Kopa and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 3627
•9 November 2023
Kopa and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3627 (9 November 2023)
Division:GENERAL DIVISION
File Number: 2023/5537
Re:Tyrone Kopa
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member Julian-Armitage
Date:9 November 2023
Place:Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made by the delegate of the Respondent dated 28 July 2023 to not revoke the cancellation of the Applicant's visa and substitutes a decision to revoke the mandatory cancellation of the Applicant's visa.
................................[SGD]........................................
Member A Julian-Armitage
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category Temporary visa – whether the Applicant passes the character test – substantial criminal history – whether there is another reason to revoke the cancellation of the Applicant’s visa – consideration of Ministerial Direction No. 99 – decision under review set aside and substitutes a decision revoking the original visa cancellation.
Legislation
Administration Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Secondary Materials
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Member A Julian-Armitage
INTRODUCTION
Mr Tyrone Kopa (‘the Applicant’) is a 31-year-old man, born in New Zealand on 27 June 1992. He arrived with the intention of residing here permanently in Australia in June 2017 and was granted upon arrival was a Class TY Subclass 444 Special Category (Temporary) Visa (‘the Visa).[1]
[1] Exhibit R1, p 1.
On 5 December 2022, while the Applicant was serving a full-time custodial term of imprisonment, the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) notified him of the mandatory cancellation of the Visa pursuant to section 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) because he did not pass the character test as he was serving a full-time custodial term.[2] On 5 December 2022, the Applicant made written representations to the Respondent requesting revocation of the cancellation of the Visa.[3]
[2] Exhibit G1, p 48.
[3] Exhibit G1, p 71.
On 28 July 2023, a delegate of the Respondent decided not to revoke the mandatory cancellation.[4] This was delivered by hand to the Applicant on that same day.[5] On 29 July 2023, the Applicant lodged the instant application in this Tribunal seeking review of the non-revocation decision. I am satisfied that this Tribunal has jurisdiction to review the non-revocation decision pursuant to section 500(1)(ba) of the Act.
[4] Exhibit G1, p 19.
[5] Exhibit G1, p 11.
The hearing of this application proceeded before me on 3 October 2023 with oral evidence received from just the Applicant.
The Tribunal also received written evidence and the totality of that material was consolidated into an agreed Exhibit List,[6] a true and correct copy of which is attached to these Reasons and marked ‘Annexure A’.
[6] Transcript page 2 line 41 and page 3 line 4.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by section 501CA(4) of the Act. Relevantly, this 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.
I am satisfied that the Applicant made the representations required by section 501CA(4)(a) of the Act.
There are, therefore, two issues presently before the Tribunal:
(a)whether the Applicant passes the character test; or
(b)whether there is another reason why the decision to cancel the Applicant’s Visa should be revoked.
Does the Applicant pass the character test?
It is common ground that the Applicant does not pass the character test[7], due to his ‘substantial criminal record’ arising from him being sentenced to a term of imprisonment of 15 months in October 2022.[8] Accordingly, I find that he does not pass the character test and cannot rely on section 501CA(4)(b)(i) of the Act for the mandatory cancellation of his Visa to be revoked.
[7] Transcript page 2 line 30 to page 3 line 4.
[8] Pursuant to ss 501(6) (a) and 501(7)(c) of the Act.
Is there another reason for the revocation of the cancellation of the Applicant’s Visa?
In considering whether there is another reason to exercise the discretion in section 501CA(4) of the Act, the Tribunal is bound by section 499(2A) of the Act to comply with any directions made pursuant to the Act. In the present case, Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’ or ‘Direction 99’) has application.[9]
[9] Direction No 99 commenced on 3 March 2023. It replaces Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, the Direction contains several principles that must inform a decision maker’s application of the considerations relevant to the decision which are contained in paragraph 5.2 of the Direction and are as follows:
1Australia 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.
2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6
Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the
non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 8 of the Direction sets out the following five Primary Considerations that the Tribunal must take into account:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia:
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out the following four Other Considerations which must also be taken into account:
(a)legal consequence of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels me to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
As best as I understood the material, it does not contain any reference to offences committed by the Applicant outside of Australia.
