KNYX and Minister for Home Affairs (Migration)

KNYX and Minister for Home Affairs (Migration) [2018] AATA 3886 (16 October 2018)
Division:GENERAL DIVISION
File Number: 2018/4282
Re:KNYX
APPLICANT

AndMinister for Home Affairs
RESPONDENT

Decision
Tribunal:Senior Member M Griffin QC
Date:16 October 2018
Place:Sydney

The Tribunal concludes there is not “another reason” why the decision to cancel the Applicant’s visa should be revoked. The decision of the Delegate should therefore be affirmed.

.........................[sgd]...............................................
Senior Member M Griffin QC
CATCHWORDS
MIGRATION – Revocation of visa cancellation – Ministerial Direction No. 65 applied – primary considerations - protection of Australian community - best interests of minor children in Australia - expectations of Australian community – other considerations - strength, nature and duration of ties to Australia - extent of impediments Applicant may face if he is removed – decision under review affirmed
LEGISLATION
Migration Act 1958 – ss 501, 501CA
CASES
Gaspar v Minister for immigration and Border Protection [2016] FCA 1166
Oluwafemi and Minister for Home Affairs [2018] AATA 690
SECONDARY MATERIALS
Ministerial Direction No. 65 Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA – paragraphs 7, 8, 9, 13
REASONS FOR DECISION
Senior Member M Griffin QC
16 October 2018
DECISION

The Applicant has sought review of a decision of a delegate of the Respondent not to revoke the cancellation of his Subclass 444 Special Category (Temporary) visa.
The Applicant does not pass the character test. The Tribunal must therefore consider whether there is 'another reason' why the cancellation of the visa should be revoked: see s 501CA(4)(b)(ii) of the Migration Act 1958 (the Act).
The Applicant is a citizen of New Zealand and is 42 years old. He has lived in Australia since 1984 after moving to Australia as an eight year old.
A delegate of the Respondent cancelled the Applicant's visa on 13 January 2017 in accordance with the mandatory cancellation power at s 501(3A) of the Act.
The Applicant's visa was cancelled because he has a 'substantial criminal record' on the basis of having been sentenced to a term of imprisonment of 12 months or more:

ss 501(6)(a) and 501(7)(c) of the Act.
On 27 January 2017, the Applicant made representations to have the cancellation revoked under s 501CA of the Act.
On 23 July 2018, a delegate of the Respondent found that the discretion under s 501CA(4) to revoke the cancellation under s 501(3A) was not enlivened.
On 31 August 2018, the Applicant applied for review of that decision.
Criminal history
The Applicant's criminal history is set out in a National Police Certificate dated 21 June 2017 issued by the Australian Federal Police at pages 18 – 24 of the G documents.
The Applicant has an extensive history of violent offending consisting of assault, resist police, assault occasioning bodily harm, common assault, assault officer in execution of duty, assault prison officer, assault with intent to rob armed with offensive weapon and destroy or damage commonwealth or public property.
The Applicant also has an extensive criminal history which contains convictions for possession of prohibited drugs, goods in personal custody, shoplifting, steal from the person, larceny, never licensed person drive vehicle on road, driver never licensed, drive vehicle during disqualification, breaches of community service orders and breaches of bond.
The Applicant has been sentenced to several periods of imprisonment of 12 months or more, including, most recently, on 31 January 2014, when he was convicted in the Liverpool Local Court of common assault and sentenced to 12 months imprisonment.
On 13 January 2017, the Applicant was serving a period of imprisonment on a full-time custodial basis in relation to the conviction on 25 November 2016 for driving a motor vehicle during disqualification period when his visa was cancelled under s 501(3A) of the Act.
ISSUES
Relevant legislation and policy
If a visa has been cancelled under s 501(3A) and the person has been invited to make representations about the revocation of the cancellation, s 501CA(4) of the Act provides that:

