), 5.1, 5.1(3), 5.2, 5.2(4), 6, 7, 8, 8(1), 8(2), 8(3), 8(4), 8.1, 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(a)(iii), 8.1.1(1)(b), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2, 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(b)(i), 8.1.2(2)(b)(ii), 8.2, 8.2(2), 8.2(2)(a), 8.2(2)(b), 8.2(3)(a), 8.2(3)(b), 8.2(3)(c), 8.2(3)(d), 8.3, 8.3(1), 8.4, 8.4(1), 8.4(2), 8.4(2)(a), 8.4(2)(b), 8.4(2)(c), 8.4(2)(d), 8.4(2)(e), 8.4(2)(f), 8.4(3), 8.4(4), 9, 9(1), 9(1)(a), 9(1)(b), 9(1)(c), 9(1)(d), 9.1, 9.2, 9.2(1), 9.3, 9.3(1), 9.4, 9.4.1, 9.4.1(1), 9.4.1(2), 9.4.2, 9.4.2(3)
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
30 September 2022
Background
The Applicant is a 30-year-old man who is a citizen of New Zealand. He first arrived in Australia in February 2015, although he returned to New Zealand for up to several months at a time between 2016 and 2017 (G27/93). After 2018, he did not leave Australia until he voluntarily returned to New Zealand this year (G12/70).
Before arriving in Australia, the Applicant had a short criminal history in New Zealand, comprising three offences in 2012 for disorderly behaviour, burglary, and breach of community work. He has an extensive criminal history in Australia.
On 18 May 2021, the Applicant was sentenced by His Honour Judge MacLean in the District Court of Western Australia for seven offences including “aggravated home burglary and commit”, “steal motor vehicle” and five other “stealing” offences. He was sentenced to a term of two years and three months’ imprisonment for the aggravated home burglary offence, and a cumulative sentence of imprisonment of four months for the “steal motor vehicle” offence (E2/5-6). I will refer to these offences as the Cancellation Offences.
Consequently, the Applicant was sent a letter dated 5 July 2021 advising him that his Class TY Subclass 444 Special Category (Temporary) visa (Visa) had been cancelled under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) (G7) (Cancellation Decision).
The basis of the Cancellation Decision was that the Applicant did not pass the character test because he had a substantial criminal record and was currently serving a full-time sentence of imprisonment for an offence against a law of the Commonwealth, a State or a Territory. The 5 July 2021 letter advising the Applicant of the Cancellation Decision stated that the Applicant could make representations to seek revocation of the Cancellation Decision.
In a request dated 23 July 2021, the Applicant requested revocation of the Cancellation Decision. He provided a personal circumstances form and supporting evidence including letters of support and certificates showing training courses he had completed (G9 – G24).
After considering the Applicant’s representations, on 22 June 2022, a delegate of the Minister decided not to revoke the Cancellation Decision under s 501CA(4) of the Migration Act (G3/12). This is the Reviewable Decision currently before me.
The Applicant was notified of the Reviewable Decision on 27 June 2022 when it was delivered to him by hand in prison (G2/7; G3/9).
On 27 June 2022, the Applicant lodged an application in the General Division of this Tribunal seeking a review of the Reviewable Decision (G2). Therefore, the Applicant filed his application for review within the nine-day period prescribed by s 500(6B) of the Migration Act.
Section 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the day on which an applicant is properly notified in accordance with s 501G(1) of the Migration Act. Although the Applicant has returned to New Zealand and is no longer in the migration zone, he was in Australia at the time of the decision and application. Therefore, the matter is expedited, and I must hand down a decision within 84 days. The 84-day period started running from 27 June 2022, meaning that I must hand down a decision on or before 19 September 2022.
Issues
The issues that I need to determine are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether I am satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).
The hearing and the evidence
The hearing of this application was by MS Teams due to the Applicant being in New Zealand.
The Applicant was self-represented, and Mr Burgess represented the Respondent.
The hearing commenced on 2 September 2022. However, Mr Burgess raised a concern about domestic violence considering the High Court’s decision in Nathanson v Minister for Home Affairs [2022] HCA 26. The concern was that the Respondent’s statement of facts, issues and contentions (SFIC) had indicated that there was no evidence and therefore no issue of domestic violence. However, subsequent materials produced under summons suggested that domestic violence may now be an issue, and that material would need to be put to the Applicant. Mr Burgess indicated that the Respondent would consent to an adjournment to give the Applicant an opportunity to consider and put on any evidence concerning domestic violence.
The Applicant also indicated that he wanted to call his fiancée’s mother as a witness, but there was no written statement from her, as required by s 500(6H) of the Migration Act.
To afford procedural fairness to the Applicant, I granted the adjournment until 12 September 2022. This would allow the Applicant to consider the evidence relating to domestic violence, to file reply evidence, and to obtain and file a statement from his fiancée’s mother.
The matter resumed on 12 September 2022. The Applicant filed a reference letter from his fiancée’s mother, DK, during the adjournment period, but did not file any evidence or statements regarding domestic violence.
The Applicant gave oral evidence at the hearing and was cross-examined, followed by his fiancée, KT, who gave evidence by telephone.
I admitted the following documents into evidence at the hearing:
(a)Letter of support sent by email from the Applicant’s fiancée’s mother, DK, dated 7 September 2022 admitted into evidence on 12 September 2022 (Exhibit A1);
(b)Section 501 G-Documents, labelled G1 to G28, comprising pages 1 to 116 (Exhibit 1); and
(c)Summons Bundle, labelled 1 to 4, comprising pages 1 to 308 (Exhibit 2).
Prior to the hearing the Respondent filed a SFIC on 9 August 2022. The Applicant did not file a SFIC.
Legislative Framework
Migration Act
Section 501(3A) of the Migration Act provides that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6)(a) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(Original emphasis.)
Section 501CA of the Migration Act further provides, in part:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
(Original emphasis.)
Direction No 90
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 8 March 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 90) under s 499 of the Migration Act, which commenced operation on 15 April 2021. This Direction replaced the previous Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018).