In the case of this Applicant, he has compiled a not-insignificant criminal history in this country with sentencing episodes that run from September 2019 until October 2022. The Applicant’s offending history may be summarised thus:
Court Date Offence Sentence Queensland Magistrates Court October 2022 Serious assault police officer by biting spitting etc. Conviction recorded
Imprisonment: 15 months
Failure to appear in accordance with undertaking Conviction recorded
Fined: $500
Breach of bail (x9) Conviction recorded
Fined: $900
Drinking alcohol on a railway unless otherwise permitted
Fare evasion
Create disturbance or nuisance
Contravene direction or requirement
Obstruct police officer
Conviction recorded
Not further punished
Western Australia Magistrates Court November 2021 Failed to comply with a direction (x3) Fined: $4000 (global) Queensland Magistrates Court January 2020 Assault occasioning bodily harm whilst armed/in company
Serious assault police officer by biting spitting etc. (x2)
Conviction recorded
Imprisonment: 3 months
To be suspended for: 12 months
Queensland Magistrates Court November 2019 Commit public nuisance No conviction recorded
Fined: $300
Queensland Magistrates Court September 2019 Contravene Direction or requirement No conviction recorded
Fined: $150
The Applicant has also compiled a traffic history during his time in Australia which runs from June 2008 until August 2022. In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
I will consider each in turn.
The nature and seriousness of the Applicant’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
(h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Paragraphs 8.1.1 considerations
Sub-paragraph 8.1.1(1)(a):
This area of the Direction stipulates that offences committed in the nature of sub-paragraphs (i) to (iii) are viewed as “very serious” by the Australian government and the community. The Applicant’s criminal record shows that in January 2020 he was convicted for an “assault occasioning bodily harm whilst armed/in company” which took place on 9 November 2019. He was sentence for this offence, together with two other offences which I will deal with below, to three months incarceration suspended for 12 months.
Whilst any form of violence should not be condoned, the nature of this offence appears to have taken place during the course of the Applicant being asked to leave by a security guard at licenced premises due to the Applicant’s level of his intoxication. The weapon was a glass held in his hand that he swung causing the victim to raise his arm in defence which broke the glass and caused a minor laceration of the outer skin.[10] In isolation this offence is serious, but I do not view it as very serious. My view is clearly supported by the relatively light sentence the Applicant received for this and a further two offences.
[10] Queensland Police Service Court Brief S3 page 17.
Sub-paragraph 8.1.1(1)(b):
This sector of the Direction deals with the types of offences that may be considered “serious” by the Australian Government and the community. The Applicant’s offending has occurred in the realm of subparagraph (ii) as he has been convicted of two counts of “serious assault of police officer by bitting spitting etc”. These offences arose out of the licenced premises incident for which he was sentenced on these two counts and the assault mentioned in sub-paragraph 8.1.1(1)(a). None of the Applicant’s offending occurred in the realm of sub-paragraph (i) nor has he been responsible for conduct grounding any finding that he does not pass an aspect of the character test that may be dependent on this decision-maker’s opinion.[11]
[11] Paragraph 8.1.1(1)(b)(iii) of the Direction.
In relation to sub-paragraph 8.1.1(1)(b)(iv), there is nothing in the material to indicate that the Applicant has engaged in conduct whilst he has been detained. Therefore, this sub-paragraph is not relevant to any assessment that may go to the seriousness of the Applicant’s conduct.
Sub-paragraph 8.1.1(1)(c):
In applying this sub-paragraph, I am precluded from taking into account sentences imposed on this Applicant for:
(a) any violent offending he may have committed against women or children;[12]
[12] Paragraph 8.1.1(1)(a)(ii) of the Direction.
(b) acts of family violence;[13] and
[13] Paragraph 8.1.1(1)(a)(iii) of the Direction.
(c)any sentence he received relating to conduct whereby he caused a person to enter into or become a party to a forced marriage.[14]
[14] Paragraph 8.1.1(1)(b)(i) of the Direction.
None of the Applicant’s offending involve offences of the nature contained in sub-paragraphs (a), (b) or (c) which leaves the 22 offences as follows:
·
Serious Assault on Police Officer
conviction recorded and 15 months custodial sentence.
·
Assault occasioning Bodily Harm and Serious Assault Police Officer (2 counts)
conviction recorded and 3 months custodial sentence suspended for 12 months.
·
Failure to Appear in accordance with undertaking
fined $500, conviction recorded.
·
Breach of Bail (9 counts)
fined $900 conviction recorded.
