JOSHUA MONG and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2013] AATA 92
•22 February 2013
[2013] AATA 92
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/5751
Re
JOSHUA MONG
APPLICANT
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 22 February 2013 Place Brisbane The Tribunal affirms the decision under review.
..............................[Sgd]......................................
Mr R G Kenny, Senior Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – Class TY Subclass 444 Special Category (Temporary) Visa – Cancellation – New Zealand citizen – Entry to Australia at age 21 years – Substantial criminal record of serious offences and failure to comply with court orders – Failure to pass character test – Discretion to cancel visa – Relevant considerations – On balance, primary and other considerations favour cancellation of visa – Preferable decision is that visa be cancelled – Decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 501(2), 501(6), 501(7)
CASES
Re Matiu and Minister for Immigration and Citizenship [2012] AATA 31
Re Miller and Minister for Immigration and Citizenship [2012] AATA 303
Re Nono and Minister for Immigration and Citizenship [2012] AATA 315
Re Taylor and Minister for Immigration and Citizenship [2012] AATA 55Re Tucker and Minister for Immigration and Citizenship [2010] AATA 559
SECONDARY MATERIALS
Direction [No. 55] – Visa refusal and cancellation under s 501
REASONS FOR DECISION
Mr R G Kenny, Senior Member
THE APPLICATION
On 29 November 2012, Joshua Mong’s Class TY Subclass 444 Special Category (Temporary) Visa (“the visa”) was cancelled by a delegate of the Minister for Immigration and Citizenship (“the respondent”) under s 501(2) of the Migration Act 1958 (Cth) (“the Act”). Mr Mong has applied for review of that decision
ISSUES AND LEGISLATION
Under s 501(2) of the Act:
The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
The “character test” is defined in s 501(6) of the Act which specifies various alternative circumstances in which a person does not pass the character test within the meaning of that section. In the present case, the relevant circumstance relied upon is that specified in s 501(6)(a) of the Act, namely, “the person has a substantial criminal record”. Under s 501(7) of the Act, five alternative circumstances are specified in which, for the purposes of the character test, a person has a substantial criminal record. In the present case, the relevant circumstance is that specified in s 501(7)(c) of the Act, namely, “the person has been sentenced to a term of imprisonment of 12 months or more”.
It is not disputed that Mr Mong has been sentenced to a term of imprisonment of more than 12 months or that he has a substantial criminal record under ss 501(6) and (7) of the Act. The issue is whether the discretion in s 501(2) of the Act should be exercised to cancel the visa.
The Minister has issued Direction No. 55[1] (“the Direction”) under s 499 of the Act which is binding on those, including the Tribunal,[2] making decisions under s 501 of the Act.
[1] Direction No.55 – Visa refusal and cancellation under s501, dated 25 July 2012, commenced on 1 September 2012.
[2] See s 499(2A) of the Act and the term “decision-maker” in Annex B of the Direction.
In the Preamble to the Direction, the objective of the Act is stated to be the regulation, in the national interest, of the coming into, and presence in, Australia of non-citizens.[3] It provides that if the decision-maker reasonably suspects that the person does not pass the character test and the person does not satisfy the decision-maker that he/she passes the character test, “the decision-maker must consider whether to exercise the discretion to cancel the visa given the specific circumstances of the case”.[4] The Preamble also provides “General Guidance”, including the following:[5]
The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
[3] See cl 6.1(1) of the Direction. A “non-citizen” is defined in s 5 of the Act as a person who is not an Australian citizen.
[4] See cl 6.1(2) of the Direction.
[5] See cl 6.2 of the Direction.
The Preamble to the Direction then sets out six Principles which must inform the exercise of the discretion whether to cancel the visa:[6]
Principles
1Australia has a sovereign right to determine whether non-citizens who are of character concern[7] 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.
2A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
4Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
5Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
6The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
[6] See cl 6.3 and cl 7 of the Direction.
[7] The term “character concern” is defined in s 5C of the Act and Annex B of the Direction.
