Kilmartin and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2019] AATA 6490

Kilmartin and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2019] AATA 6490 (24 December 2019)

Division:GENERAL DIVISION

File Number(s):      2019/6611

Re:Tiari Kilmartin

APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd  

RESPONDENT

DECISION

Tribunal:Dr N A Manetta, Senior Member

Date:24 December 2019

Place:Brisbane

The Tribunal affirms the decision under review.

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Dr N A Manetta, Senior Member

Catchwords

MIGRATION – mandatory cancellation of Applicant’s visa – where Applicant has a substantial criminal record – whether discretion to revoke mandatory cancellation should be exercised – protection of Australian community – expectations of Australian community – where Applicant convicted of a robbery offence involving violence  – where Applicant has an escalating criminal history – interests of minor children – other considerations – decision under review affirmed.

Legislation

Migration Act 1958 (Cth)

Cases

FYBR v Minister for Home Affairs [2019] FCAFC 185 (24 October 2019)

Secondary Materials

Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018

REASONS FOR DECISION

Dr N A Manetta, Senior Member

24 December 2019

1. This is an application by Mr Tiari Kilmartin seeking a review of a decision of the Respondent’s delegate that the mandatory cancellation of Mr Kilmartin’s visa (effected under section 501 of the Migration Act, 1958 (Cth)) should not be revoked. Mr Kilmartin, a citizen of New Zealand, will be obliged to leave Australia and return to that country unless the visa cancellation decision is revoked.  He is presently in immigration detention in Western Australia.  At the hearing before me, Mr Kilmartin represented himself; the Respondent was represented by Ms Hargrave.

2. Hearing the matter afresh, I note that I must decide whether to revoke the cancellation decision taken in respect of Mr Kilmartin’s visa. I must reach the correct or preferable decision by reference to the evidence before me. I need not find any error in the decision- maker’s approach before setting it aside.

   STATEMENT OF CONCLUSION 

3. I have decided to affirm the decision under review. I set out below the salient facts and my reasons for this conclusion.

   SALIENT FACTS

4. Mr Kilmartin gave evidence before me as did his partner, Ms Weinrichova.  Mr Kilmartin is 22 years of age. He was born in 1997 in New Zealand. His mother and father are both citizens of New Zealand and still reside there, in a small town north of Auckland.

5. Mr Kilmartin has two brothers and two sisters. His sisters are living with his parents and his younger brother also lives in New Zealand. His older brother lives in Australia.

6. Mr Kilmartin first came to Australia in 2012 on holiday with his family, staying for some two to three months before returning to New Zealand. In 2013, Mr Kilmartin came to Australia for some six months and stayed with family (uncles, aunts, and cousins) in Brisbane. He went back to New Zealand, he said, for Christmas, but found that he was getting into trouble with the police there.  He said in his evidence that he fell under the influence of bad friends. He said he was placed on probation in New Zealand. He stayed in New Zealand until coming out to Australia again in 2014.  He came out for some 10 to 12 days on that occasion before returning to New Zealand.

7. So far as his education is concerned, Mr Kilmartin achieved his Level II NCA levels before beginning what he described as an alternative education pathway, which he said was better suited to his skills.  There is a reference in the evidence[1] to Mr Kilmartin’s having left school after Year 10.

   [1] Exhibit 1, at 34.

8. In June or July of 2016, at the age of 19, Mr Kilmartin came back to Australia with the intention of settling permanently. He went to live with his uncle and aunt in Brisbane.

9. Mr Kilmartin obtained work very quickly as a concreter. He obtained that work through his uncle, who was an employee of a concreting business and was able to get Mr Kilmartin involved in this line of work from time to time. Mr Kilmartin said he was employed one or two days a week.  At the same time, he was doing some handyman work for his uncle and aunt’s landlord. For the first twelve months, he said, he spent every weekend working for the landlord renovating the landlord’s properties.

10. For a month and a half, he also worked as a house removalist full-time. His work history also includes a short period in a scrap-metal yard on the Gold Coast dismantling vehicles and draining them of liquids before they were crushed.

11. In Australia, Mr Kilmartin became reacquainted with a girl whom he had known in New Zealand, Ms Weinrichova, who gave evidence at the hearing.  They became a couple.  In 2017, they moved into the downstairs flat in Mr Kilmartin’s uncle’s house. Mr Kilmartin described the relationship in his evidence as sometimes poor but also sometimes good.  Both developed drug and alcohol addictions. One drug that was frequently taken was a type of methamphetamine commonly known as “ice”.

12. Mr Kilmartin gave evidence that having given up ice for some time, he became re-addicted when one of his close friends died in Australia. He said he began to use it to help him cope with his friend’s death, and his use led, predictably, to his re-addiction.