·
Drinking Alcohol on railway, fare evasion, create disturbance or nuisance, contravene direction or requirement and obstruct Police.
no further punishment, conviction recorded.
·
Failure to comply with a direction (3 counts)
fined $900 conviction recorded.
·
Commit a public nuisance
fined $300, no conviction recorded.
·
Contravention of a direction
fined $150 no conviction recorded.
With the exception of the three violent offences, I am not of the view that the nature of the above sentences for the non-precluded offending represent significant sentences that were imposed for the commission of commensurate serious offending. In the main, these are offences that were fuelled by the consumption of alcohol and present in the nature of petulance and a blatant refusal to follow lawful authority and are unremarkable in nature. These sentences are reflective of a frequency in the Applicant’s offending but do not go to the nature and seriousness of his unlawful conduct in Australia.
In relation to the two counts of assault Police in the course of their duty and the assault occasioning bodily harm which occurred in late 2019, again fuelled by the consumption of alcohol, is certainly offending which I find have elements of seriousness. However, the circumstances giving rise to these offences and the relative leniency in sentencing leads me to find that the nature and seriousness is on the lower end of the scale.
Sub-paragraph 8.1.1(1)(d):
There are two issues I need to consider in relation to this sub-paragraph. Whether the Applicant’s offending had been frequent is the first assessment I am required to make and find that 22 offences in a period of approximately three years leads me to be satisfied that the Applicant’s offending has been frequent.
The second issue is whether the Applicant’s offending demonstrates a pattern of increased seriousness. Had it not been for the most recent offence which triggered the operation of the mandatory cancellation of his visa, an argument could be maintained that the seriousness had not increased. However, I cannot ignore the serious assault Police Officer conviction which resulted in the imposition of a 15-month period of incarceration.
Hence, the frequency and increased seriousness of the Applicant’s offending leads me to find that his offending has been serious in nature.
Sub-paragraph 8.1.1(1)(e):
This is an area of the direction deals with the cumulative effects of the Applicant’s offending. As mentioned previously, the Applicant’s violent offending has, on each occasion, been underpinned by his substance abuse (alcohol). He acknowledged this factor during cross examination and attested to the problems that his excessive drinking has caused him. It is evident that there has been a cumulative effect to his violent offending in that this attitude towards authority (security guard incident) and police officers undertaking their duties (both in late 2019 and 2022) and the contravene direction and obstruct Police offences are obvious reflections of such effect.
To a lesser degree but with more frequency are the remainder of the Applicant’s offending which in isolation each one could be viewed as minor. However, the sheer number of such offences requiring the consumption of numerous judicial resources is conduct that justifies a finding that the nature of the unlawful conduct in Australia has been serious.
Sub-paragraph 8.1.1(1)(f):
As previously mentioned, the Applicant arrived in Australia in June 2017 intending to remain on a permanent basis. In relation to this sub-paragraph, there is nothing to suggest that the Applicant has provided false or misleading information to the Department. Hence this sub-paragraph does not weigh either in favour or against revocation of the mandatory cancellation of his visa.
Sub-paragraph 8.1.1(1)(g):
As I can best view the evidence, there is no reference to any written formal warning in respect to the consequences of the Applicant committing further offences and the effect that may have on his visa status to remain in Australia. Therefore, this sub-paragraph is not relevant.
Sub-paragraph 8.1.1(1)(h):
The Applicant’s New Zealand criminal history do contain offences which, although would be considered minor offences in this country, nevertheless are ones that would be considered offences in this country. In the main, they are offences relating to the Applicant’s graffiti activities. In cross-examination, he describes this offending as exercising poor decision-making and also admitted that, again the underlying issue was the consumption of alcohol. These offences contribute a finding that slightly militates in favour of a finding about the nature and seriousness of the Applicant’s conduct.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have applied each of the relevant sub-paragraphs in paragraph 8.1.1(1) of the Direction to the evidence I have seen and heard. This has led me to the conclusion that the applicable sub-paragraphs take me to the conclusion that the Applicant’s unlawful conduct, viewed in total, can safely be found to be “serious” and I so find.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Sub-paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.