Paragraph 5.1 of Direction No 90 sets out “[o]bjectives”, with para 5.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction No 90 sets out “[p]rinciples” which “provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA”. The principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Informed by the principles set out in para 5.2 of Direction No 90, the decision-maker (in this case, the Tribunal – see definition of “decision-maker” in para 4(1) of Direction No 90) must consider the primary considerations listed in para 8 of Direction No 90, and the other considerations listed in para 9 where relevant (para 6 of Direction No 90).
Specifically, para 8 of Direction No 90 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia;
(4)expectations of the Australian community.
Paragraph 9 of Direction No 90 lists other considerations to be considered as follows:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests
Guidance as to how a decision-maker is to apply the considerations in
Direction No 90 can be found in para 7, “[t]aking the relevant considerations into account”, which provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
Does the Applicant pass the character test?
The Minister may revoke the Cancellation Decision if the Minister is satisfied that the Applicant passes the character test (s 501CA(4)(b)(i) of the Migration Act).
Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act.
A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act).
As noted in the “background” section above, on 18 May 2021, the Applicant was sentenced in the District Court of Western Australia to a term of two years and three months’ imprisonment for the “aggravated home burglary and commit” offence, and a cumulative sentence of imprisonment of four months for a “steal motor vehicle” offence (E2/5-6; G6/38).
The Applicant has therefore been sentenced to a term of imprisonment of 12 months’ or more, and as a result, does not pass the character test by operation of s 501(7)(c) of the Migration Act. As the Applicant fails the character test, the statutory power to revoke will only be enlivened if there is “another reason” why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
Is there another reason why the Cancellation Decision should be revoked?
Protection of the Australian community (paras 8(1) and 8.1 of Direction No 90)
Paragraph 8.1(1) of Direction No 90 provides that:
(1)When considering protection of the Australian community, decision-makers should keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of Direction No 90 then provides:
(2)Decision-makers should also 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.
Nature and seriousness of the conduct (paras 8.1(2)(a) and 8.1.1(1) of Direction No 90)
Paragraph 8.1.1(1) of Direction No 90 provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
The Applicant was convicted of “unlawfully assault and thereby did bodily harm with circumstances of aggravation” on 14 August 2019. This offence was committed on 11 June 2019 and involved the Applicant hitting his former partner with a torch several times, including twice when his partner was on the ground. For the reasons I set out below under the consideration of family violence, this offence meets the definition of “family violence” and therefore is a type of offence described in Direction No 90 as being “very serious” (para 8.1.1(1)(a)(iii)).
The Applicant has also committed numerous general offences that can be characterised as being of a less serious nature. These include offences such as “obstructing public officers”, “disorderly behaviour in public”, numerous “stealing” and dishonesty offences such as “gains benefits by fraud”, convictions for stealing motor vehicles on two occasions, and numerous breaches of court-imposed orders.
The Applicant has approximately seven traffic/driving related offences. This offending occurred between July 2015 and November 2018. These offences include “possessed with intent to deceive a licence or label”, “stop vehicle without appropriate lights illuminated”, “failed to display P plate”, “no authority to drive (night restricted 1A novice driver)”, three offences for “no authority to drive – cancelled” (E2/9-10). This Tribunal has often regarded driving offences as being serious (see Senior Member Poljak in Kohli and Minister for Immigration and Border Protection [2017] AATA 1326 at [20]). The Applicant’s driving and traffic offences are, however, less serious than many driving offences because, for example, they did not involve reckless or dangerous driving. However, these types of road rules are designed to ensure road safety, for example, that drivers are properly qualified and licenced. The type of traffic/driving related offences committed by the Applicant show a disregard for lawful authority and a disregard for the safety of other innocent road users.
One of the Cancellation Offences was the offence of “aggravated home burglary and commit”. This offence involved the Applicant breaking into a mission for vulnerable youth during the night, and stealing items from the kitchen, communal living area. He also stole a car with keys he found on a coffee table which he used to drive away with the stolen items (E2/104). When sentencing the Applicant on 18 May 2021, the sentencing Judge, His Honour MacLean DCJ, described the offence as being very serious (G6/34):
The offence of aggravated burglary is a very serious offence and it’s serious because the commission of it represents an invasion of other people’s property and threatens their sense of security in circumstances where we are all entitled to expect that when we go to bed of an evening, that we will wake up in the morning without being visited by someone who persistently and carefully works through our premises, identifying and stealing things of value from them.
You breached that sense of security by way of your deliberate and careful conduct on the evening after identifying these premises as being ripe for pickings by you. And it makes it serious – the fact that it took place at night makes it more serious. The fact that there are people asleep inside the buildings makes it more serious.
Your conduct was driven by the entirely selfish motive to acquire property that you could then convert to something that you might exchange for methamphetamine and that demonstrates a callous disregard on your part for the property of others.
The conduct was also serious by reason of the fact that when people are asleep in their house and have property there and someone visits them to steal that property, if they are awake, there’s a real risk of confrontation taking place, because people tend to protect their property when some unwelcome stranger is in the house at night, stealing from them, and that risk of confrontation was increased, given the number of people that were asleep in the house that night.
Paragraph 8.1.1(1)(b) of Direction No 90 states that crimes against vulnerable members of the community are “serious”. With respect to the “aggravated home burglary and commit”, His Honour MacLean DCJ, also described the people the Applicant stole from as being vulnerable (G6/34-35):
On each occasion, the property that was taken by you represented something of significance to the person that you stole from, and given the nature of the accommodation that is – it’s premises provided by an entity called youth with a mission, one might reasonably surmise and conclude, as I do, that the people who are asleep in there were already economically vulnerable and might experience a degree – more deprivation by having property taken from them than if it were a commercial premises or someone more capable of bearing the loss that you selfishly inflicted upon them by taking the property in the circumstances that you did.
I now turn to the sentences imposed by the courts (para 8.1.1(1)(c) of Direction No 90). The Applicant’s traffic/driving related offences which I outlined above were dealt with by way of fines and disqualifications, which suggests they are of a less serious nature. Also, the Applicant has committed numerous general offences such as breaches of court-imposed orders, stealing and dishonesty offences which were dealt with by way of community-based orders, fines, no further punishment due to time spent in custody, or due to the operation of s 11 of the Sentencing Act 1995 (WA) which effectively provides that a person can be charged and convicted of each offence, but is not to be sentenced twice on the same evidence.