The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The Applicant was invited to make representations about the revocation of the cancellation of his visa when notified of the mandatory cancellation by letter dated 13 January 2017. The Applicant made representations in accordance with the invitation, and within the timeframe allowed.
As the Applicant has been sentenced to a term of imprisonment of 12 months or more he has a 'substantial criminal record' and does not pass the character test (see ss 501(6)(a) and (7)(c) of the Act).
The Tribunal therefore must determine whether there is 'another reason' why the cancellation should be revoked. This involves an evaluative process, requiring the Tribunal to examine factors for and against revoking the cancellation, and an assessment and evaluation of those factors leading to the formation of a view as to whether the cancellation should be revoked: Gaspar v Minister for immigration and Border Protection [2016] FCA 1166 at [38].
In exercising the discretion under s 501CA(4) the Tribunal must comply with Direction 65.[1] For the purposes of the exercise of the power at s 501CA(4), the considerations to be taken into account are set out at Part C of Direction 65, including considerations designated as 'primary considerations', and, where relevant, considerations designated as 'other considerations' (see Direction 65, at paragraph 7(1)). Generally the primary considerations should be given greater weight than the other considerations (Direction 65, at paragraph 8(4)).
[1] Ministerial Direction No. 65 Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA.
The primary considerations are:
·the protection of the Australian community, consisting of consideration of the nature and seriousness of the relevant person's conduct, and the risk to the Australian community should the person commit further offences or engage in other serious conduct;
·the best interests of minor children in Australia affected by the decision; and
·the expectations of the Australian community.
The other considerations include, relevantly to the Applicant's circumstances:

·the strength, nature and duration of ties to Australia; and
·the extent of impediments that the Applicant may face if he is removed.
Protection of the Australian community
With respect to the nature and seriousness of the Applicant's conduct, the Tribunal must have regard to the following factors:
·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,[2] noting that:
[2] Direction No. 65, paragraph 9.1(1).
Remaining in Australia is a privilege that Australia confers on noncitizens 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.[3]
[3] Ministerial Direction No. 65, paragraph 13.1(1).
·the nature and seriousness of the Applicant's conduct to date, relevantly taking into account:
oviolent crimes are viewed very seriously;
ooffences against government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
othe sentence imposed by the courts for a crime;
othe frequency of offending;
othe cumulative effect of repeated offending;
owhether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status; and
owhere the non-citizen has committed a crime while in immigration detention.
With respect to the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal should relevantly have regard to the following factors:
·the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases;
·the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
·the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
The Applicant has a significant criminal history which comprises convictions for violent offences, including for assault, assault occasioning actual bodily harm, assault officer in execution of duty and multiple counts of robbery armed with offensive weapon. The Applicant has also been convicted of 15 driving offences and four offences concerning drugs.
The Applicant's history of offending took place in two distinct periods: 1991 - 2002 and then following his release from a significant sentence of imprisonment, from 2013 - 2016.
He has served seven separate periods of imprisonment totalling 5729 days (15 years, 8 months, 1 week and 4 days) during his time in Australia. Therefore, of the 34 years the Applicant has been in Australia, nearly 16 of those years have been spent in prison, and of his 24 years as an adult, only eight have been spent at liberty in the community.
