Kamal and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 959
•24 April 2020
Kamal and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 959 (24 April 2020)
Division:GENERAL DIVISION
File Number: 2020/0606
Re:Ibrahim Kamal
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Senior Member P. Q. Wood
Date:24 April 2020
Place:Melbourne
The Tribunal affirms the decision under review.
.....[sgd]................................................................... …[sgd]………………………………….
Senior Member D. J. Morris Senator Member P. Q. Wood
Catchwords
MIGRATION – mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – substantial criminal record – applicant is a citizen of New Zealand – applicant born in Ethiopia – applicant does not pass character test – Ministerial Direction No. 79 – whether another reason to revoke mandatory cancellation of visa – primary considerations – protection of the Australian community – previous immigration warnings and actions – expectations of Australian community – other relevant considerations – strength, nature and duration of ties to Australia – extent of impediments if removed – discretion not enlivened – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 33, 33A
Migration Act 1958 (Cth), ss 499, 500,501, 501CA
Cases
DPP v Kamal [2016] VCC 1714
Du Pont and Minister for Immigration and Ethnic Affairs, Re [1983] AATA 180
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
Kamal and Minister for Immigration and Citizenship, Re [2009] AATA 555
Kamal and Minister for Immigration and Multicultural and Indigenous Affairs, Re [2005] AATA 563
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Minister for Immigration and Citizenship v Obele [2010] FCA 1445
Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212; (1981) 5 ALD 135NDBR v Minister for Home Affairs [2019] FCA 1631
Secondary Materials
Migration Act 1958 – Direction under s 499 – Direction No 21 – Visa Refusal and Cancellation under section 501 (Revoked 15 June 2009)
Migration Act 1958 – Direction under s 499 – Direction No 41 – Visa Refusal and Cancellation under Section 501 of the Migration Act 1958 (Revoked 25 July 2012)Migration Act 1958 – Direction under s 499 – Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Commenced 28 February 2019)
REASONS FOR DECISION
Senior Member D. J. Morris
Senior Member P. Q. Wood24 April 2020
BACKGROUND TO HEARING
Mr Ibrahim Kamal (also known as Abraham Kamal) was born in 1986 in Ethiopia. As a young child, he travelled to New Zealand and became a naturalised citizen of that country. He arrived in Australia in 2000 with his aunt, and on arrival was granted a Class TY Subclass 444 Special Category (Temporary) visa (the visa). The visa was cancelled on 21 July 2016 because a delegate of the Respondent was satisfied that Mr Kamal did not pass the statutory character test under section 501(3A) of the Migration Act 1958 (the Act) because he has a substantial criminal record under s 501(6)(a) of the Act and was serving a sentence of imprisonment on a full-time basis at the time of the cancellation decision.
Mr Kamal made representations to the Department of Home Affairs (the Department) under section 501CA(4)(a) of the Act regarding the mandatory cancellation of the visa. On 23 January 2020, a delegate of the Respondent decided to refuse to revoke the mandatory cancellation of the visa. Mr Kamal lodged an application for review of this decision with the Tribunal.
A hearing was held on 1 April 2020. Owing to the current public health emergency, the hearing was by electronic means, under section 33A of the Administrative Appeals Tribunal Act 1975 (the AAT Act). Mr Kamal made submissions and gave evidence by video link, and was cross-examined by Mr Christopher Orchard of Sparke Helmore Lawyers, who appeared by telephone representing the Respondent. The Applicant called three witnesses who gave evidence by telephone.
The Tribunal received from the Applicant an Outline of Submissions, and from the Respondent a Statement of Facts, Issues and Contentions, both of which were taken into account. The Tribunal admitted into evidence:
·a statement of Mr Nick Gabb, dated 11 March 2020 (Exhibit A1);
·a statement of Mr Benjamin Armstrong, dated 24 March 2020 (Exhibit A2);
·a statement of Mr Jarrod Weiss, dated 10 March 2020 (Exhibit A3);
·five certificates of attainment of Mr Kamal (Exhibit A4);
·Worksafe Victoria Construction Induction Card of the Applicant (Exhibit A5);
·a volume of ‘G’ documents collated by the Respondent (GD)(Exhibit R1);
·Volume 1 of supplementary ‘G’ documents (SGD)(Exhibit R2); and
·Volume 2 of supplementary ‘G’ documents (SGD)(Exhibit R3).
At the conclusion of the hearing, the Tribunal gave leave for both parties to provide further written submissions on the material and evidence before the Tribunal. The Applicant provided written closing submissions on 6 April 2020 and the Respondent on 9 April 2020. Both parties provided further closing submissions in reply, the Applicant on 15 April 2020, and the Respondent on 16 April 2020. The Applicant had a further opportunity to provide final submissions in reply by 17 April 2020, however he did not provide further submissions. The applicant told the Tribunal that he had been assisted by another prisoner in preparing written submissions.
Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister, or his or her delegate, must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation of section 501(6)(b)(iii) of the Act, and under section 501(3A)(b) of the Act the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of the Commonwealth, a State or a Territory.
The Act also provides, at section 501CA(4), that a decision-maker may revoke the mandatory cancellation of a visa if the person whose visa was cancelled makes representations within the relevant time period, and the decision-maker determines that the person passes the ‘character test,’ or there is another reason why the mandatory cancellation should be revoked, as provided for under s 501CA(4)(b)(ii) of the Act. There was no suggestion that Mr Kamal had not made representations within the prescribed period.
If the Tribunal finds that Mr Kamal fails the character test, the sole issue before the Tribunal then becomes whether there is another reason why the original decision to cancel the visa should be revoked. In carrying out this task, the Tribunal examines the factors for and against revoking the cancellation. If the Tribunal, standing in the shoes of the Minister, is satisfied that the cancellation should be revoked, the Minister must act on that view and reinstate the applicant’s visa (see North ACJ in Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338, at [38]).
Evidence in relation to the character test
Before the Tribunal were the sentencing remarks on 16 November 2016 of His Honour Judge McInerney in the County Court of Victoria at Geelong in DPP v Kamal [2016] VCC 1714 (GD, pp 29-41). His Honour convicted Mr Kamal of the offence of Recklessly causing serious injury and sentenced him to a term of imprisonment of five years, with a non-parole period of three years (GD, p 40).