The Direction provides that “primary” and “other” considerations must be taken into account where relevant; that “both primary and other considerations may weigh in favour of, or against, refusal or cancellation of the visa”; that “primary considerations should generally be given greater weight than the other considerations”; and that “one or more primary considerations may outweigh other primary considerations”.[8]
[8] See cl 8 of the Direction.
Three of the four listed primary considerations in cl 9 of the Direction have been raised in this matter:
(a) Protection of the Australian community from criminal or other serious conduct;
(b) The strength, duration and nature of the person’s ties to Australia;
…
(d) Whether Australia has international non-refoulement obligations to the person.
Primary consideration (c) is concerned with the best interests of minor children in Australia and is not relevant in Mr Mong’s case.
Other considerations which must be taken into account in deciding whether to cancel a visa include the following:[9]
[9] See cl 10(1) of the Direction.
(a)Effect of cancellation of the person’s visa on the person’s immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely;
(b)Impact on Australian business interests;
(c)Impact of a decision not to cancel a visa on members of the Australian community, including victims of the person’s criminal behaviour, and the family members of the victim or victims where that information is available and the person being considered for visa cancellation has been afforded procedural fairness;
(d)The extent of any impediments that the person 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:
(i) The person’s age and health;
(ii) Whether there are substantial language or cultural barriers; and
(iii) Any social, medical and/or economic support available to them in that country.
EVIDENCE
Criminal history
Mr Mong has a criminal history in both Australia and New Zealand. A National Police Certificate,[10] dated 2 July 2012 from the Australian Federal Police, set out Mr Mong’s history of involvement with Queensland Courts as follows:
[10] See folio 34 of exhibit 1.
Court Date
Offence
Penalty
Supreme Court 2 March 2012 Robbery with Actual Violence Armed/In company/Wounded/Used Personal Violence Imprisonment 4 years Trafficking in dangerous drugs schedule 1 Imprisonment 3 years Possess dangerous drug – Specified in schedule 1 Imprisonment 2 years Unlawful use of motor vehicle. aircraft or vessel (x2) Imprisonment 2 years on both charges concurrent Possessing anything used in the commission of crime defined in Part 2 Imprisonment 1 year cumulative Stealing (x2)
Fraud – dishonest application of property of anotherImprisonment 1 year Breach of probation order imposed on 14 May 2009 re stealing by clerk and servant Breach proven
Convicted. Sentenced to rising of the courtBreach of suspended sentence imposed on 10 September 2009 re stealing Breach proven
Suspended sentence fully revokedPossess utensils or pipes that had been used Convicted - no penalty Magistrates Court 10 September 2009 Stealing (x2) Imprisonment 2 months for each charge - wholly suspended Magistrates Court 18 June 2009 Fraud - dishonestly obtains property from another Imprisonment 1 month
Restitution $1,500District Court 14 May 2009 Stealing by clerk and servant
Imprisonment 1 month for each charge - concurrent Fraud - dishonestly obtains property from another (x2) Magistrates Court 11 March 2009 Failure to appear in accordance with undertaking $200 fine.
A statement[11] from the New Zealand Police Service set out Mr Mong’s history of involvement with the New Zealand District Court as follows:
[11] See folio 36 of exhibit 1.
Court
Offence
Date
Penalty
Dunedin
29 September 2005Operated vehicle in unauthorised street or drag race 24 September 2005 $600 fine
Licence disqualified for 6 monthsNapier
24 November 2004Breach of community work 23 October 2004 Discharged – no penalty
ConvictedNapier
18 December 2003Obtaining by deception 28 October 2003 Community work – 300 hours
Supervision 9 months
Final warningPossession of cannabis pipe 26 October 2003 Community work – 300 hours
Supervision 9 months
Final warningTheft property (under $500) 24 April 2003 Reparation $250
Community work – 300 hours
Supervision 9 months
Final warningTheft property ($500 - $5,000) 19 April 2003 Reparation $700
Community work – 300 hours
Supervision 9 months
Final warningTheft property ($500 - $5,000) 13 June 2003 Reparation $800
Community work – 300 hours
Supervision 9 months
Final warningTheft property ($500 - $5,000) 2 April 2003 Reparation $1,522
Community work – 300 hours
Supervision 9 months
Final warning
Mr Mong
Mr Mong was born in New Zealand on 19 December 1985. He came to Australia for short periods in 1988, 1990, 1992 and 1998. He and his parents migrated to Australia in April 2007. Mr Mong returned to New Zealand to stay with his grandfather in June 2008 and has been continuously in Australia since 10 February 2009.