The extent of the sentences of imprisonment the Applicant has received is indicative of the extremely serious nature of the Applicant's offending.
Offending in 1991 – 2002
In the period 1991 - 2001, the Applicant was convicted of multiple counts of assault, and for receiving stolen goods, resisting police, offences in relation to drugs, larceny, shoplifting, 'goods in personal custody suspected of being stolen', and offences for breaching court orders.
His offending in this period culminated in him being convicted and sentenced in 2003 of the following offences:
·13 counts of robbery with an offensive weapon (including also one count of assault with intent to rob armed with offensive weapon and one count of aggravated robbery with wounding causing grievous bodily harm);
·two counts of driving vehicle recklessly/furiously or speeding/manner dangerous;
·one count of common assault;
·one count of possession of a prohibited drug;
·three counts of driving a vehicle while never having been issued a licence; and
·one count of driving an uninsured and unregistered motor vehicle.
The Applicant spent more than 11 ½ years in prison for these offences.
The offences were committed between 21 November 2001 and 19 February 2002. The amount of money taken during the course of these offences totalled nearly $27,000. The Applicant committed the robberies armed with a knife, and a screwdriver. The Applicant also wore a mask in each robbery, and, in company with another assailant threatened staff, forcing them to either open the safe or hand over money from the till. In one of the robberies, a baseball bat was used to hit the victim several times.
On one occasion in January 2002, the Applicant caused an injury to a victim with the knife used in the robbery.
The Applicant was sentenced to a total of 12 years imprisonment with a non-parole period of 8 years in connection with these offences.
In relation to the Applicant's driving convictions in 2003, which were dealt with at the same time as the robbery offences, those offences were committed in the course of the Applicant escaping from the scenes of the robberies.
The circumstances of the dangerous driving offence were particularly serious.
Offending post 2013
Despite the Applicant representing to the Court in 2003 that he would 'change his life around’, and after having served over a decade in prison, his offending continued soon after he was released into the community.
The Applicant was released on 1 October 2013. Approximately four months later, on 31 January 2014, he was convicted in Liverpool Local Court of two counts of common assault. He was sentenced to 18 months imprisonment with a non-parole period of nine months.
The sentencing remarks indicate that the Applicant assaulted his partner at the time on two separate occasions.
The Applicant served nearly 17 months of this sentence.
The Respondent contends that in relation to this conviction for domestic violence, consideration should be given to the seriousness with which the Australian community views any instances of domestic violence.
In the matter of Oluwafemi and Minister for Home Affairs [2018] AATA 690 the Tribunal noted that, 'the Australian community has come to regard domestic violence seriously (at [63]).
The Applicant was released from prison on 14 May 2015. He continued offending later that year, being convicted for three offences relating to driving while not having held a licence, destroying and damaging public property, and for being in custody of a knife in a public place.
The Applicant’s offending continued in 2016 and comprised of the following convictions:
·on 22 June 2016 for one count of assault occasioning actual bodily harm for which he was sentenced to three months imprisonment; and
·on 25 November 2016 for two counts of driving motor vehicle during disqualification period for which he was sentenced to three months imprisonment.
Incidents in prison and in immigration detention
The Applicant has an extensive history of incidents recorded in relation to his periods in prison and immigration detention (see G documents, G18, pages 160-162), including:
In prison