Sub-paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(i)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(j)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(k)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
As can be gleaned by the Applicant’s convictions, which are some 22 or so in total in this country, four of those convictions are in the realm of violent offending and as I mentioned previously, fuelled by the consumption of alcohol. The remainder of his criminal history are as a result of conduct which can be regarded as petulance and disregard for authority and the lawful requirements that this country requires its community to live by and adhere to.
It is without question that should the Applicant commit further violent offences, a victim of such offence would be adversely impacted. Whilst his past victims did not suffer any level of serious harm physically, I cannot dispel the anguish that must have been caused to the Police officers as a result of the spitting (of blood and other bodily fluids) until they were able to receive test results clearing them of any transmittable disease which could have been passed on as a result.
As for the non-violent offences, were he to re-offend, there would undoubtedly be financial consequences to the community and the taxpayers of this country due to the community’s policing, enforcement and judicial systems and resources.
These resultant issues, were the Applicant to re-offend, leads me to the finding that offending of this nature, particularly the violent offending, is such that the risk of repetition of such conduct would be unacceptable to the Australian community.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Throughout the hearing of this matter, the Applicant impressed me as a plausible and credible witness both in his written material and orally during cross-examination. He took ownership of his past actions and demonstrated a great deal of insight with respect to his past criminality and, as he himself characterised “poor judgement” and the use of alcohol as a means of dealing with or blocking out past trauma. He advised that he grew up in a domestically violent household perpetrated, on a daily basis, by his step-father from the time he was 9 until he was 15 years of age. The brutal violence was mainly directed at his mother, however, when he would endeavour to protect his mother, he too would be brutally punched and hit. In addition to the physical violence, the Applicant says to have endured a great deal of emotional violence which grew in intensity dependent on the step-father’s level of sobriety (alcohol and drugs). The Applicant acknowledged that there may well have also been contributing factors to his behaviour due to not having known his biological father and grandfather who were also alcoholics.
The Applicant has voiced his remorse and shame in relation to his past behaviour and shown insight into the fact that his victims (violent crimes) have been ”other human beings” and acknowledged the consequences of his actions such as ”could have transmitted a disease”.
When questioned about the likelihood of his re-offending, the Applicant stated:
“I’ve got to use my life as an example of what not to do. Like all my mistakes, they are reminders of what path not to tread down. And I don’t want to repeat this. I don’t even want to go through something like this ever again. And that’s not just being able to be free out of here, but really got to take control of my life, and I can’t blame my circumstances, I can’t blame if I have financial hardship. And I can’t just resort to, you know, going to my old friends. I have to change my whole-whole life. So I think the thing that’s going to stop me from going down that path is myself”.[15]
[15] Transcript page 39 lines 44 to page 40 line 4.
When asked what mechanism he has put in place to prevent fall back into his old way, he responded “Well I’m just going to not be around my friends anymore. I’m going to make new friends and I’m going to be around people who are more productive, more creative, you know, more grounded in who they are. I also want to do some counselling, continuous counselling”.[16]
[16] Transcript page 40 lines 11 to 15.
The Applicant’s insight has led him to undertake courses to address the trigger issues that have led him to offending. I note he served five months of incarceration which would have been difficult to be able to enrol in courses to address his issue given the lack of availability and the number of people wanting to avail themselves of a spot. Once the Applicant was relocated to the detention centre, he was able to undertake an anger management course and engaging with counsellors[17] in order to address the root source of his offending.
[17] Lives Lived Well Exhibit A6.
As mentioned previously, the Applicant harbours a great deal of embarrassment and remorse about his past offending and when questioned about the risk of re-offending, his non-hesitant response was “no way! I’m a better person than I was a year ago…I have done my own spiritual insight-I need to keep working on myself -everything we have spoken about is embarrassing”.
In response to the Respondent’s statement that there must be some risk (of re-offending), the Applicant stated that “the professional help is useful but I also need to reflect and change mechanisms -get new friends-people who are productive”. In furtherance of this, the Applicant has sourced a place to live in Wynnum and has been offered a full-time job by a previous employer as a delivery driver.[18] I also note that one of his character references, Mr Tamas Neufeld, attests to the Applicant’s artistic talents and his support for further development of his art and music. It is worth noting that a number of damage to property convictions are graffiti done by the Applicant which I do not by any means condone, but merely relate that the evidence adduced this fact.
[18] Exhibit A1.