Mr Mong described a childhood in Napier in which he was an only child and raised in a loving family environment by his parents. He did not achieve well at school and believed that was partly related to a hearing problem which was not identified until late in his school years. He was active in sports such as football and swimming but considered himself to be a loner, lacking self-esteem. On leaving school, he took up drug use and felt this was part of a desire to be accepted. At 18 years of age he experimented with harder drugs and became addicted to “ice”.
To support his drug habit, Mr Mong started selling drugs and then turned to other criminal activity such as breaking into and stealing from cars as well as theft of cars. In 2003, he was apprehended by police and convicted of several offences. He then completed a drug and alcohol residential rehabilitation program of six months. He gained employment as a security guard with a night club and soon learned that the club was owned and operated by “a notorious outlaw gang” of “bikies”. To achieve acceptance by them, he became involved in their illegal activities and continued his drug use. He was advised by the gang members that, if he left that work, he and his parents would be killed. Nonetheless, he left Napier and moved to Dunedin where he remained drug free for several months. He returned to Napier, resolved his differences with the gang and, five months later, he and his parents moved to Australia. Mr Mong denied that his evidence of a threat to him in New Zealand was a recent invention by him.
Mr Mong outlined his employment history as including work as a forklift driver, a security worker in a night club and a storeman in New Zealand as well as a truck driver and a trainee operations manager with a transport company in Australia. He was dismissed from his last position because of drug usage. He described a strongly supportive family in Australia, including his maternal grandparents, paternal grandmother and all three of his uncles. Mr Mong described his more recent criminal conduct and drug usage as commencing because of his paternal grandfather’s death in October 2010 although he conceded that he had been involved in drug use and trafficking earlier that year. Mr Mong’s parents returned to New Zealand for his grandfather’s funeral but he was unable to leave Australia because his passport had been confiscated. Mr Mong accepted as correct the criminal history in New Zealand and Australia as listed above.[12] The offences for which he was imprisoned on both occasions were committed to fund his drug use.
[12] See paras 12 and 13, above.
Mr Mong said that he had not been given any warning of the prospect of his visa being cancelled before the respondent commenced its proceedings against him. He said that deportation to New Zealand would be devastating for himself and his family. He has no family and no close associates in New Zealand. His outline of submissions described the prospect of being seriously injured or even killed by the gang members with whom he was previously associated in Napier if he returned there. That outline also declared that his parents had to move to Australia “following perceivable and realistic threats on their own welfare and safety”. He has made application for a protection visa for that reason. He has accepted full responsibility for his past conduct and has completed several rehabilitation programs in prison which, he believes, will enable him to remain free from the use of drugs if he is able to stay in Australia. He has not been involved in drug use in prison. He said that, if he remained in Australia, he would live with his parents, assist in caring for his grandmother and work with his father in his courier franchise.
Rehabilitation
Mr Mong declined to participate in a computer course in August 2009 but undertook the following courses in prison:
·Drug Offender Intervention and Treatment Program (Do It Program) – 9 November 2012
·Transitions Program – 5 July 2012
·Ending Offending – September 2011
·Healthy Relationships – 9 September 2011
·Certificate I in Construction – 9 June 2011
·Certificate II in Construction – 24 June 2011
·Control traffic with a stop slow bat – 24 June 2011
·White Card course – May 2011
A letter, dated 13 July 2012, from Career Employment Australia, advised that Mr Mong had registered with that organisation for the Advance2Work program. This is designed to assist released prisoners to reintegrate into the community, to lead crime-free lifestyles and help reduce the risk of reoffending.