The Applicant received conditional suspended imprisonment orders for several offences he was sentenced for on 20 February 2020 including “stealing”, “burglary and commit offence”, “steal motor vehicle to use without the consent of the owner” and two breaches of community-based orders, which suggests this offending was more serious.
On 18 May 2021, when the Applicant was sentenced for seven offences in the District Court of Western Australia which included the Cancellation Offences, he received a custodial sentence of imprisonment. He was sentenced to a term of two years and three months’ imprisonment for the “aggravated home burglary and commit” offence, and a further cumulative sentence of imprisonment of four months for the “steal motor vehicle” offence (E2/5-6; G6/38). The sentencing Judge, His Honour MacLean DCJ observed that (G6/35), “this offending is made more serious by reason of the fact that you were on a suspended imprisonment order at the time you committed this serious offence”. His Honour further stated that, “immediate imprisonment is the only appropriate sentencing outcome” (G6/37). His total sentence was two years and seven months’ imprisonment. At the time of sentencing, the Applicant was 28 years of age. Although this sentence was far less than the statutory minimum of 20 years (G6/34), I find that it nevertheless indicates that this offending was serious.
The Applicant was also sentenced on 28 June 2021 for 23 offences, many of which were dealt with by fines and no sentence due to the operation of s 11. However, the Applicant was sentenced to two months concurrent imprisonment for “gains benefit by fraud”, six months cumulative imprisonment for “burglary and commit offence in dwelling” and concurrent sentences of imprisonment of between six and 10 months for breaches of five conditional suspended sentences (E2/3-4; 147). The Magistrate commented, with respect to the breaches of the five conditional suspended sentences that (E2/145), “given that there was simply lack of compliance, and then reoffending in a relatively short period of time after that sentence was imposed, it is appropriate that the whole of those sentences do come to be served immediately”. The overall result was an additional six months’ imprisonment added to the sentence imposed by His Honour MacLean DCJ. Again, these comments, and the necessity for the Applicant to serve further time is indicative of the seriousness of the Applicant reoffending whilst subject to suspended sentences.
I now turn to the frequency of the Applicant’s offending, and whether there is any trend of increasing seriousness (para 8.1.1(1)(d) of Direction No 90). The Applicant has a lengthy criminal history, and he has frequently offended, having committed approximately 53 criminal offences and seven traffic/driving related offences between July 2015 and August 2020. Overall, his offences are similar and consistent, however the prison sentences imposed for offences committed between August 2020 and June 2021, suggest a slight increase in seriousness, given the persistence of the Applicant’s offending.
Given the number of convictions, fines imposed, numerous court attendances and the Applicant’s custodial sentence of imprisonment, I find that there is some cumulative effect of repeat offending (para 8.1.1(1)(e) of Direction No 90).
There is no evidence that the Applicant has provided false or misleading information to the Department, such as failing to disclose criminal convictions on an incoming passenger card (para 8.1.1(1)(f) of Direction No 90). Although the Applicant travelled between Australia and New Zealand on four occasions between 2016 and 2017, I do not have copies of his incoming passenger cards in the materials before me.
Paragraph 8.1.1(1)(g) of Direction No 90, requires me to consider whether the Applicant previously received any formal or other written warnings that further offending may affect his migration status. He has not received any warnings of this nature.
The Applicant has a lengthy criminal history of frequent offending over a relatively short period of approximately five years, and there is some cumulative effect of repeated offending. He has not offended after being warned and has not intentionally provided misleading information to the Department. His driving/traffic offences and some of his general offences are of a lower degree of seriousness, as indicated by the nature of those offences and the fines imposed. However, the Applicant has committed more serious offences including the “unlawful assault and thereby did bodily harm” offence, which was an assault against his former partner and constituted family violence. His more serious offending included the offences for which he was sentenced to an additional six-month term of imprisonment on 28 June 2021, including “gains benefit by fraud”, “burglary and commit offence in dwelling” and breaches of five conditional suspended sentences. Additionally, his “aggravated home burglary and commit” offence which was one of the Cancellation Offences was very serious as indicated by the sentence imposed, the sentencing Judge’s comments and the vulnerability of the people the Applicant stole from.
On balance, I find that para 8.1.1 of Direction No 90, the nature and seriousness of the conduct, weighs strongly against the revocation of the Cancellation Decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No 90)
Paragraph 8.1.2(1) of Direction No 90 provides:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of Direction No 90 provides, in part, in relation to assessing risk:
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i) information and evidence on the risk of the noncitizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Nature of the harm (para 8.1.2(2)(a) of Direction No 90)
Broadly speaking, I am required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct. This firstly requires a consideration of the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or serious conduct (para 8.1.2(2)(a) of Direction No 90).
The Applicant’s use of methamphetamine has been the primary contributing factor to his offending. For example, he has committed offences such as stealing, aggravated burglary and fraud offences to fund his methamphetamine use.
The Commonwealth of Australia National Drug Strategy 2017-2026 (Department of Health 2017), pages 4-5, lists the direct and indirect harms that drugs cause to the Australian community, families and individuals. These include injury, chronic conditions and preventable diseases, mental health problems, violence and other crime, engagement with the criminal justice system more broadly, contribution to domestic and family violence and healthcare and law enforcement costs. The National Drug Strategy also states that “[s]ome of the harms that can arise from the use of methamphetamines and other stimulants include mental illness, cognitive impairment, cardiovascular problems and overdose” (page 30).
General offending such as entering a person’s home without consent and stealing items, even in the absence of any violence, can cause a range of harms, including psychological harms to victims, and increased costs to the community including increased insurance premiums. There is, as the sentencing Judge His Honour MacLean DCJ indicated when sentencing the Applicant for the Cancellation Offences which included the “aggravated burglary and commit” offence, “a real risk of confrontation taking place, because people tend to protect their property when some unwelcome stranger is in the house at night” (G6/34). I agree that there is a real risk of physical confrontation which could result in a range of physical injuries, impairment or even loss of life.
If the Applicant was to commit a further family violence offence, the harm that could result could include psychological harm, serious physical injury, impairment or even loss of life.
The harms that can result to members of the public (including innocent road users and pedestrians) from driving/ traffic related offences are potentially very serious, and include physical injuries or loss of life, and possibly psychological harm.