13. Mr Kilmartin has a young child with his partner, Ms Weinrichova. It was clear from her evidence that the couple was homeless for a time, while she was expecting their child. That was also a time when both were taking drugs and drinking. While homeless, they “couch-surfed” and improvised as best they could.  At some points, however, they had no shelter at all.  Difficulties arose between the couple during this time, to which Ms Weinrichova adverted in her evidence.

14. Whilst Ms Weinrichova was expecting their child, Mr Kilmartin suffered the loss of his grandfather. He drank heavily at that time to cope.  One evening he took a taxi to return to the place where he was living.  He stole a wallet from the driver.  It contained money and a credit card. The offending involved Mr Kilmartin pushing the taxi-driver in the face. Mr Kilmartin used the credit card.  He was charged with robbery. He pleaded guilty and received a sentence of 18 months.   A period of almost six months’ pre-trial custody was counted towards the 18 months, and the sentencing Judge released him on parole immediately. 

15. Mr Kilmartin then breached the “curfew” conditions of his parole by not returning to his abode by the set time.  He was gaoled.  Whilst in gaol, he reapplied for parole. He gave evidence, which I accept, that the parole board had granted him further parole with effect from 29 March 2019, but on 28 March 2019, he received a notice from the Department that his visa was cancelled.  I understand that he was taken into immigration detention immediately on his release on parole.

    DELEGATE’S DECISION

16. The visa cancellation was mandatory. It was mandatory because Mr Kilmartin had failed the so-called “character test”.  He had a “substantial criminal record” in that he had been sentenced to a term of imprisonment of at least 12 months, and, at the time as the delegate’s decision was taken and received by him, he was serving a period of imprisonment full-time in a custodial institution, even though he was to be released the next day.[2]  In these circumstances, the Act makes it clear that Mr Kilmartin had to have his visa cancelled: see 501(3A).  The delegate’s decision was correct on the evidence before me.

    [2] See s 501(3A), (6)(a), and (7)(c) of the Act.

17. The delegate had to decide whether he or she ought to revoke the mandatory visa cancellation decision.  The delegate had a discretion in this regard and was obliged to be guided by Direction 79, issued under section 499 of the Act.

18. The question before me, hearing the matter afresh, is whether I should revoke the cancellation decision in my discretion. Like the delegate, I must have regard to the guiding principles set out in Direction 79.

    RE-EXERCISING THE DISCRETION

19. I do not believe that in the circumstances of this case sufficient grounds exist to revoke the visa cancellation decision.  My reasons for this conclusion follow.

20. I accept that the explicit objective of Direction 79 (as specified in para 6.1) is the regulation in the national interest of the coming into and presence in Australia of non-citizens. I also note that under para 6.1(3), I am obliged to consider the specific circumstances of Mr Kilmartin’s case.

21. I note further that para 6.2(1) in the “General Guidance” section records that “the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens”. In para 6.3(5) in the “Principles” section, it is further recorded that “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”.  I note that the length of time the non-citizen has been making a positive contribution to the Australian community and the consequences of a visa cancellation for minor children and other immediate family members in Australia are relevant considerations: para 6.3(7).

22. So far as re-exercising the discretion is concerned, I must take into account the considerations specified in Part C. These are split into two categories: “primary” considerations and “other” considerations. I note the primary considerations should generally be given greater weight than the other considerations: para 8(4). Nevertheless, the Full Federal Court[3] has indicated that in an appropriate case the “other” considerations will outweigh the primary considerations.

    [3] See FYBR v Minister for Home Affairs [2019] FCAFC 185 (24 October 2019) at [76], [105].

    Primary Considerations

23. I turn now to consider the three primary considerations specified in Part C. They are:

    ·protection of the Australian community from criminal or other serious conduct;

    ·the best interests of minor children in Australia; and

    ·the expectations of the Australian community.

24. I am directed by para 13.1(1) “to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens”.  I am also directed by para 13.1.1(e) to have regard to the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness.  I find that overall Mr Kilmartin’s offending has become a real concern. Mr Kilmartin has an extensive criminal history which was before the Tribunal.[4]  I shall not set it out.  It is true that most of the offending has been relatively minor, attracting fines only, but the offending has been persistent and Mr Kilmartin’s robbery of the taxi driver with a degree of force represents a recent escalation.  The robbery is not indicative of a “trend”; but it was recent and is the most serious offence of which Mr Kilmartin has been convicted. 

    [4] The New Zealand record appears in Ex 1, pp 30-31 and the Australian record in Ex 1, pp 26-29.