Sentencing remarks
In evidence were the remarks of His Honour Justice Boddice of the Queensland Supreme Court when sentencing Mr Mong on 2 March 2012:
[The various offences] are most serious offences, made more serious by reason of the fact that they occurred on two separate escapades, almost 12 months apart, in circumstances where you were on probation and subject to a suspended sentence. In the case of the armed robbery and accompanying offences, you were also on bail from the earlier drug offences. …
In relation to the drug offences, the Judge noted that Mr Mong had a drug dependence at the time of the offences in 2011 and continued:
The trafficking period is a period of approximately one month. The trafficking involved the trafficking in methylene dioxymethamphetamine. You made admissions that you were selling ecstasy.
…
Because of that drug dependence, you engaged in the trafficking of drugs in order to fund your own habit as well as your life style. That is a matter that is significant to this extent: You are not a person who was just a straight businessman, not involved with a drug addiction of their own, who engages in plying the trade to the misery of others.
His Honour noted that Mr Mong’s offences included taking his father’s car and his credit card which he used to make purchases of more than $1,600. The Judge also noted that Mr Mong had driven off in a car from a caryard after inquiring about a test drive. In one store, the credit card was declined and he left without paying for the goods he had selected. He also selected DVDs from a DVD store and produced a hand gun, “pointed the weapon at the female shop assistant … asked for, and [was] given, money”. The Judge said:
It is very fortunate for you that the female shop assistant did not suffer any harm as a consequence of the armed robbery. It would be frightening thing for a person to have a gun produced in their work place.
The Judge noted medical evidence that Mr Mong was a person of low intelligence and that he had “significant difficulty making appropriate judgements”. In determining Mr Mong’s sentence, the Judge noted that he had been cooperative with authorities by pleading guilty to his offences, by accepting an ex-officio indictment and expressing remorse for his conduct. A shorter than usual eligibility period for parole was set because of that co-operation. Nonetheless, the terms of imprisonment for the armed robbery and drug trafficking were imposed cumulatively, being a total sentence of seven years.
Other evidence
In evidence were letters of support from Mr Mong’s parents and from friends Michaela Hill, Joshua Wiperata and Jaaron Te Ngaru.
Mr and Mrs Mong described Mr Mong’s offences as being out of character for him and believed that they were due only to his use of drugs. They said that they would be devastated if he were deported and that he would be given support in Australia by them, by his grandparents and by his other relatives in Australia. They believed that he would be a “lost soul” in New Zealand because of his lack of associations there.
Ms Hill has known Mr Mong for some three to four years and described him as a close friend. She has been in regular contact with him while he has been in prison. She expressed concern for him and for his parents if he were deported because he has no family in New Zealand. Ms Hill expressed confidence in Mr Mong’s ability to become a contributor to the community if he remained in Australia with his family and friends around him.
Mr Wiperata and Mr Te Ngaru have known Mr Mong as a friend for some 13 years and 10 years, respectively. Their comments about his returning to New Zealand and about his prospects of rehabilitation in Australia reflected those of Ms Hill.
SUBMISSIONS
For Mr Mong, Mr Peter Nesbett conceded that Mr Mong had failed the character test under the Act but he submitted that the decision to deport Mr Mong was incorrect. He submitted that Mr Mong’s fitness to remain in Australia was supported by the decision to allow his release from custody on parole and by the willingness he displayed in prison to refrain from drugs and to undertake rehabilitation programs. He submitted that Mr Mong would continue to receive counselling after his release. He noted the shorter than usual parole eligibility period ordered by the Judge and submitted that the various constraints placed on him under his parole conditions would ensure that he would not re-engage in drug taking or other criminality and that he would be assisted by living with his parents and working with his father. Mr Nesbett submitted that Mr Mong’s parents were committed to the Australian community and that deportation would be detrimental to Mr Mong because of the absence of family in New Zealand.
Mr Nesbett submitted that the individual aspects of Mr Mong’s circumstances had not been fully considered and that one of these was the threat to his safety on return to New Zealand. He submitted that Australia’s international non-refoulement obligations should prevent Mr Mong’s deportation. He confirmed that an application had been made to the respondent for a protection visa[13] because of the potential harm he faced if he returned to New Zealand.