In addition, on 6 June 2008 Mr Kamal was convicted by the County Court of Victoria at Melbourne of the offence of Intentionally cause serious injury, for which he was sentenced by His Honour Judge Hart to four years’ imprisonment (GD, pp 42-48). On the same date he was also convicted of the common law offence of Affray, for which he received a sentence of six months’ imprisonment, to be served concurrently.
Judge McInerney referred to the fact that the 2012 incident which led to the November 2016 conviction occurred while Mr Kamal was serving a term of imprisonment. The Criminal History Check provided by the Australian Criminal Intelligence Commission (GD, pp 25-28) records that on 8 June 2016 the Applicant was sentenced by the Melbourne Magistrates’ Court for the following offences: Carry prohibited weapon without exemption/approval; Possess controlled weapon without excuse; Possess methylamphetamine (2 charges); Possess heroin (4 charges); Possess drug of dependence – prescription drug; Unlicensed driving (4 charges); Drive whilst disqualified (2 charges); Drive in a manner dangerous; Resist police; Dishonestly undertake in retention of stolen goods; and Commit indictable offence whilst on bail. For these charges the Court imposed a cumulative term of nine months’ imprisonment. In addition, on the same date, the offence of Contravene suspended sentence order was found proven against Mr Kamal, and a partially suspended sentence, imposed on 1 March 2013 for the offence of Assault by kicking, was wholly restored with four months to serve.
We note that Mr Kamal was serving a sentence of full-time imprisonment on the date the visa was cancelled (see section 501(3A)(b) of the Act).
Finding in relation to character test
On the evidence before us, the Tribunal finds that Mr Kamal has a ‘substantial criminal record’ as defined by section 501(7)(c) and (d) of the Act and he does not pass the character test because of the operation of section 501(6)(a) of the Act. The remaining task for us to determine is whether there is ‘another reason’ why the mandatory cancellation of Mr Kamal’s visa should be revoked.
The Ministerial Direction – Direction No. 79
Section 499(1) of the Act provides that the Minister may give written directions about the exercise of functions or powers under the Act. The relevant direction in this matter is Direction No. 79 (the Direction). Under s 499(2A) of the Act, the Tribunal must comply with the Direction in considering this matter.
Paragraph 6.1 of the Direction states, in part:
6.1Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
…
(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 full-time 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 his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
The Direction includes the following principles at paragraph 6.3:
(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)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. 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.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
In deciding whether to refuse to revoke the mandatory cancellation of a non-citizen’s visa, the Direction requires a decision-maker to take into account considerations set out in Part C, which is divided into ‘primary considerations’ and ‘other considerations.’ The primary considerations in Part C are set out in paragraph 13(2) of the Direction. They are: ‘Protection of the Australian community from criminal or other serious conduct;’ ‘The best interests of minor children in Australia;’ and ‘Expectations of the Australian community.’ Other considerations set out in paragraph 14(1) of the Direction are: ‘International non-refoulement obligations;’ ‘Strength, nature and duration of ties;’ ‘Impact on Australian business interests;’ ‘Impact on victims;’ and ‘Extent of impediments if removed.’
The Direction states that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (see paragraphs 8(4) and 8(5) of the Direction). The Tribunal has considered each of the primary considerations and, as relevant, the other considerations.
THE APPLICANT’S IMMIGRATION AND VISA HISTORY
The Applicant was born in 1986 in Ethiopia. When he was aged three, his mother died. That was in 1989 or 1990. In 1991 (GD, p 72) the Applicant’s father disappeared. His aunt, Ms AM, who was only about nine or ten years older than Mr Kamal, took on a parental role. They fled Ethiopia and travelled to Kenya, where they remained for seven years in a refugee camp. A second cousin of Mr Kamal, Mr SH, was in the same camp and he and Ms AM married. In 1994, Mr SH left Kenya to live in New Zealand. In 1997 Ms AM and Mr Kamal were accepted by New Zealand as refugees and they travelled there, sponsored by Mr SH. Mr Kamal commenced school aged around 10 or 11. Ms AM was granted New Zealand citizenship, as was the Applicant.
In 1999, the marriage between Ms AM and Mr SH broke up. In July 2000, Ms AM and the Applicant migrated to Australia. Mr Kamal has resided in Australia since that date (GD, p 108). Mr SH had also migrated to Australia.
Mr Kamal resumed his schooling in Australia, attending a secondary college in Melbourne. A useful summary of the circumstances of Mr Kamal at that time is provided in the following extract from a 2009 Tribunal decision (GD, p 56):
He described his first year at school in Australia as being “good” but in the second year things changed. The applicant fell in with bad company and commenced missing school and as he described it in his statement “…drinking alcohol, getting into trouble with the law and going off track.” His explanation for doing these things was so that he could be accepted by the other boys. He started to use his aunt’s house when he could not find accommodation with the other boys. He did not accept her pleading with him to keep out of trouble. Approximately 19 months after arriving in Australia he is recorded as being convicted in the Melbourne Children’s Court of armed robbery, possessing graffiti implements and possessing cannabis. Further similar convictions were recorded over the following two year period and the applicant was initially released on Youth Supervision orders until, on 11th March 2003, he was ordered to be detained in a youth training centre, fined and ultimately imprisoned on 28 May 2004 for a term of 14 months. Many of the offences involved robbery of mobile telephones and money from children of a similar age to the applicant. His conviction in May 2004 was followed by the first visa cancellation from which he successfully applied to this Tribunal for review.
On 5 August 2004, the Respondent issued a notice of intention to cancel the Applicant’s visa. Mr Kamal was notified on 15 March 2005 that the visa was cancelled.
The Applicant applied to the Tribunal for review of that decision. On 14 June 2005, the Tribunal (constituted by Deputy President Block) exercised the discretion available under the Act to set aside the cancellation of the visa, applying a predecessor to the Direction, Direction No. 21.
Regrettably, after this process and the restoration of his visa, Mr Kamal went on to commit further offences. On 2 May 2009 a delegate of the Respondent again cancelled his visa on the basis of a conviction in the County Court of Victoria in June 2008 of the offence of Intentionally causing grievous bodily harm, for which he was sentenced to four years’ imprisonment. As a result of this conviction and sentence, Mr Kamal was deemed to have a ‘substantial criminal record’ under section 501(7)(c) of the Act and therefore did not pass the character test set out in section 501(6)(a). The delegate declined to exercise the discretion available under the Act to revoke the mandatory cancellation of the visa, applying a fresh direction, Direction No. 41.