Assessment of recidivist risk
As previously mentioned, the Respondent contends that there is an unacceptable risk that the Applicant will re-offend, and that any attempts at rehabilitation have been motivated by his application before this Tribunal and that his rehabilitation and future plans are “largely aspirational”.[19] I do not share this view as I note that the Applicant has been able to address his alcohol issues well before his last sentencing episode[20] and has persuaded me of his earnest desire and efforts to turn his life around. The Applicant is young and has much to offer the community going forward. I find that he is a very low risk of re-offending.
[19] Respondent’s Statement of Facts Issues and Contentions paragraph 49; Respondent’s Closing Submissions paragraph 23.
[20] Exhibit G16 p 68.
Conclusion of Primary Consideration 1: Protection of the Australian Community
My analysis of the material and evidence and the unremarkable nature of the offending before me leads to find that this Primary Consideration 1 confers a moderate but not determinative weight against the revocation of the mandatory cancellation of the Applicant’s visa.
Conclusion of Primary Consideration 2: Family Violence
I am satisfied, and the parties agree, that this Primary Consideration 2 is not applicable. I allocate neutral weight to this consideration.
Conclusion of Primary Consideration 3: The strength, nature and duration of ties to Australia
The Direction requires decision-makers to have regard to the strength, nature and duration of an Applicant’s links to the Australian community. There are four requisite considerations to be addressed in this paragraph 8.3. I will address each in turn.
The Applicant states that he has 14 cousins, 20 nieces and nephews and three aunties and uncles living in Australia. His mother is in New Zealand and presumably it is his biological father with whom he has not had contact since he was a child. He is closest to his cousin Christopher who lives in Brisbane and also enjoys a close relationship with two cousins in Melbourne, one in Perth and another in Sydney. The relationships with his out of Brisbane cousins have been maintained by phone.
The Applicant also claims to have a strong relationship with a friend he has known since 2019, Mr Tamas Naufeld and also Mr James Flack with who he has been close to for some 13 years and claims to have a fraternal-like bond. In addition to these friends, the Applicant is also very close to his past employer, Mr Justin Fletcher for whom he worked prior to being incarcerated. Mr Fletcher has offered to re-employ the Applicant should he be able to remain in Australia. There was also a mention of a friend called Pearce that he used to share accommodation with in the past and that he will be again doing so in Wynnum if he is able to return to the community. It is noteworthy that the Applicant made a point of telling this Tribunal that these people, with whom he enjoys strong ties, are not people he has engaged in drinking sessions with in the past.
The Applicant does not have a current partner nor any children.
Paragraph 8.3(1): Consideration of the impact of this decision on the Applicant’s immediate family members
The Applicant’s only immediate family is his mother who resides in New Zealand. There is nothing that assists me with what impact the decision would have on her one way or another. Furthermore, there is a paucity of information as to what level of support the Applicant’s mother could have provided given that she required his assistance throughout a very long period when she lived with a domestically violent partner. Further, there is nothing before me about any other members of the Applicant’s family and note that he has not had any contact with his biological father since early childhood. The Applicant has stated that his father and grandfather are alcoholics. Hence, I can only assume that there would be no impact one way or another to a decision. Therefore, I afford this sub-paragraph neutral weight.
Paragraph 8.3(2): Consideration of the Applicant’s ties to Australia having regard to a child/ren who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely
As mentioned above, the Applicant does not have any children. Therefore, this sub-paragraph is of neutral weight in favour of the Applicant.
Paragraph 8.3(3) Strength, nature, and duration of ties with any family or social links generally
The Applicant enjoys a strong relationship with five of his cousins and maintains those relationships with regular contact personally, when possible, with his Brisbane-based cousin and by phone with the other four cousins. The Applicant claims to be close to these family members. In addition, he also has close ties to his friends (mentioned above) to the point of sharing accommodation with one of them and being provided employment by another. In addition to these friends, the Applicant also has a strong link with Ms Tanya Miller, a person he considers to be a “mother figure” to him. This lady came to the hearing of the Applicant’s matter as a support person and provides him with spiritual guidance.
I am satisfied, and find, that the extent of the Applicant’s family and social links would be adversely impacted should the Applicant not be able to remain in Australia and, therefore, allocate a moderate amount of weight to the totality of the strength, nature and duration of the Applicant’s overall ties to Australia.