[13] See s 36 of the Act. In a written submission, reference was also made to Article 7 of the International Covenant on Civil and Political Rights 1976, Re Matiu and Minister for Immigration and Citizenship [2012] AATA 31, Re Taylor and Minister for Immigration and Citizenship [2012] AATA 55, Re Nono and Minister for Immigration and Citizenship [2012] AATA 315 and Re Miller and Minister for Immigration and Citizenship [2012] AATA 303.
Mr Nesbett considered the cancellation decision to be unfair because no prior warning of that outcome had been given to Mr Mong. He submitted that Mr Mong’s criminal behaviour had all been associated with his drug use and that this had commenced because of Mr Mong’s lack of maturity which enabled him to be readily influenced by others at the time.
For the respondent, Mr David McLaren submitted that Mr Mong did not satisfy the character test in the Act and that paramount in Mr Mong’s case was the primary consideration to protect the Australian community. He also submitted that because of the nature and seriousness of Mr Mong’s offences and the unacceptability of risk of his further offending, the decision to cancel his visa was the correct and preferable decision which should be affirmed.
Mr McLaren referred to Mr Mong’s history of addiction to drugs and to the serious offences he committed in association with that addiction. He noted Mr Mong’s reference to his trafficking of drugs in New Zealand even though he had no such convictions there. He submitted that the seriousness of the offences committed by Mr Mong was reflected in the Supreme Court sentencing comments and the decision to impose cumulative terms of imprisonment for seven years.
Mr McLaren submitted that Mr Mong’s evidence that he returned to drug use because of his grandfather’s death should not be accepted because he had been trafficking drugs earlier in the same year. He also submitted that Mr Mong’s evidence concerning his fear of harm on return to New Zealand should not be accepted. Mr McLaren submitted that it was significant that Mr Mong had spent most of his life, including his formative years, in New Zealand. He submitted that immaturity was not a factor in Mr Mong’s criminal activity in Australia as Mr Mong was aged 21 years when he came to live in Australia and 23 years when he returned to Australia in February 2009, only a month before his appearance in the Brisbane Magistrates Court on 11 March 2009.
Mr McLaren accepted that Mr Mong had undertaken rehabilitation programs in prison but submitted that it was highly likely that Mr Mong’s addictive behaviour would return and lead to further criminal behaviour. This was because of his past failures to maintain abstinence when he had been drug free. In that regard, he noted that Mr Mong’s offences included non-compliance with various forms of court orders including failure to appear in accordance with an undertaking, breach of probation and breach of bail.
Mr McLaren conceded that Mr Mong’s family ties were in Australia rather than in New Zealand but that the seriousness of Mr Mong’s offences committed in the relatively brief time he had been in Australia as well as the need to protect the Australian community from harm weighed heavily in favour of cancelling his visa. He also submitted that Mr Mong had no health problems, that he had been in employment in New Zealand and that he would be able to access comparable social, medical and economic support in New Zealand as would be available in Australia.
CONSIDERATION
In considering Mr Mong’s application, I have noted Mr Nesbett’s submissions including those relating to the Tribunal cases he cited.
Primary consideration (a): Protection of the Australian community
In relation to the first of the primary considerations, the Direction provides at cl 9.1:
9.1 Protection of the Australian community
1When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
2Decision-makers should also give consideration to:
(a)The nature and seriousness of the person’s conduct to date; and
(b)The risk to the Australian community should the person commit further offences or engage in other serious conduct.
9.1.1 The nature and seriousness of the conduct
1In considering the nature and seriousness of the person’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(c)Where the person is in Australia, that a crime committed while the person was in immigration detention; during an escape from immigration detention; or after the person escaped from immigration detention, but before the person was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
(d)The principle that any conduct that forms the basis for a finding that a person does not pass the character test under s501(6)(b) or (d), or is not of good character under s501 (6)( c), is considered to be serious;
(e)The sentence imposed by the courts for a crime or crimes;
(f)The frequency of the person’s offending and whether there is any trend of increasing seriousness;
(g)The cumulative effect of repeated offending;
(h)Whether the person has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(i)Whether the person 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 person’s migration status (noting that the absence of a warning should not be considered to be in the person's favour);
(j)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
9.1.2 The risk to the Australian community should the person commit further offences or engage in other serious conduct
1In considering whether the person represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle 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. In making this assessment, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
(b)The likelihood of the person engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the person reoffending; 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).