The Applicant applied to the Tribunal for review of the delegate’s decision. On 28 July 2009, the Tribunal (constituted by Deputy President McDonald) decided to set aside the decision of the delegate not to revoke the visa cancellation.
On 21 July 2016, Mr Kamal’s visa was cancelled for a third time and he was invited to make representations about revocation of the cancellation decision (GD, p 6). He did so and after consideration of those representations on 23 January 2020, the delegate of the Respondent decided under section 501CA(4) of the Act not to revoke the mandatory cancellation of the visa. Mr Kamal was notified of that decision by letter dated 24 January 2020. At a Directions hearing on 12 February 2020 the Tribunal found that, for the purposes of section 500(6L)(c) of the Act, Mr Kamal is deemed to have received notice of the decision not to revoke the mandatory cancellation of his visa on 31 January 2020. Mr Kamal has now brought this decision to the Tribunal for review.
THE APPLICANT’S OFFENDING HISTORY
In May 2004 at the County Court of Victoria, His Honour Judge Ross stated (SGD, p 102):
…your record indicates that you have had a number of court appearances in the Children’s Court. Unfortunately, amongst those convictions, as I count it, there is one count of armed robbery, five counts of robbery [in] 2002, causing serious injury intentionally [in] 2002, three more robbery charges in January 2003, another robbery [in] February 2003, another robbery in March 2003 and these particular events occur in August 2003.
In May 2004, Mr Kamal was convicted at the County Court of Victoria in Melbourne of the offence of Robbery and the common law offence of False imprisonment. For these offences, he was sentenced to a cumulative term of 14 months’ imprisonment.
In December 2007, Mr Kamal appeared before the Melbourne Magistrates’ Court and was convicted of the offences of Assault in company and Recklessly cause injury. He was sentenced to an aggregate term of eight months’ imprisonment.
In July 2008, Mr Kamal was convicted at the County Court in Melbourne of the offence of Intentionally cause injury, for which he was sentenced to four years’ imprisonment, and the common law offence of Affray, for which he received a sentence of six months’ imprisonment, to be served concurrently. That matter related to an altercation outside a nightclub in a Melbourne suburb where a group, of which the Applicant was a member, knocked a man to the ground. His Honour Judge Hart recorded (SGD, p 66):
Shortly after that, whilst [the victim] was lying on the ground and effectively helpless, you, Mr Kamal, took hold of his shirt and slashed him twice across his stomach or abdomen with a blade, probably a Stanley knife, and I cannot be satisfied beyond reasonable doubt what it was. The slashes were long and straight and are shown in the photographs exhibited. They required 16 and six staples respectively. I do not know why you did this, but it was not done wildly. They were, in my view, deliberate slashes, seemingly designed to scar or otherwise mark somebody.
[…]
You have told me frankly, though your counsel, that you have been “running with a lawless crowd and that you involve yourselves with nightclubbing and drinking to excess”. I am told, but I am afraid I am not convinced, that you want to move away from that circle of friends and stop wasting your life. There is little sign of this.
In March 2012, the Applicant was convicted at the Melbourne Magistrates’ Court of the common law offences of Affray and Common law assault, and sentenced to a total of twelve months’ imprisonment.
In March 2013, as mentioned above, Mr Kamal was convicted at Ringwood Magistrates’ Court of the offence of Assault by kicking. The Magistrate imposed a sentence of six months’ imprisonment, four months of which was suspended for a period of 12 months. In July 2016 Mr Kamal was convicted of the range of offences referred to earlier in these reasons.
In February 2017, Mr Kamal was convicted before the Melbourne Magistrates’ Court of contravening a Family Violence Order, and received a fine of $750. He was also convicted of the offence of Unlawful assault, and sentenced to a term of three months’ imprisonment.
In April 2018, Mr Kamal appeared before Moorabbin Magistrates’ Court and was convicted of the offence of Contravene a conduct condition of bail.
In July 2018, the Applicant was convicted before the County Court of Victoria at Melbourne of the offences of: Traffic heroin, Possess GHB, Commit indictable offence whilst on bail, and received an aggregate sentence of ten months’ imprisonment, five months of which was concurrent.
EVIDENCE
Mr Kamal
Mr Kamal confirmed that he arrived in Australia in 2000 aged 14 and that his first offence in Australia was recorded in April 2002. Mr Orchard referred the Applicant to the Criminal History Check and asked if he accepted the summary. Mr Kamal noted that there were some entries in the document where he said he had never been charged.
The Tribunal notes that there are pending charges recorded in the Criminal History Check with a date of 6 February 2016 which have yet to be determined by a Court (GD, p 26). We make clear that these charges are disregarded by us in this consideration as there has been no determination of these charges by a Court.
Mr Kamal was taken through various entries in the Criminal History Check of other appearances before the Court. He said he accepted the record and noted that he pleaded guilty to many of the offences and was ashamed of, and embarrassed by, his conduct.
Mr Kamal was asked about an incident where he was convicted of robbing a school student and about telling the Tribunal in a previous hearing that he had used the money he obtained for “partying and all that stuff”. He said he could not remember saying that but accepted it was a true statement of what he said at that time.
Mr Kamal was asked about the 2005 cancellation of his visa. He said he recalled that, and was “ashamed to be sitting here again” before the Tribunal.
Mr Kamal’s attention was drawn to Deputy President Block’s remarks (GD, p 107) where the Tribunal said:
On balance, and with some hesitation, I incline to the compassionate view referred to previously. The Applicant should for these reasons receive a second (and final) chance. He knows that if he re-offends he will not receive any further chances.
Mr Kamal said he remembered that being said and was embarrassed that he did go on to re-offend. He said his drug problem had contributed to his re-offending and “when I look into the mirror, I am embarrassed.”
Mr Kamal was asked about the 2006 incident near a night club. The sentencing Judge stated that, while a victim was lying on the ground (notably, the Judge did not find that the Applicant had knocked this person down), the Applicant stood over him and slashed the victim twice across his abdomen with a blade. Mr Kamal said he was not proud of this incident, that he was young at the time, made a bad decision, and wished he had parents to tell him what was right and wrong.