25. The sentence Mr Kilmartin received for the robbery was his second sentence of imprisonment.  An earlier sentence (two months suspended) had been imposed by the Redcliffe Magistrates Court on 28 September 2018.  The offending in relation to this offending comprised entering premises and committing an indictable “break” offence on 19 June 2018. On 20 June 2018 (i.e., the very next day), Mr Kilmartin robbed the taxi- driver.

26. I note further that although he was released on parole on 13 December 2018, Mr Kilmartin was again found in possession of drugs on 16 February 2019 and a conviction and fine were imposed.

27. Ms Hargrave pressed me with a submission that the robbery of the taxi-driver was a crime of violence.  I accept this submission, but to a limited extent only. Mr Kilmartin was not charged with any separate offence of assault.  One of the features of the offending, however, was the push in the face Mr Kilmartin gave the driver. I accept that the push was an aggravating feature of the offending, as found by the sentencing Judge,[5] but the Judge also described the violence as “towards the lower end of the range and reactive”.[6]  

    [5] Ex 1, at 33.

    [6] Ibid at 34.

28. I am directed to take into account the sentences that courts have imposed. The court imposed a sentence of 18 months in respect of the robbery.  I would infer from the sentence that the offending was considered serious.  Mr Kilmartin’s prior criminal convictions must have increased the length of the sentence, but equally, his guilty plea must have resulted in a lower sentence than might otherwise have been imposed. 

29. Mr Kilmartin’s history of offending in Australia is preceded by a persistent history of minor offending in New Zealand.[7] From a relatively young age, Mr Kilmartin engaged in various offences involving, amongst other things, wilful damage by graffiti, shoplifting on numerous occasions, and unlawful interference with a motor vehicle.

    [7] Ex 1, pp 30-31.

30. All in all, I would regard Mr Kilmartin’s offending history as continuous and it has recently increased in seriousness. I find it is a real concern that Mr Kilmartin, having left New Zealand to commence a life in Australia, resumed an anti-social pattern of behaviour soon after his arrival.  As I have said, the offending has recently escalated.

31. I must also take into account the risks to the Australian community. I must have regard to, cumulatively, the nature of the harm to individuals or the Australian community should Mr Kilmartin engage in further criminal or other serious conduct and the likelihood of his engaging in further criminal or other serious conduct. I note that decisions should not be delayed in order for rehabilitative courses to be undertaken.

32. In this regard, I would note that the principal risk to the Australian community will be further theft or robbery. These are not trivial crimes. I take into account that force, although limited, was used to deprive the taxi-driver of his property.

33. So far as further criminal activity is concerned, given the information before me, I believe there is a risk that Mr Kilmartin will reoffend. I accept that he is genuinely remorseful at this point in time.  The prospects of gaol and deportation are also strong and obvious deterrents.

34. Given Mr Kilmartin’s history of offending in New Zealand and Australia, however, I think reoffending is a strong possibility.  Much of the offending to date has apparently been accompanied by alcohol or drug misuse, and I have no evidence before me that shows that Mr Kilmartin has engaged successfully in drug rehabilitation courses. I accept that Mr Kilmartin undertook a course of rehabilitation which he called a “reintegration course” whilst he was in immigration detention in Queensland.  This was interrupted, unfortunately, by his transfer to a Western Australian immigration detention facility; but it was not a comprehensive drug and alcohol rehabilitation program so far as I am aware.  I accept also that he had earlier undertaken drug and alcohol counselling in New Zealand, but that proved ineffective.

35. Moreover, given his persistent offending in Australia, I am not satisfied that there are family members living here who are able to exercise effective guidance.  Mr Kilmartin is still young and clearly needs guidance. 

36. I find, therefore, that the first primary consideration, the protection of the Australian community from criminal or other serious conduct, weighs significantly against Mr Kilmartin.

37. Secondly, I must consider the best interests of minor children in Australia. There are very sad circumstances surrounding Mr Kilmartin’s child. She is presently being cared for by Ms Weinrichova’s parents. It would appear from Ms Weinrichova’s evidence that care of the child has been committed formally to them because she has severe health problems caused at least in part by her drug addiction.  Her evidence was that she is in the process of recovery.  Mr Kilmartin has been separated from his child for some time. I do not believe he has any meaningful relationship with her.  