In light of the Principles in cl 6.3 of the Direction, particularly (1), (4), (5) and (6) thereof, the factors applicable to Mr Mong in cl 9.1.1 of the Direction are (a), (d), (e), (f) and (g) as well as those in cl 9.1.2(1)(a) and (b) thereof.
I accept Mr McLaren’s submission that Mr Mong’s offences are very serious and note Justice Boddice’s references to that effect. I accept that regard was had by the Judge to Mr Mong’s cooperation with authorities and that this resulted in a reduction in the length of the non-parole component of his sentence. However, the Judge imposed cumulative terms totalling seven years imprisonment thereby indicating the high level of seriousness involved. Stealing is, in itself, serious and has significant impact on victims. Also, there has been an escalation in the severity of the means adopted by Mr Mong to obtain funding of his drug habit beyond stealing to the use of threatened violence to a person with the brandishing of a gun. I have noted Mr Mong’s reference to the trafficking of drugs in New Zealand which did not result in his apprehension. Mr Nesbett placed significance on the absence of a warning to Mr Mong of possible visa cancellation. However, the Direction provides that such an absence is not to be considered in Mr Mong’s favour[14] and, regardless of any warning, the Principles make it clear that there is an expectation that non-citizens will be law-abiding, will respect Australia’s law enforcement framework, and will not cause or threaten harm to individuals.[15]
[14] See cl 9.1.1(1)(i) of the Direction.
[15] See cl 6.3(1) of the Direction.
The increasing severity of Mr Mong’s offences raise the clear prospect of harm being done to individuals in the Australian community if he returned to drug use and required funds to support that use. In that regard, I accept Mr McLaren’s submission that there is a significant likelihood that Mr Mong’s drug use will continue.
There is no evidence before me of the level of exposure to drugs experienced by Mr Mong while he has been in prison. His evidence was that he has not taken any drugs during that time. However, whatever constraints are involved while he is in custody will not necessarily be present once he is released from custody. On occasions in the past, Mr Mong has returned to drug use after periods of abstinence. Indeed, Mr Mong returned to criminal offending even after he had been sentenced for five months for offences of dishonesty, associated with drug use, in May 2009. His evidence was that he took part in a residential program for six months without drugs and with constant counselling about drugs but still returned to drug use. He abstained for several months when he moved from Napier to Dunedin but, on return, again took up drugs. Mr Mong agreed that he had been involved with drugs in early 2010 and that this had ceased by the time his grandfather died in October 2010. However, his mode of dealing with that situation was to return again to drug use.
I have noted Mr Nesbett’s contention that Mr Mong’s lack of maturity and the influence of others were responsible for his drug use. While that may bear some responsibility, he was an adult when he came to Australia and continued offending. I have also noted Justice Boddice’s reference to medical evidence concerning Mr Mong’s intellectual capacity and to his resultant difficulty in making appropriate judgements. Unfortunately, Mr Mong’s situation in that regard is unlikely to change.
Mr Mong has completed various courses in prison and Mr Nesbett submitted that these comprised evidence of his rehabilitation. Again, the six month residential program was not sufficient to enable Mr Mong to overcome his drug use. Mr Nesbett also submitted the terms of Mr Mong’s parole conditions would cause him to refrain from drug use. Those conditions were not in evidence. In any event, Mr Mong has demonstrated a willingness to disregard such obligations in the past with his breaches of an undertaking, of bail and of probation.
In accordance with the Principles in cl 6.3,[16] cl 9.1.1 and cl 9.1.2 of the Direction, the primary consideration relating to the protection of the Australian community weighs heavily in favour of cancelling his visa.
[16] In particular cls 6.3(4) and (6).