Mr Kamal conceded that he has breached conditions imposed by the Courts in relation to suspended sentences. He was also asked about some driving offences which he said were “terrible mistakes.”
In respect of the 2016 conviction for Recklessly causing injury, Mr Kamal agreed that the incident which gave rise to the conviction occurred in May 2012 at Barwon Prison where he stabbed a fellow prisoner in the eye with a metal spike. Mr Kamal said that he was protecting himself at the time. He told the Tribunal that it is hard to explain what happens in prison but that there was a group of other prisoners who had him ”fearing for his life” and he had placed a magazine around his waist to protect himself from being stabbed. He said the victim of the assault came running at him, that he was not proud of what happened, and he accepts the punishment meted out.
Mr Kamal said he was not a violent person and would never do anything to harm anyone. He said that he is a “changed person” now, being older and more mature, and being transferred from Barwon to another prison had been beneficial for him and enabled him to undertake a number of rehabilitative courses (Exhibit A4).
Mr Kamal was asked about the 2009 cancellation of his visa, and the review of that decision by the Tribunal which restored it. He said he was grateful for that decision and agreed he told the Tribunal at that time that he would reform and stop re-offending, but conceded he had gone on to re-offend, even though he had undertaken programmes to assist in rehabilitation.
Mr Kamal agreed that a Family Violence Order had been taken out against him by his former partner. He said that he never assaulted her and that “things happen through drugs.” He agreed that he had been convicted of breaching the Order but said it was because he had been to see his former partner, and said that he would never hurt her.
Mr Kamal was asked about his nieces and nephews, the children of his uncle, Mr SH. He said that he had not been to his uncle’s house but had seen the children “at a barbecue a few years ago,” that they were very young (then), and he did not remember their names “off the top of his head.” Asked if he had a relationship with these children, Mr Kamal conceded that he doesn’t at present, but hoped to in the future, and that it had been hard for him to maintain contact while he was taking drugs.
Mr Kamal said that Mr SH and his aunt, Ms AM, had separated and he had not spoken to either of them “for a very long time.” He believed that Ms AM had moved from where he knew she used to live, and he believed she had remarried around 2016.
Mr Kamal told the Tribunal that his mother died when he was young and his father disappeared. Mr Orchard referred to a document prepared in 2002 by an officer of the Ecumenical Migrant Centre, a branch of the Brotherhood of St Laurence, which stated (SGD, p 17):
Since [the Applicant and Ms AM] have moved to Australia, they have received news that Abraham’s father is alive and in Nazaret, Ethiopia, and that an uncle presumed dead has immigrated to New Zealand. Abraham’s father has advised that he would like to come to Australia, but sponsorship will be extremely difficult because Abraham and [Ms AM] are not yet permanent residents.
Mr Kamal said that was the first time he had seen this document. He told the Tribunal that the only uncle he knows is Mr SH and that he does not have any family other than Ms AM.
The Applicant told the Tribunal he had suffered in the past from anxiety and depression and when not in custody had received a prescription for antidepressants from a Dr Alan Rose in Prahran. Mr Kamal was taken to documents produced under summons from Loddon Prison including a medical note from a psychiatric nurse dated 1 February 2017 headed ‘Initial appointment.’ The note stated that the only medical condition recorded was asthma, and the nurse recorded “IMP [i.e. impression] settled mental state.” Mr Kamal said he did not discuss his mental health with the psychiatric nurse as he had believed she was a general nurse.
When asked where he would live if his visa is reinstated and he is released from custody, Mr Kamal said he would be able to get housing, facilitated by agencies which visit the prison, and would move to privately rent accommodation when he gets a job.
In answers to direction questions from the Tribunal, Mr Kamal said that the only prescription medication he is currently on is methadone, but agreed that he also had a Ventolin inhaler for his asthma, when needed. He said that he was unable to access antidepressant medication in prison.
Mr Nick Gabb
Mr Nick Gabb confirmed the contents of a written statement he had provided dated 11 March 2020 (Exhibit A1).
Mr Gabb said he was aware of the previous cancellation of Mr Kamal’s visa in 2009 because he had provided a statement in support of the Applicant in those proceedings. Mr Gabb told the Tribunal that he had not seen Mr Kamal since 2015 and he had been asked to provide the statement by mutual friends who had visited the Applicant in prison.
Mr Gabb said he had known Mr Kamal for around 20 years. He first met him when Mr Kamal was living in a public housing estate in Prahran and became involved in a local soccer team. He said Mr Kamal was a good mentor to other young people and Mr Gabb believed he could be, again, for other young offenders.
Mr Gabb said he was aware of some of Mr Kamal’s previous offending and he had found him a good-natured person when they first met in 2000-2001, keen to be involved in soccer and a good member of the team.
Mr Benjamin Armstrong
Mr Armstrong confirmed the contents of a written statement he had provided to the Tribunal dated 24 March 2020 (Exhibit A2). Mr Armstrong stated that he had met Mr Kamal through a local soccer programme in 2005-06. Mr Armstrong was a soccer coach for 10 years and appointed Mr Kamal as an assistant coach for many of his soccer clinics. He said he felt Mr Kamal was a great role model to other young players.
Mr Armstrong said he ran soccer clinics for the City of Stonnington and clinics for the ‘Big Issue’ on a weekly basis at the time he met Mr Kamal and also helped stage the ‘Homeless World Cup.’ He said he last spoke to Mr Kamal a week before the hearing and prior to that had visited him in prison about a year earlier.
Mr Armstrong said he was “not 100 per cent certain” about Mr Kamal’s offending record but knew that was the reason the Applicant was before the Tribunal. He said his relationship with Mr Kamal was a positive one, focussed on running football clinics together.
Mr Jarrod Weiss
Mr Jarrod Weiss confirmed the contents of a written statement he had provided to the Tribunal dated 10 March 2020 (Exhibit A3).
Mr Weiss told the Tribunal he had known Mr Kamal for close to ten years; they had both met as teenagers and got on well, also playing sport together. Mr Weiss said he had seen Mr Kamal frequently over the last 10 years, on regular occasions. He said that he had not spoken to Mr Kamal in detail about his offending but knew the Applicant had spent time in gaol.