38. Were Mr Kilmartin to stay in Australia, his access to his child would be limited, I believe.  It is reasonable to infer that Ms Weinrichova’s parents would have reservations about unsupervised contact. That said, I do not exclude the possibility that Mr Kilmartin and Ms Weinrichova might in due course so rehabilitate themselves that they would become effective parents and establish a meaningful family life. That is not the present situation, however.  Until Mr Kilmartin engages successfully in rehabilitation, and renounces all alcohol and drugs, his relapsing into further offending is a real risk. Moreover, there are other persons who fulfil a parental role in relation to the child (namely, Ms Weinrichova’s parents and, to the extent that she is capable at the present time, Ms Weinrichova herself). 

39. I do not find, therefore, that the best interests of Mr Kilmartin’s child are a matter that weighs in Mr Kilmartin’s favour at the present time.  

40. The third primary consideration to which I must have regard is the expectations of the Australian community. Here, I note that the Australian community expectations are set out in the direction itself: they are not matters I am to speculate about for myself.  It is sufficient in this case to note that the Australian community expectations do not favour revocation of the visa cancellation decision.

41. All in all, the primary considerations favour affirming the decision.

    Other considerations

42. I turn now to the “other” considerations. These considerations include but are not limited to five matters that are listed in para 14. The first matter (international non-refoulement obligations) does not arise. The third and fourth matters (the impact on Australian business interests and the impact on victims) do not arise either.

43. The second matter is the strength, nature, and duration of Mr Kilmartin’s ties. In para 14.2, I am directed to attach less weight to the length of the non-citizen’s residence in Australia where the non-citizen began offending soon after arriving in Australia. Mr Kilmartin has not spent much time in Australia and, in any event, he began offending soon after his arrival in 2016.

44. Mr Kilmartin has a brother here and has a positive relationship with his uncle and aunt. These are matters that count in his favour. Mr Kilmartin said he also enjoys a positive relationship with his mother and father in New Zealand. He could return and live with them. He has siblings in New Zealand as well. I think the strength of his ties to his uncle and aunt and other family members in Australia is counterbalanced by the strength of his ties to his mother and father and other family members in New Zealand.

45. I take into account that Ms Weinrichova wishes strongly to re-establish a life with Mr Kilmartin and that she believes they can resume in due course a normal life together as a family.  Mr Kilmartin wishes to do the same.  I take those sincerely held wishes into account.  I take into account the terms of her supporting letter to the Tribunal[8] and her oral evidence.  I also take into account the fact that Ms Weinrichova cannot return to New Zealand because her parents will not permit her to remove the baby from Australia. Moreover, she referred in her evidence to a warrant for her arrest that would await her on her return to New Zealand.  All in all, I accept that for the foreseeable future, Mr Kilmartin’s removal from Australia will mean the end of personal contact between the couple.

    [8] Ex 3.

46. I must also have regard to the extent of impediments to Mr Kilmartin were he to leave. I accept that Mr Kilmartin would face a more difficult employment market. It would be in his best interests, in my opinion, to move back to live with his mother and father. The town is small and offers few opportunities.  I accept Mr Kilmartin’s evidence that he dislikes the town but it seems to me that it is the best place for him so that he can begin the process or rebuilding his life.  Mr Kilmartin does not have a strong work history in Australia. I accept that he has proven himself open to various job opportunities, but the overall impression I have is that he has been doing various unconnected jobs to get by. That does not count against him, I hasten to add, but on the evidence before me he does not have firm ongoing employment prospects that would be jeopardised by his return to New Zealand.  I do accept, however, that he will most likely face a period of unemployment in New Zealand and that overall he has better employment prospects here. That is a matter that I take into account in his favour.

1. So far as New Zealand’s welfare system is concerned, I do not believe there are any issues I need address.  There are no issues relating to language or cultural barriers since Mr Kilmartin grew up in New Zealand and lived there until three or so years ago.

   CONCLUSION AND DECISION

2. As I have noted, I am generally required to give more emphasis to primary considerations. I also noted earlier that this does not exclude giving other considerations a stronger emphasis in an appropriate case. This is a case where the other considerations do not have sufficient weight to counterbalance the primary considerations. All in all, it may be said that Mr Kilmartin began his life in Australia a relatively short time ago by making poor choices.  He soon began to offend, and his offending has recently escalated.  This is a case where the interests of the Australian community are better served by Mr Kilmartin’s removal and these interests outweigh the considerations in his favour.

3. Ms Hargrave submitted domestic violence was a feature of the relationship between Mr Kilmartin and Ms Weinrichova.   I have reached my conclusion without regard to that submission and I need not take the issue further. 

4. The decision of the Tribunal will be to affirm the decision under review.

51.     I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for the decision herein of Dr N A Manetta, Senior Member.  

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Administrative Assistant Legal

Dated 24 December 2019

Date of hearing:	18 December 2019
Applicant:	In person

Representative for the Respondent: Ms. L Hargrave of Clayton Utz