Likelihood of engaging in further criminal or other conduct: Information and evidence on the risk of reoffending and evidence of rehabilitation (para 8.1.2(2)(b) of Direction No 90)
Next, I am required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence (para 8.1.2(2)(b)(i) and sub-para (ii) of Direction No 90).
The Applicant has a lengthy history of offending. He has frequently offended over a five-year period between 2015 and 2020. He has reoffended despite fines and being given the opportunity of community-based orders (with a poor history of compliance). He has reoffended despite receiving suspended sentences of imprisonment, with the prospect of imprisonment if breached (which he did five times). He has also committed offences whilst being on bail (transcript/38) and has breached bail conditions (transcript/34). This history of offending suggests a likelihood of future reoffending. Indeed, when sentencing the Applicant for the Cancellation Offences, His Honour MacLean DCJ stated (G6/36):
You do present, in my view, as being a risk to the community. The pre-sentence report records this observation of you, that your pattern and frequency of offending suggests that you have a total lack of consequential thinking and that if your basic needs are not being met, you will not hesitate to offend in order to survive.
The pre-sentence report, which is dated 25 January 2021, also records that you failed to express any victim empathy and it’s described your offending as opportunistic and records there accurately, in my view, that anybody could be a potential victim of yours.
The report also records that you have a poor history of compliance with the community supervision and although you speak of undertaking some course and developing some insight, so far as your thinking goes as of 25 January 2021 went, the report records that you had had no engagement in programmatic intervention due to your disengagement and there was difficulty from Community Corrections in contacting you, with no fixed address.
As I mentioned above, the Applicant’s drug use appears to be the primary contributing factor to his offending. His evidence at the hearing was that he first tried methamphetamine in New Zealand. When he came to Australia, he was in a relationship with someone who was a heavy methamphetamine user and started to use socially in 2016 and 2017 when he was coming and going from Australia. After the Applicant’s grandmother died, he started using methamphetamine more heavily and it became a daily habit, where he used approximately half a gram a day around or after 2018. He admitted that his drug use “got to a point where, I think, I used her passing as an excuse for what I was doing” and that, “it was just that I was addicted and so, I got stuck in that, sort of, mind frame for a long time as well” (transcript/16-17). He started injecting methamphetamine in approximately 2019, although stated that “it was very seldomly that I would use needles” (transcript/17). When asked about the connection between his drug use and his offending, the Applicant stated, “yes, it’s the only connection, I think” (transcript/18). In his evidence at the hearing the Applicant stated that his drug use had a “domino effect” on his life. He went from working full time hours in hospitality, to losing his licence, getting caught driving while disqualified, finding it easier to stay home and smoke drugs, and to being homeless (transcript/17-18).
There is no formal psychological risk assessment before me. However, when the Applicant was assessed in prison on 9 September 2021, Prison Treatment Assessors assessed the Applicant as being a high risk of general offending and a moderate risk of violent offending. Treatment Assessors recommended that the Applicant complete the Stopping Family Violence Program and the Pathways Program, which is a program addressing addiction and offending (E2/302-305; 306-308).
The Applicant refused to participate in both programs. At the hearing he explained that he did so because “I was there [in prison] on burglary charges … the only time I’ve ever been violent in a relationship was when I’ve been defending myself” (transcript/19). He also explained at the hearing that he knew he needed to complete the Pathways Program but that he did not want to stay in prison to complete the program (transcript/21-22). His Parole Review Report confirms that he was concerned about the implications of the program running past his earliest eligibility date and that “he would have happily completed the treatment assessed programs that were recommended of him, if they were available prior to his EED” (E2/295). At the hearing the Applicant explained that he refused to do the Pathways Program, “because it was running past my parole date and so that’s why I refused to do that, I just wanted to get out of jail, like no one wants to stay in jail just to do a course” (transcript/19).
The Applicant’s Parole Review Report also states that the Applicant had “completed several sessions of Narcotics Anonymous and Alcoholics Anonymous” in prison. At the hearing the Applicant thought he had attended Narcotics Anonymous for more than 12 weeks (transcript/23). The Applicant also stated at the hearing that he had completed the 12 step-program and the “PAST” drug and alcohol program in prison. He stated that he did not learn very much from the 12-step program (part of Narcotics and Alcoholics Anonymous). However, he stated that he benefited more from the PAST program. There is no confirmation of the Applicant completing this program in the materials, apart from a reference to the Applicant starting a drug and alcohol course in March 2022 (E2/295). I infer this was most likely a reference to the PAST program and I accept the Applicant’s evidence that he completed the program. The Applicant’s evidence was that in the PAST program he learnt about “the mental side of addiction” and that “I’ve been clean now since I got to jail and up till now so I would say that course did have some impact” (transcript/23-24). The Applicant also stated that he no longer wanted to use drugs because drugs had ruined his life (transcript/24). A period of abstinence in prison and until the present time is likely to assist the Applicant not to resume his drug use. However, I am concerned that he has not undertaken intensive enough treatment for his methamphetamine addiction, and that there is a heightened risk of relapse without intensive treatment intervention. The Applicant also appears to have no plan, such as treatment in the community, to help him to abstain from drug use if he is released into the Australian community.
The Applicant was released on parole on 28 April 2022, with the main reason being to facilitate his removal from Australia to New Zealand (E2/299). At the hearing the Applicant said that he is currently completing parole in New Zealand in the form of a returning offender’s order until July 2023. His parole conditions include undergoing weekly drug tests. The Applicant also stated that he was starting a drug and alcohol program the week after the hearing in New Zealand, although there are no details before me about this program. Should he be permitted to return to Australia, this period of release under supervision in the community in New Zealand with drug testing may provide him with some assistance, motivation and/or strategies not to revert to drug use.
The Applicant also has support from friends in the community and has provided numerous letters of support (G14/73-G23/84). Having the support of pro-social persons in the community can be a factor which assists with reintegration into the community, including to abstain from drugs. However, based on the length of time these friends have stated they have known him for (between three years, and curiously ten years), this support was present when the Applicant was using methamphetamine and committing offences and did not deter him. I am therefore cautious about whether this support would reduce the likelihood of the Applicant reoffending in the future. Additionally, the Applicant does not have any family members in Australia to help support and guide him, with his immediate family members being in New Zealand including his mother, father, stepfather and four siblings.