Mr Weiss said that he is a construction manager for a building firm and that he would be prepared to offer Mr Kamal employment as a labourer if the Applicant has his visa restored and stays in Australia. In answer to a direct question from the Tribunal, Mr Weiss said that, in spite of the current public health emergency, his firm had a significant work programme.
Applicant’s closing written submissions
Mr Kamal lodged written closing submissions, which he advised the Tribunal before the end of the hearing, he would have assistance in writing. In these submissions, the Applicant told the Tribunal that his time in Australia should be divided into three parts: period one being his younger juvenile years; period two being his younger adult years between 2005 and 2012; and period three being his mature years from 2012 onwards. He submitted that the first two periods were closely linked to alcohol and other substance abuse, and interactions with “misguided friends.”
Mr Kamal stated that:
Apart from the Barwon incident, the charges and offences referred to are of a comparatively minor nature and would not usually call upon the Respondent’s review.
He went on to submit:
The Respondent’s review in 2016 was misconceived as it was triggered by the Barwon incident. This effectively occurred outside the realms of the wider Australian community. Moreover, the Respondent took restricted and unfair perspective here, with improper regard to the general facts behind the incident and/or whether the Applicant was acting in self-defence.
Mr Kamal stated that he had (all sic):
...a case of significant merit for self-defence and cast doubt over the required mens rea to commit the charged act. The Applicant proceeded with a case for self-defence but for reasons previously discussed in the Outline of Submission resolved on the date of the hearing to enter a guilty plea. The Applicant was relatively naïve about his rights and was advised by his lawyers to proceed with a plea of guilty. The lawyers took a wrongful perspective about the need of naming “names” in evidence, and took no regard on the consequences with regards to the impact on his visa status. However, at all times the Applicant was entitled to rely on the advice of his lawyers even though it unfolded as being a wrong choice.
The finding of the County Court Judge and his comments referred to by the Respondent’s in its enclosures were reached with little examination and no contest by the Applicant’s lawyers. It was based after a selective Prosecution Summary and was determined on the first day, after the aborting of the trial.
The submissions went on to discuss the Applicant’s perspective on the particular circumstances of the incident in Barwon Prison which led to Mr Kamal’s 2016 conviction for Recklessly cause serious injury.
In terms of the two previous cancellations, and restorations, of the Applicant’s visa, Mr Kamal submitted (all sic):
The Applicant however concedes that he was given warnings by this Tribunal on his future behaviour and that this warning counts as an element of consideration for the Respondent.
In this respect, the Applicant submits that he gave the Tribunal’s warnings due respect and regard. He communicated his remorse and sadness for his troublesome history and has made positive steps with respect to reforming his behaviour. In this respect the Tribunal should give high weight to his good behaviour between the years 2012-2013 when he was last released, and in particular his behaviour since being transferred to Loddon Prison in 2019. There were no incidents.
The Applicant appeals to the Tribunal to allow one last warning, in this case with a “three strikes” tolerance policy. To substantiate his commitment, the Applicant is prepared to provide his undertaking to this Honorable Tribunal not to re-offend and cause any further reason for a s 501 review by the Respondent.
The Applicant takes this undertaking seriously and understands the consequences without any call for excuse. He makes this undertaking knowing he is now mature and on the path of reformation. He hates crime, being association with those who do, and understands the destructive path it leads to.
CONSIDERATION OF THE DIRECTION
Primary considerations
Protection of the Australian community (paragraph 13.1)
The nature and seriousness of the non-citizen’s conduct to date (paragraph 13.1.1)
The Direction requires the Tribunal to take into account certain principles, including that violent crimes are to be viewed very seriously (paragraph 13.1.1(1)(a)). The Direction also requires us to take into account the sentences imposed by the courts for a crime or crimes (paragraph 13.1.1(1)(d)), the frequency of a person’s offending and whether there is any trend of increased seriousness (paragraph 13.1.1(1)(e)), the cumulative effect of repeated offending (paragraph 13.1.1(1)(f)), and whether the non-citizen has re-offended since being formally warned or otherwise being made aware in writing about the consequences of further offending in terms of his migration status (paragraph 13.1.1(1)(h)).
The Applicant himself conceded that he has frequently offended, and that some of his offending has been serious. In the Criminal History Check, the Tribunal notes that there are some relatively minor infractions, such as convictions for littering and some public transport offences. As part of the overall picture of Mr Kamal’s offending, we do not place great significance on these instances of offending, and note that these offences were dealt with proportionately by the courts at the time.
Mr Kamal has, however, persisted in engaging in repeated serious offending, and it has had a cumulative effect. To the extent that it is suggested earlier offending that was considered by learned Deputy Presidents, at previous hearings Mr Kamal had before the Tribunal on the two previous occasions his visa was cancelled, should somehow be ‘compartmentalised’ or not revisited by us in this assessment, we reject those submissions. This argument may have held some weight had the Applicant been able to point to a long period of no offending after those earlier Tribunal proceedings, but he could not.
The Applicant’s submission that the principle of res judicata has any relevance is misconceived. The Tribunal is carrying out an administrative review of whether there is another reason for the mandatory cancellation of Mr Kamal’s visa to be set aside. We are not concerned with ‘re-punishing’ the Applicant; penal sanctions are the province of the courts and the judicial process. However, any notion that the Tribunal should not look at all of Mr Kamal’s criminal conduct since arriving in Australia is rejected.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2)
The Direction requires the Tribunal to assess the nature of harm to individuals or the Australian community should a non-citizen engage in further criminal or other serious conduct, and the likelihood of the person engaging in further conduct of that kind, taking into account the evidence on the risk of re-offending.
In this respect, the nature of harm to individuals if Mr Kamal again engaged in some of the criminal activities of which he has been convicted would be profound. The Tribunal was unimpressed with his evidence seeking to minimise his conviction for trafficking in heroin. The Applicant has a consistent and desolate record of breaching orders of Courts and having to return to Court to have suspended sentences restored or other punishments varied because of such breaches.
In Minister for Immigration and Citizenship v Obele [2010] FCA 1445 (Obele) Katzmann J stated, at [59]:
I disagree that the fact of previous criminal conduct can tell us nothing about the kind of harm that an offender may pose in the future. The assessment of the risk of re-offending in which sentencing judges routinely engage is based on the past. When the Direction focuses on the nature of the relevant conduct it does so in the context of the assessment of the level of risk of harm so the risk of harm posed by the conduct in which the person has engaged is obviously relevant to the risk that he might in the future engage in it…
(Emphasis added.)