Primary consideration (b): Strength, duration and nature of the person’s ties to Australia
In relation to the second of the primary considerations, the Direction provides at cl 9.2:
9.2 Strength, duration and nature of the person’s ties to Australia
1Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the person has resided in Australia, including whether the person arrived as a young child, noting that:
(i) Less weight should be given where the person began offending soon after arriving in Australia; and
(ii) More weight should be given to time the person has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Mr Mong has spent most of his life in New Zealand, including his formative years. His first conviction in Australia was imposed less than two years after he migrated here, as an adult, with his parents. For eight months of that time he was back in New Zealand with his ailing grandfather. In May 2009, 14 months after migrating to Australia, and only a few months after being back in Australia, he was sentenced to one month imprisonment for an offence of dishonesty. He breached a bail undertaking in relation to that offence on 11 March 2009 which was only two months after returning to Australia from New Zealand. He was employed for some of his time in Australia and, in that way, made a contribution to the Australian community. However, he was dismissed from his last job because of drug taking and any contribution made by Mr Mong to the community is outweighed by the negative impacts associated with his criminality.
Mr Mong’s family live in Australia. His parents are supportive of him and will provide him with accommodation if he remains in Australia. Mr Mong’s evidence was that he will find employment with his father who has invested in the Australian community in respect of his franchise courier business. Mr Mong’s friends, Ms Hill, Mr Wiperata and Mr Te Ngaru have indicated that they are supportive of him. He has no family in New Zealand and has been away from associates there since February 2009.
In accordance with the Principles in cl 6.3[17] and cl 9.2 of the Direction, I am satisfied that while Mr Mong’s ties with his family in Australia and absence of family in New Zealand weigh against exercising the discretion to cancel his visa, the relatively short time Mr Wong was living in Australia before he commenced his criminal conduct significantly reduces that weight.
Primary consideration (d): Whether Australia has international non-refoulement obligations to the person
[17] In particular cls 6.3(4) and (6).
In relation to the fourth of the primary considerations, the Direction provides at cl 9.4:
9.4 International non-refoulement obligations
1In cases where claims which may give rise to international non-refoulement obligations are raised by the person or are clear from the facts of the case, they must be given consideration if the person is in Australia.
2The power to cancel a visa is a fundamental exercise of Australian sovereignty. The existence of a non-refoulement obligation does not preclude cancellation of a person’s visa. This is because Australia will not necessarily remove a person, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists. However, any non-refoulement obligation should be weighed carefully against the seriousness of the person’s criminal offending or other serious conduct in deciding whether or not the person should continue to hold a visa.
3Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); and the International Covenant on Civil and Political Rights (ICCPR) and its Second Optional Protocol. The provisions of section 36 and related provisions of the Act reflect Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in those provisions. Specifically, Australia has non-refoulement obligations:
(a)under the Refugees Convention as amended by the Refugees Protocol (s36(2)(a)). Article IF and Article 33(2) contain exclusions and exceptions as to when persons can claim the benefit of protection under the Convention; and
(b)where there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country there is a real risk that the person will suffer significant harm. A person will suffer significant harm if:
the person will be arbitrarily deprived of his or her life; or the death penalty will be carried out on the person; or
the person will be subjected to torture, or
the person will be subjected to cruel or inhuman treatment or punishment; or
the person will be subjected to degrading treatment or punishment.
The above test is contained in subsections 36(2)(aa) and 36(2A) of the Migration Act. There are circumstances where there should be taken not to be a real risk: s36(2B). These provisions reflect Australia’s interpretation of its nonrefoulement obligations under the CAT and ICCPR. Section 36(2C) affects eligibility for a protection visa, but does not otherwise affect whether Australia has a non-refoulement obligation in cases of significant harm as defined.