The Applicant has strong support from his fiancée, KT, and if he can return to live in Australia, KT’s mother has offered them accommodation at her house. I discuss the length of their relationship below under “links to the Australian community”. KT said in his evidence that prior to their relationship commencing he knew the Applicant for approximately five years as friends. However, I am concerned that their friendship during that time did not stop the Applicant from drug use and offending. The couple have been in a relationship for approximately two years, which commenced shortly before the Applicant went to prison. Being engaged to KT, and the prospect of permanent separation from KT if he returns to Australia and reoffends, together with strong support from KT’s mother, may provide the Applicant with motivation not to use drugs and reoffend. The Applicant also has prospects of immediate employment with a friend who has known him for approximately five years (G14/73). Employment would be a further protective factor.
In summary, there are some factors that may reduce the likelihood of the Applicant reoffending, including his period of abstinence from drugs since being in prison, his parole supervision (including courses and drug testing) in New Zealand, undertaking Narcotics and Alcoholics Anonymous and the PAST program, support from friends, his fiancée and fiancée’s mother in the Australian community, accommodation with his fiancée’s mother, and the likely prospect of employment.
However, there are more factors that suggest there is a likelihood of the Applicant committing further offences. These factors include his:
·Lengthy criminal history, breaches of court-imposed orders, bail and suspended sentences and the lack of deterrence of fines, court-imposed penalties and the prospect of imprisonment.
·Apart from his fiancée and fiancée’s mother, the Applicant has minimal support in the Australian community. The friends in the Australian community who have written letters of support have failed to be protective in the past.
·His being assessed as a high risk of general offending and a moderate risk of violent offending by Prison Treatment Assessors in September 2021 and despite this assessment he did not complete intensive treatment programs in prison.
·Although he has undertaken some voluntary rehabilitation and no longer wants to use drugs, those factors alone are not intensive or protective enough given that Applicant had a significant, daily methamphetamine addiction, which was the primary factor in his offending.
·He does not have a plan in place about how he will abstain from methamphetamine use if he is released into the community such as enrolment or contact with counsellors or rehabilitation providers.
My overall assessment, based on the evidence before me, is that there is little to mitigate the findings of Prison Treatment Assessors that the Applicant is a high risk of general offending and a moderate risk of violent offending.
I therefore find that para 8.1.2 of Direction No 90, being risk to the Australian community should the Applicant commit further offences, weighs strongly against the revocation of the Cancellation Decision.
Summary on para 8.1 of Direction No 90
I have found that para 8.1.1 and para 8.1.2 of Direction No 90 both weighed strongly against revocation of the Cancellation Decision. Therefore, overall, I find that primary consideration 8.1, being the protection of the Australian community, weighs strongly against the revocation of the Cancellation Decision.
Family violence committed by the non-citizen (paras 8(2) and 8.2 of Direction No 90)
Paragraph 8.2 of Direction No 90 requires decision-makers to have regard to family violence committed by the non-citizen:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i. the extent to which the person accepts responsibility for their family violence related conduct;
ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii. efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the noncitizen's migration status, should the non-citizen engage in further acts of family violence.
Family violence is defined in the interpretation section of Direction No 90 at para 4(1), which provides, in part:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
a)an assault; or
b)a sexual assault or other sexually abusive behaviour; or
c)stalking; or
d)repeated derogatory taunts; or
e)intentionally damaging or destroying property; or
f)intentionally causing death or injury to an animal; or
g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
j)unlawfully depriving the family member, or any member of the family member's family, or his or her liberty.
(Original emphasis.)
Paragraph 8.2(2) of Direction No 90, stated above, sets out the circumstances where this primary consideration will be relevant. Firstly, it is relevant where the Applicant has been convicted of an offence, has been found guilty, or has had charges proven that involve family violence (para 8.2(2)(a)).
However, according to para 8.2(2)(b) this primary consideration will also be relevant where “there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence”.
A Detected Incidents Report made by Western Australia police recorded that on 27 December 2018, police issued the Applicant with a 72-hour police order. The report recorded that the Applicant and the victim (whom the Applicant confirmed at the hearing was his former partner, RB), had been in a relationship for approximately two weeks. They were in RB’s car and started to argue over a pair of jeans. Both exchanged punches and the Applicant admitted to trying to hit RB with a small wrench but was not sure if it made contact. The report stated that there was insufficient evidence to prefer charges. Police recorded “No” next to the question, “Is the victim frightened?” in the risk factors section of the incident report (E2/18).
The Applicant recalled this incident, but said he was acting in self-defence (transcript/60). Also, this incident did not result in any formal charges. I am not satisfied that the Detected Incidents Report is not sufficiently authoritative evidence of family violence. Additionally, Mr Burgess conceded at the hearing that there was evidence in the report that the victim was not fearful and there was no evidence of coerciveness or control, and so he conceded that the definition of family violence was most likely not satisfied for this incident (transcript/57).
However, another incident on 11 June 2019 resulted in the Applicant being convicted of “unlawfully assault and thereby did bodily harm with circumstances of aggravation” in the Perth Magistrates Court on 14 August 2019 (E2/8). At the hearing the Applicant confirmed that this incident also involved his former partner, RB. The statement of material facts records that the victim (RB) and the Applicant were seeking shelter in an undercover carpark in a shopping centre. The Applicant was seen standing over the victim by shopping centre security. When the victim attempted to get up, the Applicant struck him over the head with a torch, which caused a cut to his forehead and right eyebrow. The victim was also struck in the elbow with the torch whilst trying to defend himself (E2/72).
A Treatment Assessment Report created on 9 September 2021, records an explanation given by the Applicant about this offence to the report writer at that time. It records that the Applicant had been arguing with his boyfriend and that the Applicant stated that he had “beat the shit out of him” (that is, his partner RB) to prevent RB from injecting him with a used methamphetamine needle (E2/302).
At the hearing the Applicant’s evidence about this incident was that he and RB had agreed that they would give up methamphetamine, but when he returned to the car, RB was using the drug. His evidence was that RB “was trying to stab me with it [the needle], like attack me with it”. The Applicant’s evidence was that he was trying to defend himself, although he admitted that he hit RB twice when he was on the ground.