Of particular concern to the Tribunal is Mr Kamal’s approach to what he described as the ‘Barwon incident.’ In his oral evidence and in his written submissions before and after the hearing, the Applicant persisted in the assertion that his conduct was in self-defence, or at least partly in self-defence.
The sentencing Judge dealt with this proposition in his sentencing remarks. He referred to submissions by counsel for Mr Kamal that the victim, a fellow prisoner, had threatened to assault and kill the Applicant (GD, p 30). His Honour went on:
What relationship that threat had to the circumstances in this day I am unable to conclude. There is, however, evidence that Mr Kamal certainly had a makeshift body armour, the best you can no doubt do in gaol, which was a motor magazine tied to your stomach, no doubt to stop the effect of any stabbings that he would receive himself.
It is suggested…that Mr Kamal reacted to the threat posed by [name of the other prisoner] by incapacitating him. To accept that behaviour given the CCTV would be outrageous.
It is conceded that while he was initially acting in self-defence, Mr Pearson [counsel for Mr Kamal] goes on…to say that Mr Kamal went too far when he stabbed [the other prisoner]. As I said to Mr Pearson, I have closely analysed the photographs and videos. There is no basis to the suggestion that at any stage, in my view, Mr Kamal was acting in self-defence.
In saying that, I am not saying that there may not have been a threat. We are, after all, talking about a prison environment. The context of this seems pretty amazing. It seems to be occurring on the CCTV some intra prison contretemps, involving a number of prisoners and warders, this attack takes place within that.
(Emphasis added.)
While the papers before the Tribunal included still photographs from the closed-circuit television (CCTV) footage of the day, there was no video before us. However, it is clear that the sentencing Judge had the benefit of seeing the CCTV footage and based on his conclusion, that there was no element of self-defence in Mr Kamal’s conduct, on that information.
It is well-established that the Tribunal cannot go behind the findings of a Court (see, for example HZCP and Minister for Immigration and Border Protection [2019] FCAFC 202, per Colvin J at [181], NDBR v Minister for Home Affairs [2019] FCA 1631, per Mochinsky J at [47], and Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212; (1981) 5 ALD 135).
The Courts have, however, also endorsed a decision of Davies J, sitting as President of this Tribunal, in Re Du Pont and Minister for Immigration and Ethnic Affairs [1983] AATA 180, where His Honour said an applicant may present to the Tribunal matters pertaining to a conviction provided that they do not contradict the facts upon which a court found in arriving at a conviction. It may be accepted that the victim of Mr Kamal’s assault was a convicted criminal, a fact self-evident by him also being incarcerated at HM Prison Barwon. It may also be accepted that there had been, as the Judge termed it, some contretemps between the Applicant, the victim and other prisoners. But the Tribunal does not accept any submissions in this matter which seek to contradict the facts on which His Honour pronounced in his sentencing remarks.
Relevantly, Judge McInerney stated (GD, p 32), after speculating that Mr Kamal may have been ‘getting in first’ when not directly threatened by the other prisoner, but being unable to say whether that was so:
However, I do conclude beyond reasonable doubt, on the material before me, that there was no acting in self-defence by Mr Kamal on this particular occasion.
The attack itself is a heinous and deliberate attack. The impact was obviously dramatic as you can see on the video, the injuries were serious, as is identified by the plea. There was a perforation made to the eye. In addition, there was a fracture to the orbit, indicating the force of this attack. The victim was taken to hospital and required two operations to repair the eye. He was required to wear an eye patch, and sutures were placed in the eye by way of repair that had to be left in place for a period of six months. As a result of the attack, the lens to his left eye was removed and as best I can see of the medical materials, he will eventually need a prosthesis to replace that lens which may well assist insofar as his eyesight is concerned.
In terms of gauging the risk of re-offending, the Judge referred to a psychological report conducted in 2012 by Ms Carla Lechner (GD, p 34), in which she described Mr Kamal as having an ‘historical clinical risk’ – which she deemed to be a moderate risk – of re-offending. His Honour noted that the report was written in February 2012 and the offending against the other prisoner took place in May 2012.
The Judge stated:
You are a person inclined to use weapons such as you have used in this instance. You are a person who has been given many opportunities, but unfortunately, they have all led to you being subsequently imprisoned and you have continued to offend.
True as it is, as Mr Pearson pointed out, that since approximately 2013, that is when you were first subject to the kicking assault, most of the offences have not involved gross violence of this sort. However the factors that play very much in your life are still present whereas those offences for which you are now serving demonstrate not only a failure to comply with the law, but on two occasions the carrying of dangerous weapons and unfortunately, continued use of drugs, which leaves you in a vulnerable position.
On the evidence before us, we find that there is at least a moderate risk of Mr Kamal re-offending. While we may accept, as the Judge did, that there was some evidence that the Applicant had not committed violent offences in the recent past before his assault in prison in 2012, he had nonetheless continued to offend. Mr Kamal’s lack of acceptance of the County Court’s finding in relation to the assault, that he was not acting in self-defence, seriously undermines any other assertions he might make that he is remorseful for his actions. This lack of remorse, or, at the very least, lack of understanding of the gravity of his offending in context, contributes to our view that the risk of re-offending by the Applicant is not a low risk.
We consider that there as at least a moderate risk to the community (in the terms of paragraph 13.1.2 of the Direction) of Mr Kamal re-offending. The conduct in which he has been engaged, in particular serious violent crimes, is, following Her Honour’s reasoning in Obele, relevant in contextualising the risk. Given all the circumstances and that the Applicant has admitted committing serious violent crimes against the person, we find that the prospect of any such re-offending constitutes a risk that is an unacceptable risk.
We find that this consideration weighs against revoking the mandatory cancellation of the visa, and relatively heavily so.
Best interests of minor children in Australia affected by the decision (paragraph 13.2)
The Tribunal must make a determination about whether revocation is in the best interests of relevant children. If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their best interests may differ. The Respondent submitted that it would not appear, on the material before the Tribunal, that this consideration is relevant in Mr Kamal’s case. During the hearing, Mr Kamal was asked about any minor children he considered would be affected by the decision to cancel his visa. As referred to above, the Applicant mentioned some young cousins but said he had not had close interactions with them but had seen them at family gatherings in the past. He was unsure of their names or ages.