·'fight or other combat', 'intimidation' and 'conceal article use for escape';
·possession of drugs and other prohibited items, failed drug tests and failing to comply with instructions;
·a conviction on 7 July 2000 for assaulting a prison officer.
In immigration detention

·assaulting another detainee by punching him and stomping on the detainee's head;
·acting aggressively towards a medical officer in immigration detention.
The Tribunal accepts the Respondent’s submissions that, even where the Applicant has not been charged with offences in relation to his conduct in immigration detention, these are nevertheless matters that should be taken into account in understanding the nature of the Applicant's conduct, and his potential conduct in the community if the cancellation decision were to be revoked.
The Respondent further contends that the Applicant has frequently committed serious and significant criminal offences and because of the cumulative nature of the Applicant's offending the Australian community should be protected from the Applicant. The Tribunal accepts this submission.
The protection of the Australian community - the risk to the Australian community
The following factors are relevant to this consideration:

·the Applicant's history of offending, and the repeated nature of many of his offences, including both violent offending and driving related offending;
·the Applicant was convicted of driving during disqualification period in November 2016, five months after receiving a warning from the Magistrate that if he continued to drive without a licence he would end up in prison;
·the link between the Applicant's drug use and his offending; and
·that the Applicant has continued to act aggressively in immigration detention.
Significantly, the Applicant has a heroin addiction. This has been recognised as a cause of the Applicant's offending.
The Applicant poses a risk of future offending if permitted to remain in Australia.
It would appear that the Applicant has received little of the treatment that he would require to reduce his risk of re-offending.
The Applicant has benefited from three decisions by the Respondent's Department by which he has avoided removal from Australia in 2003, 2008 and 2014.
The Tribunal concludes that there is a very real risk of the Applicant reoffending, and that if he were to reoffend, the nature and seriousness of the Applicant's past offending shows that the Australian community will be at significant risk of physical and psychological harm.
Best interests of minor children
The Applicant has one minor child, J, who is approaching 16 years old and was born just after the Applicant was incarcerated for 12 years for a series of armed robbery convictions.
In 2002, the Applicant stated that K (the Applicant's former partner and J's mother) and J visited him in jail regularly, which tended to 'be approximately every fortnight’. However, in cross-examination at the hearing, it is clear that the Applicant did not play a significant part in the first twelve years of J's life.
In the Applicant's personal details of 21 May 2018, the Applicant indicated that he maintains a line of communication with J and that his parental role is minor, but stated that “J needs me now more than ever". J appears to be cared for by his mother, who the Respondent contends can be expected to continue to perform a parental role in their life in the future.
As the Applicant has spent a considerable amount of J's life either in prison or in immigration detention, he has not played a significant parental role in J's life. Nonetheless J's best interests weigh in favour of the revocation of the cancellation of the Applicant's visa.
There is evidence which suggests the Applicant has played some parental role with respect to the son of TT (the Applicant's former partner), T (9 years old). The relationship between T's mother and the Applicant has broken down. Therefore, the extent that the Applicant will continue to play a parental role in T's life is limited.
The best interests of the children nonetheless weigh in favour of the Applicant.
[The Applicant has listed a number of nieces and nephews in his personal circumstances form. However, their ages and dates or birth have not been listed, nor has the Applicant outlined the nature of his relationship with them. It is not clear whether the interests of these nieces and nephews are relevant interests for consideration.]
Expectations of the Australian community
This consideration, in the Applicant’s circumstances, weighs against the Applicant.
Having offended after it was brought to his attention on three occasions that he was at risk of his visa being cancelled, the Respondent further contends that the community would now expect that the Applicant would be denied the opportunity to remain in Australia.
The Respondent contends that this primary consideration weighs heavily in favour of not revoking the cancellation of the Applicant's visa.
The Tribunal accepts these submissions, having regard to the Applicant’s offending history.
Other considerations
Strength, nature and duration of ties to Australia
The Applicant arrived in Australia aged 8 years. He is now 44 years of age. He has therefore lived almost his entire life in Australia. His family, likewise, reside in Australia. A non-revocation decision will inevitably result in hardship to the Applicant and other family members remaining in Australia.
The Tribunal also recognises that the Applicant commenced offending in his mid-teens and continued that conduct on a regular basis.
The Applicant has made limited positive contribution to the community through his work history and has spent almost 16 years in custody and the last 19 months in immigration detention.
Extent of impediments if removed to home country

The Applicant will doubtless face a period of adjustment if returned to New Zealand. However, the Tribunal is satisfied the Applicant will adapt to life in New Zealand and be able to maintain contact with his son although from a distance.
In the Applicant's personal circumstances form he indicated that he did not have any diagnosed medical or psychological conditions. The evidence indicates that the Applicant has reported an addiction to heroin and may be in need of mental health assistance.
Any mental health condition or heroin addiction that the Applicant may be suffering will be able to be treated in New Zealand should he choose to seek treatment.
On 6 June 2017 and 19 July 2017, the Applicant requested removal from Australia. On both occasions the Applicant withdrew his requests. The Applicant requested removal on the basis that his partner (at that time), would be leaving with him. However, she was arrested on or around 1 August 2017 and the Applicant withdrew his second request on the basis that she would not be accompanying him to New Zealand.
The Applicant's requests for removal indicate that the Applicant considers there are no real impediments to returning to New Zealand.
There are no other considerations to the Applicant’s review.
CONCLUSION
The Tribunal concludes that the primary considerations of protection of the Australian community and community expectations significantly outweigh all other considerations in favour of the Applicant remaining in Australia.
The Tribunal concludes there is not “another reason” why the decision to cancel the Applicant’s visa should be revoked. The decision of the Delegate should therefore be affirmed.
SM Griffin QC

I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of
Senior Member M Griffin QC

.............................[sgd]...........................................
Associate
Dated: 16 October 2018

Date of hearing: 2 October 2018

Applicant: In person

Solicitors for the Respondent: Mr T Galvin, Minter Ellison

[2018] AATA 3886

16 October 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Date of hearing:	2 October 2018
Applicant:	In person
Solicitors for the Respondent:	Mr T Galvin, Minter Ellison