Nevertheless, instead of claiming he acted in self-defence, the Applicant pled guilty to the offence of “unlawfully assault and thereby did bodily harm with circumstances of aggravation” (transcript/20-21; 34; 39-40).
The Applicant subsequently entered into a bail undertaking and was subject to protective bail conditions “not to approach, contact or act in an intimidatory, offensive or emotionally abusive manner” towards RB. However, the Applicant breached these bail conditions on 5 July 2019, when police located him at a place where RB was present. The Applicant was recorded as explaining to police, “we are in love” (E2/77). This resulted in a conviction for “breach of protective bail conditions” in the Perth Magistrates Court on 14 August 2019 (E2/8).
At the hearing the Applicant was equivocal about whether he and RB were in a relationship at the time of the offence, saying that he was not sure if they were still together, although earlier in his evidence he had stated they were together for “a year and a bit” (transcript/34). I infer from the timeline and the Applicant’s explanation to police, that they were in love the following month, that the Applicant was most likely still in a relationship with RB at that time. RB was the intimate partner of the Applicant, and they lived together at times including living in temporary accommodation together and living in a car together. The offence was a violent assault whereby the Applicant bashed RB with a torch, including when he was on the ground, injuring him and with security guards from the shopping centre having to intervene. I infer that RB would have been fearful during this assault, and I note that the Magistrate imposed protective bail conditions to protect RB. I therefore find that the definition of family violence is met, and that the Applicant’s assault on RB was family violence.
This conduct cannot be said to be frequent, nor can it be regarded as having a cumulative effect (para 8.2(3)(a) and (b) of Direction No 90).
The Applicant has not undertaken any rehabilitation for family violence and there is no evidence of any attempts to address factors which contributed to that conduct (para 8.2(3)(c) of Direction No 90). The Applicant was recommended by Prison Treatment Assessors, in a Treatment Assessment Report created on 9 September 2021, to undertake a Stopping Family Violence Program (E2/305). However, the Applicant refused to participate in the program (E2/249). His evidence at the hearing indicates that he does not appreciate that his conduct was family violence (transcript/19-20):
APPLICANT: So the first one, the stopping family violence, I refused to participate in that one because I was there on burglary charges, so I didn’t – you know, like despite what statement of summary or facts or anything, like the only time I’ve ever been violent in a relationship was when I’ve been defending myself.
You know, like – and I am not one to usually call the cops, I don’t call the police and I don’t want to deal with that because, you know, being a heavy drug user, you just don’t want cops around. So like, every time I defend myself, I get the cops called on me and it’s like – yes, it’s hard.
SENIOR MEMBER: Yes, okay. So that – how do you – or why do you think you were recommended to do the stopping family violence program?
APPLICANT: When I first went and see the lady that – the assessor, she asked me if I wanted to do it and at the time, I said yes. And then, I changed my mind halfway through. I don’t know why – I think I’ve got one, occasioning bodily harm, while I was in a relationship with someone. But like I said, that was like a different – I don’t – like even though it may look like I’m a violent person and stuff like that, I’m actually, I’m really not, like if I am violent it is because I am defending myself but yes, I am not good at explaining things.
There is no evidence before me that the Applicant has not committed further acts of family violence after being warned about the consequences of doing so (para 8.2(3)(d) of Direction No 90).
Considering the factors above, including that there is only one incident that meets the definition of family violence, that there is no cumulative effect, and balancing the lack of insight of the Applicant into this offending, I find that this primary consideration weighs moderately against revocation of the Cancellation Decision.
The best interests of minor children in Australia affected by the decision (paras 8(3) and 8.3 of Direction No 90)
Paragraph 8(3) of Direction No 90 states that in making a decision under s 501CA(4), “the best interests of minor children in Australia” is a primary consideration. Further, para 8.3(1) of Direction No 90 states that decision-makers must determine whether the decision under review is, or is not, in the interests of a child affected by the decision.
There were some brief references to minor children in the material before me. The Applicant’s close friend LK wrote an undated letter of support which the Applicant sent to the Department with his revocation request. In the letter, LK stated that she was in a “very toxic relationship” and that the Applicant supported and gave accommodation to LK and her children for a three-month period (G20/80). I asked the Applicant about this at the hearing. He confirmed that LK and the children came to live with him and his partner for “a couple of months” due to issues with LK’s partner (the children’s father). The Applicant confirmed that the children were approximately six or seven years old, and four years old respectively. He stated that he was “pretty close with the kids” and mentioned that he had moved in with LK “for a little bit”. He stated that he had spoken to the children on Facetime “a couple of times” since returning to New Zealand (transcript/25-26).
There is another letter dated 31 May 2022 from, SE, who is another friend of the Applicant’s (G22). SE said that she has been friends with the Applicant for approximately seven years, and that her eldest son, H, had met the Applicant when he was three years old. SE stated that the Applicant had a “strong uncle/nephew bond with [her] son”. I asked the Applicant about H at the hearing. The Applicant estimated that the child was seven or eight years old. He confirmed that he had been in contact with SE, but that, “it’s been a while” since he spoke to H (transcript/43).
These relationships are non-parental, and that the children appear to have parents who care for them. Based on the information before me, the Applicant does not appear to have frequent contact with the children. However, overall, there is insufficient information before me to determine how the best interests of these children would be affected by my decision.
I therefore give this primary consideration neutral weight.
Expectations of the Australian community (paras 8(4) and 8.4 of Direction No 90)
A decision-maker must consider the expectations of the Australian community when making a decision under ss 501 or 501CA.
These expectations are set out in para 8.4 of Direction No 90, which provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
Thus, I must give effect to the “norm” stipulated in para 8.4(1) of Direction No 90, being that the Australian community expects non-citizens to obey Australian laws whilst in Australia. The Applicant has breached this expectation by committing numerous offences in the relatively short time that he has resided in Australia. He has an extensive criminal history in Australia, having committed approximately 53 criminal offences and seven traffic/driving related offences. Additionally, as I discussed above, the Cancellation Offences involved what the sentencing Judge, His Honour MacLean DCJ, described as the “very serious offence” of aggravated burglary.