We have therefore concluded, in the absence of any other particularised submissions from the Applicant, or any relevant evidence in the documents collated by the Respondent, that this consideration is not engaged.
We accordingly find that this consideration weighs neutrally in this assessment.
Expectations of the Australian community (paragraph 13.3)
Paragraph 13.3(1) of the Direction reads:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate not to revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
In FYBR v Minister for Home Affairs [2019] FCAFC 185 (which was considering identical wording in an earlier version of the Direction), two of the three judges (Charlesworth and Stewart JJ) held, in separate judgements, that this part of the Direction expresses a ‘norm.’ It is not for a decision-maker to make his 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 apprehensions, presumptions or values that may be derived by some other subjective evaluative process.
Stewart J stated, at [100]:
To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations:
. non-citizens will obey Australian laws when in Australia;
.it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere.
.in a particular case, the refusal of the visa may be appropriate simply because of the nature of the character concerns or offences is such that they should not be granted a visa.
Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.”
(Emphasis added.)
His Honour later said (at [102]) that the character assessment, even through the prism of community expectations, may not be decisively against an Applicant, which is why the decision-maker must assess what is ‘appropriate’ in the particular circumstances. Mr Kamal’s criminal history is extensive (GD, pp 25-28). He has appeared before the Courts on some 23 occasions and has been convicted of some 85 offences. The range of sanctions applied by the Courts has spanned the gamut of the tools available to judicial officers, including court orders, fines, suspended sentences, concurrent sentences, convictions with discharge and a large number of terms of imprisonment (see, for example, the sentencing Judge’s remarks GD, p 35 and 36). Mr Kamal’s offending has included serious crimes against the person, property crimes, motor vehicle offences, drug – including trafficking – offences and public order offences.
The Tribunal finds that this consideration weighs relatively heavily against revoking the mandatory cancellation of the visa.
Other considerations
International non-refoulement obligations (paragraph 14.1)
This consideration requires a decision-maker to consider whether any of Australia’s international treaty obligations may be agitated in a particular case. Mr Kamal is a naturalised citizen of New Zealand, so if the cancellation of his visa is not revoked, that is the country to which he would be repatriated.
The Tribunal finds that this consideration is not engaged, and therefore weighs neutrally in this assessment.
Strength, nature and duration of ties (paragraph 14.2)
This consideration requires the Tribunal to have regard for how long a non-citizen has resided in Australia, including whether the person arrived as a young child, noting that less weight should be given to ties where the non-citizen began offending soon after arrival and more weight should be given to time the non-citizen has spent contributing positively to the community.
The Tribunal must also consider family or social links, and the strength and nature of those, between the Applicant and any of his immediate family who are Australian citizens. On his evidence, his closest relative in Australia is Ms AM, his aunt, with whom he left Ethiopia and travelled to New Zealand. Mr Kamal told the Tribunal that he had not had contact with her for some years, did not know where she now lived, and he believed she had remarried or re-partnered, after separating from her former husband, Mr SH.
We note that Mr Kamal came to Australia in July 2000, aged 14 (SGD, p 111). He attended school in Australia. His aunt, on the evidence, has settled in Australia and Mr Kamal told the Tribunal she has subsequently become a naturalised Australian citizen.
The Tribunal heard evidence from three character witnesses, Mr Gabb, Mr Armstrong and Mr Weiss, all of whom had initially met Mr Kamal through sport. There was evidence given, especially by Mr Armstrong, of a time in Mr Kamal’s early life in Australia where he had made some positive contribution through helping to coach soccer, participating in teams and serving as a mentor to younger players. The Tribunal accepts this evidence, but we also note that any positive contribution Mr Kamal made was, sadly, relatively short-lived.
We also note, in respect of paragraph 14.2(1)(a)(i) of the Direction, that the Applicant’s first recorded appearance before the court was in April 2002, less than two years after his arrival in this country, and that this was the commencement of a depressing succession of court appearances.
We accept, on the basis of their oral evidence, that the three character witnesses are persons, apparently Australian citizens, who have social links with Mr Kamal and they would be affected, to some extent, if he is repatriated to New Zealand.
We do not have contemporary evidence before us of what effect there would be on Mr Kamal’s only apparent blood relative in Australia, Ms AM. Notwithstanding that we accept that, if Ms AM were aware of the immigration status of Mr Kamal, she would be affected, and potentially adversely affected, if his visa is not restored, the extent of that impact is difficult to measure, given the Applicant’s stated lack of interaction with her in recent years.
Mr Kamal has spent a little over half his life in Australia, and so we conclude, on balance, that this consideration weighs slightly in favour of revoking the mandatory cancellation, weight significantly tempered by the early date at which he commenced his offending behaviour.
Impact on Australian business interests (paragraph 14.3)
The Tribunal observes that a decision-maker would only generally give weight to an employment link where visa cancellation would significantly compromise the delivery of a major project or important service in Australia. There was no information before us that would indicate this consideration is relevant.
We find that this consideration is not engaged in this assessment, and therefore weighs neutrally.
Impact on victims (paragraph 14.4)
This consideration is only relevant where a victim of a non-citizen’s criminal offending is aware of the situation regarding the person’s migration status.
There was no evidence before the Tribunal of this nature, so we find that this consideration weighs neutrally.
Extent of impediments if removed (paragraph 14.5)
The Direction sets out that the Tribunal must consider the extent of any impediments that a person may face if removed from Australia to his or her ‘home country’ (in this case, New Zealand) in establishing themselves and maintaining basic living standards, in the context of what is generally available to other citizens of that country.
The Direction sets out that we should take into account the person’s age and health, any substantial language or cultural barriers, and any social, medical or economic support available to them in the country of reference.
Mr Kamal wrote in his written closing submissions:
…it is indisputable that the Applicant has no family, friends or contacts overseas. There is no real nexus for him in any part of the world except Australia. A removal from Australia would cause significant hardship, pain and suffering. If returned back to New Zealand he has no known address to him to head beyond the airport. It would cause a detrimental effect on his mental wellbeing and the improvements he has recently gained.