Mr Mong gave evidence that, in the event that he returned to New Zealand, he feared violence from a bikie gang who owned the club in Napier where he had worked. In that context, this primary consideration was raised by Mr Nesbett. However, I am satisfied that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of Mr Mong being removed from Australia to New Zealand, there is a real risk that he will suffer significant harm as defined above. This is because I do not accept his evidence that the threat he described exists. In his statement,[18] Mr Mong referred to the threat by the gang to kill him and his parents because he left his security job at the gang’s night club. However, in that statement, he also wrote that, after returning to Napier from Dunedin, he resolved his issues with the club’s owners. He also remained in Napier for a further five months before coming to Australia with no evidence of any harm to him during that time or, indeed, during the period of eight months from April 2007 until June 2008 when he returned to New Zealand from Australia to stay with his grandfather. Threats of violence from the bikie gang to himself and his parents was given by Mr Mong as the reason for their migration to Australia. However, no reference is made to such threats or to a fear of violence in the statement of Mr Mong’s parents.
[18] See Exhibit 1 at 82.
In accordance with the Principles in cl 6.3 and cl 9.4 of the Direction, I am satisfied that any non-refoulement obligations that Australia has in Mr Mong’s circumstances weigh neutrally on the issue of cancelling his visa.
Other considerations
A non-exhaustive list of other considerations is provided in cl 10 of the Direction.[19]
[19] See para 11 (above).
One such factor is the effect of visa cancellation on Mr Mong’s immediate family. Mr Mong’s parents, surviving grandparents and three uncles live in Australia. There is no evidence from his grandparents or uncles but I accept the evidence of parents that they would be strongly affected by Mr Mong’s deportation. I also accept that to be the case, albeit to a lesser extent, with Ms Hill, Mr Wiperata and Mr Te Ngaru who provided statements. It has not been suggested that there would be any impact on Australian business interests if Mr Mong’s visa were cancelled although Mr Mong indicated that he hoped to assist his father with his courier franchise, a matter not referred to in his parents’ statement. Similarly, no evidence was before the Tribunal of any impact of a decision on the families of the victims of Mr Mong’s offences. No health concerns have been expressed by Mr Mong and it is not in dispute that there are no language or cultural barriers to Mr Mong returning to New Zealand or that a similar level of social, medical and economic support would be available to him in New Zealand as would be applicable in Australia.
Mr Mong was employed in New Zealand before moving to Australia and his evidence is that he has a current heavy vehicle driver licence. I am satisfied that there are no barriers to Mr Mong establishing himself in New Zealand and maintaining a basic living standard such as is generally available to New Zealand citizens. I have referred to Mr Mong’s expressions of concern for his safety and determined that this is not an impediment he will face on returning to New Zealand.
In accordance with the Principles in cl 6.3 and cl 10 of the Direction, the consideration concerning the effect on family members weighs against the cancellation of Mr Mong’s visa. However, in accordance with those provisions, the remainder of the other considerations weigh neutrally in that regard.
CONCLUSION
Having considered the relevant primary considerations and relevant other considerations in this case, the task of the Tribunal is to determine, on the basis of the appropriate weight to be given to each of those considerations, whether those considerations, on balance, favour cancellation of the visa.[20]
[20] See cl 6.1 of the Direction and Re Tucker and Minister for Immigration and Citizenship [2010] AATA 559 at [65].
Of the three relevant primary considerations, I am satisfied that the protection of the Australian community is the most significant in Mr Mong’s case. The nature and frequency of his criminal conduct and the likelihood of his re-offending are in conflict with an objective of the Act. That objective is to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by a non-citizen.[21] I am satisfied that the first primary consideration weighs heavily in favour of cancellation of the visa and that the second and third primary considerations each bear neutrally on the issue. The other considerations weigh neutrally on the issue of cancellation apart from that concerned with the effect on Mr Mong’s family. This factor weighs against cancellation. However, the other considerations carry less weight than the primary considerations.[22] On balance, I am satisfied that the cancellation of the visa in this case would accord with the standards, values and expectations of the Australian community. Accordingly, the preferable decision is that Mr Mong’s visa be cancelled pursuant to s 501(2) of the Act.
[21] See cl 6.2 of the Direction.
[22] See cl 8(4) of the Direction.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.
..............................[Sgd]........................................
Associate
Dated 22 February 2013
Date of hearing 15 February 2013 Advocate for the Applicant Mr Peter Nesbett Solicitors for the Respondent Sparke Helmore
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