As is evident from the reference to the “norm” in para 8.4(1) of Direction No 90, I am being told unequivocally what the community’s expectations are. Further, para 8.4(4) of Direction No 90 confirms more explicitly that the Australian community’s expectations are what the Government deems them to be, because decision-makers are directed to proceed based on the Government’s views about community expectations without independently assessing them.
In this regard, I agree with the observations of Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143, which were adopted by Deputy President Boyle in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208 (Wightman). In Wightman, Deputy President Boyle stated, at [85]–[86]:
… Direction 90 superseded Direction 79 on 15 April 2021. Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (NTTH) at [194] noted that the provisions of Direction 90 contain generally similar wording to the corresponding provisions in Ministerial Direction No 65 (Direction 65), the predecessor to Direction 79. Those corresponding provisions in Direction 65 were considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (FYBR).
Senior Member Morris at [195] and [196] of NTTH summarises the view expressed by the Full Court in FYBR and the adoption of some of the language of the judgment in FYBR into Direction 90 as follows:
195.It was the Court’s view that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not what a decision-maker may derive by some other assessment or process of evaluation.
196.It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR. ...
(Original emphasis and footnotes omitted.)
Further detail about the Australian community’s expectations with respect to certain types of conduct, is given in para 8.4(2) of Direction No 90. That paragraph states that the Australian community expects that the Australian Government should cancel a non-citizen’s visa if they raise serious character concerns, including through specific conduct listed in sub-paras 8.4(2)(a)–(f). The types of specific conduct listed include acts of family violence. As I discussed above, the Applicant has engaged in conduct that meets the definition of family violence. Therefore, as this type of offending raises serious character concerns, the Australian community would expect the Applicant’s Visa to remain cancelled.
Paragraph 8.4(3) of Direction No 90 further confirms that the Australian community’s expectations are what the Government deems them to be, by effectively telling decision-makers that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
I therefore find that the Applicant has breached this expectation, including by engaging in serious conduct, and that the Australian community would expect that the Applicant should not be permitted to remain in Australia. Consequently, the expectation of the Australian community would be that the Applicant’s Visa should remain cancelled (para 8.4(1) of Direction No 90).
I am also guided by the principle in para 5.2(4) of Direction No 90 which provides, in part, that “Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.” The Applicant has only been in Australia for approximately seven years, and in 2016 and 2017 he spent approximately nine months in New Zealand (G27/93). I find that Australia would have less tolerance for the Applicant’s conduct in these circumstances than if he had resided in Australia for many years, or from a young age.
I therefore find that para 8.4 of Direction No 90, being the expectations of the Australian community, weighs strongly against the revocation of the Cancellation Decision.
Other considerations (para 9(1) of Direction No 90)
Paragraph 9(1) of Direction No 90 provides:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests
International non-refoulement obligations (paras 9(1)(a) and 9.1 of Direction No 90)
I am required to consider whether Australia’s international non-refoulement obligations arise on any of the submissions, material or evidence before me (para 9.1 of Direction No 90). They do not.
Consequently, I do not regard this other consideration to be relevant.
Extent of impediments if removed (paras 9(1)(b) and 9.2 of Direction No 90)
Paragraph 9.2(1) of Direction No 90 provides:
(1)Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen’s age and health;
b)whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
As I mentioned in the “background” section above, the Applicant is currently in New Zealand, having requested voluntary removal upon his release on parole on 28 April 2022 so that he did not have to remain in immigration detention in Australia pending the outcome of these proceedings (E2/299; G12/70).
The Applicant is 30 years of age. He has asthma for which he requires an inhaler. He has an egg allergy but does not require an epi-pen (transcript/14). He is otherwise in good physical health. The sentencing remarks for the Cancellation Offences refer to the Applicant having previously been diagnosed with depression and anxiety (G6/37). I asked the Applicant about his mental health at the hearing. He said that his mental health had improved since that time, and confirmed he was managing it himself and that he was not taking any medication (transcript/15).
New Zealand is broadly comparable to Australia and there does not appear to be any language or substantial cultural barriers that would constitute an impediment to the Applicant. The Applicant will also have access to the same social, medical, and economic supports as other citizens of New Zealand, which are equivalent to those available in Australia (Webb v Minister for Home Affairs [2020] FCA 831 at [98]; Uelese v Minister for Immigration and Border Protection [2016] FCA 348 at [68]-[69]).
Indeed, at the hearing, the Applicant confirmed that he was living with his mother in New Zealand, that he was looking for work, and receiving social security payments (since the week before the hearing). As I mentioned in my discussion of the risk to the Australian community, he stated that he is currently completing parole in New Zealand in the form of a returning offender’s order until July 2023. He explained that he was required to take weekly drug tests and that he was starting a drug and alcohol program the week after the hearing. He referred to a “work broker” who could help him look for employment in New Zealand as part of his parole (transcript/9-10). These supports are likely to ease the Applicant’s transition to living in New Zealand.
As well as the Applicant’s mother being in New Zealand, his father, stepfather, two brothers, two sisters and infant niece are in New Zealand (transcript/8-9). The Applicant said that he did not have a relationship with his father or stepfather. Nevertheless, the Applicant has numerous family members who may be able to provide him with social and emotional support which will help the Applicant to re-establish himself in New Zealand. However, I do accept that the Applicant may experience emotional hardship at being separated from his Australian fiancée.
There are no real impediments associated with the Applicant’s voluntary return to New Zealand. The Applicant is likely to experience minimal hardship and that any impediments are not insurmountable and are likely to be temporary. Therefore, I give this consideration neutral weight.
Impact on victims (paras 9(1)(c) and 9.3 of Direction No 90)
Paragraph 9.3(1) of Direction No 90 provides that:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no information before me regarding the effect of a decision to revoke or not to revoke the Cancellation Decision on the Australian community (other than as discussed above under the “protection of the Australian community” and the “expectations of the Australian community” primary considerations), any victims of the Applicant’s offending (including the Applicant’s former partner, RB who was the victim of the family violence offence discussed above under that primary consideration), or any family members of any victims.
Consequently, this consideration is not relevant.
Links to the Australian community (paras 9(1)(d) and 9.4 of Direction No 90)
Paragraph 9.4 of Direction No 90 provides:
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 to 9.4.2 below.
This requires consideration of the strength, nature and duration of an applicant’s ties to Australia and the impact of non-revocation of a cancellation decision on Australian business interests.