We accept Mr Kamal’s evidence that he does not have relatives or any close friends in New Zealand. He will have some understanding of the social environment in that country, because of the years he spent living there, but we agree that his moving to Australia aged 14 would mean that knowledge is historical. We also note that New Zealand’s cultural, social, and government support structures are similar to those in Australia, and that Mr Kamal, being a New Zealand citizen, would have the same rights of access to social security benefits and other welfare support as is available to other New Zealanders, especially in any period before he is able to commence gainful employment.
We note on the evidence that Mr Kamal appears to be physically fit and that he has successfully completed a number of courses (Exhibit A4) including a Certificate II in Cleaning Operations and that he has provided to the Tribunal a copy of a nationally recognised Construction Induction Card which is evidence that he is registered to perform construction work. This documentation would be able to be presented in New Zealand as proof of certain qualifications and skills gained.
We note, from the medical records before the Tribunal, that Mr Kamal does not have any significant health conditions, recognising he is asthmatic and has a Ventolin inhaler. Mr Kamal made certain submissions about his mental health and that a previous general practitioner had prescribed him medication in the past, but said that he was unable to obtain antidepressants in prison. There was no other documentary evidence of any contemporary mental health condition and, to the contrary, the medical records from the most recent prison in which Mr Kamal has been housed indicated no continuing mental health condition. There is evidence (GD, p 38) that the Applicant had suffered a degree of Post-Traumatic Stress Disorder, because of exposure to early trauma and attachment disruption. Judge McInerney refers to this in his sentencing remarks, but not to the source of the diagnosis, but it is reasonable to conclude it may have been part of Ms Lechner’s assessment, to which His Honour also refers elsewhere. In the absence of further specific information, the Tribunal is unable to determine whether a mental health condition now exists, but notes that the Applicant would have access to mental health services available to other New Zealand citizens.
In terms of the methadone programme, we consider that, as a New Zealand citizen who could provide proof to the New Zealand authorities that he was registered in Australia for such a programme, Mr Kamal may be able to continue with this treatment support. Under section 33(1)(c) of the AAT Act we have informed ourselves and note that the New Zealand District Health Boards support opioid substitution treatments at community pharmacies for persons who have been assessed and recommended for such treatment by their general practitioner.
We also note that Mr Kamal is fluent in English and there would be no language barriers and no apparent cultural barriers were he to be returned to New Zealand. However, we do conclude that the lack of any family or a circle of friends in New Zealand would make it more challenging for Mr Kamal to re-establish there.
We find, because half of Mr Kamal’s life, and all of his adult life, has been spent in Australia, that this consideration weighs slightly in favour of revoking the mandatory cancellation of the visa.
SUMMARY AND CONCLUSION
We have considered the written and oral submissions of both the Applicant and the Respondent, and the documents before us. We have found that two of the primary considerations weigh heavily against the Applicant, and the other primary consideration is not engaged and weighs neutrally. In regard to the other considerations, we have found that they are either not relevant or, in respect to the strength, nature and duration of ties and the extent of impediments if removed, they both weigh slightly in Mr Kamal’s favour.
We accept that the early life of Mr Kamal was traumatic, involving displacement, deprivation, the loss of his mother and the disappearance of his father. While there is some doubt about whether his father may not have disappeared permanently and may, according to one report, have been relocated, we do accept the Applicant’s evidence that he has had no contact with his father since being very young. This backdrop of Mr Kamal’s early life was obviously a significant factor in the 2005 decision of the Tribunal to give him ‘one last’ chance to cease offending. He failed to heed that clear warning.
In spite, again, of his visa being cancelled for a second time some three or so years later, and going through the process of the Tribunal deliberating and, on the strength of assurances made by Mr Kamal, restoring his visa, the Applicant has, perhaps not steadily, but certainly somewhat relentlessly, continued to re-offend. This must be seen through the lens, which Mr Kamal freely admitted in evidence, of acute awareness of the potential immigration consequences if he continued to re-offend.
Accepting that the Applicant was helped in the preparation of his closing submissions to the Tribunal by another person, it is necessary for us to explicitly record that any notion in those submissions that the Tribunal should apply a “three strikes tolerance policy”, as it is described, is rejected as completely misconceived. Mr Kamal knew that he held a temporary visa. In fact, his state of knowledge was better than many holders of the same class of visa, precisely because that visa had twice before been cancelled, and had been twice restored, as we have said, after solemn assurances were made of no more offending by the Applicant.
We accept that the assault at HM Prison Barwon was within the precincts of an institution and related, apparently, to internal interactions there, but it was nevertheless a very violent attack, and not one done in self-defence. That Mr Kamal continues to argue this proposition, and did so in written submissions after the hearing, cast in our minds serious doubt about his acceptance of the determination of the Court, and hence contributes to a view that he may re-offend. The re-offending may, or may not, be of a similar violent nature, but with Mr Kamal having a criminal history which includes involving other serious assaults in the community, that could not be entirely ruled out. There is, at least as we have found, and as a clinical psychologist found in 2012, a moderate risk of re-offending, which has not abated. The evidence of violent conduct just months after that assessment is proof of that. With this background, and Mr Kamal’s efforts at the hearing to essentially seek to paint a gloss of ‘self-defence’ on his serious attack on a fellow prisoner, we conclude it is an unacceptable risk. In this context, we were also troubled by his statement in evidence that he is not “a violent person and would never do anything to harm anyone.” The evidence of his criminal convictions contradicts that assertion.
We have weighed all the considerations, individually and cumulatively, and considered the particular circumstances of the case, as we are required to by paragraph 6.1(2) of the Direction. We find that the discretionary power provided for in s 501CA(4)(b)(ii) of the Act is not enlivened, in this case. That is, we find there is not ‘another reason’ why the mandatory cancellation of the visa should be revoked. As a consequence, the Tribunal finds that the decision under review not to revoke the mandatory cancellation of Mr Kamal’s visa was the correct decision in law and the preferable decision where a discretionary power may be exercised.
DECISION
The Tribunal decides to affirm the decision under review.
(i)
(ii) I certify that the preceding 126 (one hundred and twenty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris and Senior Member P. Q. Wood
…[sgd]……………………………………………
Associate
Dated: 24 April 2020
Date of hearing:
1 April 2020
Applicant:
By videoconference
Advocate for the Respondent:
Solicitors for the Respondent:
Mr C Orchard
Sparke Helmore Lawyers
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