Strength, nature and duration of ties to Australia
Paragraph 9.4.1(1) of Direction No 90 provides that:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Further, para 9.4.1(2) of Direction No 90 provides that:
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant’s fiancée, KT, is an Australian indigenous man. In a written statement (email), KT stated that he has been engaged to the Applicant for approximately one year, and that they have been in a relationship for approximately two years and were friends for approximately five years (G13/71). It appears that the couple may only have become engaged this year. At the hearing KT explained that after the Applicant voluntarily returned to New Zealand, he went to visit him there and they got engaged (transcript/45). The Applicant’s evidence was that their relationship commenced “a couple of months” before he went to prison (transcript/41). KT said that the Applicant has become close to his mother and had been accepted into KT’s family. KT’s evidence was that both he and his family would feel “devastation and heart break” if the Applicant was permanently removed from Australia.
In his evidence at the hearing, KT said that he quit his job and tried to move to New Zealand to be with the Applicant. However, KT was only in New Zealand for three weeks because “it’s nothing like home” and there are “more opportunities” with his work in Australia. KT is also awaiting an upcoming training and employment opportunity in Australia. KT was uncertain what would happen to the relationship if the Applicant had to stay in New Zealand and whether the relationship would end (transcript/47). KT’s job opportunities, family and culture are in Australia, and he had difficulty adjusting to living in New Zealand when he attempted to move there. Although KT may be able to visit the Applicant, he essentially faces permanent separation from the Applicant and the possibility of their relationship ending. I therefore find that KT would suffer emotional detriment if the Applicant was to remain in New Zealand.
KT’s mother, DK, also submitted a statement in an email dated 7 September 2022 (A1). DK stated that the Applicant being deported would be “very upsetting” for her, for KT and her family who “love and support” the Applicant and want him home in Australia. DK is also likely to suffer some emotional detriment if her son is distressed at being separated from the Applicant (transcript/48).
The Applicant also has good friends in Australia who have stated that they have known him for many years and who have written support letters for him (G14/73-G23/84). They may suffer disappointment or possibly emotional distress if the Applicant was permanently removed from Australia.
As I mentioned above under the “impediments” consideration, the Applicant’s immediate family are in New Zealand, including his parents and four adult siblings. He has an uncle and an aunt in Australia (G10/63). According to the Applicant, his mother was adopted, and her biological mother (the Applicant’s biological grandmother), was living in Australia, although at the time of the hearing the Applicant thought she may have returned to live in New Zealand (transcript/11). There is no evidence before me about the impact that the Applicant’s permanent removal from Australia would have on his aunt and uncle in Australia, or his biological grandmother if she is still residing in Australia.
As I have mentioned above, the Applicant is 30-year-old man who has only lived in Australia for approximately seven years. He first arrived in Australia in February 2015, although he returned to New Zealand for up to several months at a time between 2016 and 2017, with his absences during this period totalling approximately nine months which he spent in New Zealand (G27/93).
The Applicant started offending soon after arriving in Australia. He first arrived in February 2015 and committed four driving offences in July 2015. His first criminal offences were in May 2019, approximately four years after arriving in Australia, which included stealing and fraud (E2/7-8).
He has, however, made some positive contributions through employment as a barman and in hospitality. He has not completed any community or volunteer work (transcript/12). He did, however, provide accommodation and assistance to his friend LK and her two children for three months when they needed accommodation and support (G20/80). This assists to balance out the Applicant’s offending starting shortly after arriving in Australia.
Overall, the Applicant’s strongest tie to Australia is through his fiancée, KT. He is also close to KT’s family, particularly his mother, DK. He also has an aunt, uncle, and numerous friends in Australia. However, the Applicant has only resided in Australia for seven years, punctuated by nine months of absences between 2016 and 2017 and an extensive offending history, commencing with driving offences within several months after he arrived in Australia.
Overall, I find that para 9.4.1 of Direction No 90, being the strength, nature and duration of the Applicant’s ties to Australia, weighs moderately in favour of the revocation of the Cancellation Decision.
Impact on Australian business interests
Paragraph 9.4.2(3) of Direction No 90 provides that:
(3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
This consideration does not arise on the material before me and is therefore not relevant.
the weighing exercise
The Applicant does not pass the character test under s 501 of the Migration Act.
I have therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No 90.
For the reasons set out above, I made the following findings about the following relevant primary considerations in Direction No 90:
(a)the protection of the Australian community primary consideration weighed strongly against the revocation of the Cancellation Decision;
(b)the family violence primary consideration weighed moderately against the revocation of the Cancellation Decision;
(c)the best interests of minor children was given neutral weight; and
(d)the expectations of the Australian community also weighed strongly against the revocation of the Cancellation Decision.
I made the following findings with respect to the other considerations that were relevant:
(a)the extent of impediments if removed was given neutral weight; and
(b)the Applicant’s links to the Australian community (specifically, his strength, nature and duration of ties to Australia) weighed moderately in favour of the revocation of the Cancellation Decision.
I find that the primary considerations of the protection of the Australian community and the expectations of the Australian community, which both weighed strongly, and the family violence consideration, which weighed moderately, against the revocation of the Cancellation Decision, significantly outweigh the only other consideration that weighed in the Applicant’s favour. This was the links to the Australian community which weighed moderately in favour of the revocation of the Cancellation Decision. The best interests of minor children and the extent of impediments if removed were both neutral. Unfortunately for the Applicant, the overall balancing exercise weighs substantially against the Cancellation Decision being revoked.
In other words, the consideration that weighs in favour of the Applicant, being the Applicant’s links to the Australian community is not a reason that carries sufficient weight or significance to the extent that I can be reasonably satisfied that the Cancellation Decision should be revoked (Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64]). I am therefore not satisfied that there is another reason to revoke the Cancellation Decision.
Consequently, the correct or preferable decision is to affirm the Reviewable Decision.
Decision
The Reviewable Decision is affirmed.
I certify that the preceding 146 (one hundred and forty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner
...................[Sgd]..............................................
Associate
Dated: 30 September 2022
Date of hearing: 12 September 2022 Representative for the Applicant: Self-represented Representative for the Respondent: Mr A Burgess, Sparke Helmore Lawyers
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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Natural Justice
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