Paragraph 8.3(4): Consideration of the nature of the Applicant’s ties to the Australian community having regard to the length of time he has resided here
This component of Primary Consideration 3 requires us to look at the length of time the Applicant has resided in the Australian community and to take account of the following three elements:
(a)whether the Applicant has been ordinarily resident here during his formative years.
The Applicant arrived in this country with the intention to remain in June 2017 aged 24. He is presently 30 years old. It is difficult to find that he has been a resident of Australia during his formative years. Therefore, I am unable to allocate any weight to the Applicant’s ties to Australia on the basis that he did not spend his formative years here:
(b)whether the Applicant has positively contributed to the Australian community during his time here.
The Applicant’s contribution throughout the time he has resided in Australia has been, in the main, through his work as a delivery driver and other paid employment he has maintained which have required him to pay taxes and, thus, contribute to the community. Further, and based on the statement of his friend, Tamas Neufeld he has a bright future as an artist and has support to develop that talent. There is evidence that he has the ability to resume his work with his past employer which is an indication of his positive contribution. I am satisfied that the Applicant has a good work ethic and has applied himself in the past resulting in a positive contribution to the Australian community. Hence this weighs favourably in respect to this sub-paragraph of the Direction.
(c)can the weight be allocable to the strength of the Applicant’s ties to Australia based on the length of time he has spent in the Australian community be lessened because (1) he did not spend his formative years here and (2) he began offending soon after arriving here?
It is without question that he has not spent his formative years in Australia as found above. His offending prior to 2020 was unremarkable (contravention of a direction and Public Nuisance). Given that the 2020 offences were almost three years after his arrival, I find that I can allocate a moderate amount of weight to the strength, nature and duration of the Applicant’s ties to Australia.
I have applied the four components of Primary Consideration 3 to this Applicant’s matter. After analysing the evidence to each component of this part of the Direction, the totality of the evidence leads me to find that this Primary Consideration 3 is of heavy weight in favour of the revocation of the mandatory cancellation of the Applicant’s visa.
Conclusion of Primary Consideration 4: The best interests of minor children in Australia
As I am to understand the evidence and material before me, there are no minor children in Australia, or elsewhere, for that matter that would be relevant to this Primary Consideration 4. Hence, I allocate neutral weight to this part of the Direction.
Conclusion of Primary Consideration 5: Expectations Of The Australian Community
The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[21] The Direction further explains:
‘This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.5(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.’[22]
[21] Paragraph 8.5(3) of the Direction.
[22] Paragraph 8.5(4) of the Direction. Paragraph 8.5(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.
With reference to the propositions in paragraph 8.5(1) of the Direction, this sub-paragraph is expressed thus:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
AS a starting point, this Applicant has breached the Australian community’s expectations by his record of criminal offending in this country, which is evidenced by repeated breaches of Australian laws. Therefore, the Australian community, ‘as a norm’ expects the Australian Government not to allow him to remain in Australia.
The Direction also states that visa cancellation or refusal, or non-revocation of a mandatory cancellation of a visa, 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 be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:[23]
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
[23] Paragraph 8.5(2) of the Direction.
As mentioned above, there are offences that the Applicant has committed that engage the operation of sub-paragraph (d) involving “contravention of a direction or requirement and the serious assault”. These convictions involved government officials in their performance of their duties. Therefore, the Australian community expects that the commission of these offences would mean that the Australian government should refuse to revoke the mandatory cancellation of the Applicant’s visa.
The remaining question is whether there are any factors which modify the Australian community’s expectations. This question is informed by the principles in paragraphs 5.2(4), (5) and (6) of the Direction. In summary these are:
(a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa;
(b)the Australian community has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[24]
(c)Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age;[25]
(d)the community’s level of tolerance will rise based on the length of time a non-citizen has spent in this country and, in particular, whether their formative years were spent here;
(e)the nature of a non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify a visa outcome that is not adverse to the non-citizen;[26] and
(f)if a non-citizen’s unlawful conduct is inherently of the type captured by any of the categories stipulated in paragraph 8.5(2)(a)-(f)(inclusive) of the Direction, then even strong countervailing considerations may not assist a non-citizen even where the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
[24] Paragraph 5.2(4) of the Direction.
[25] Ibid.
[26] Paragraph 5.2(5) of the Direction.
In considering the provisions of sub-paragraph (a) above, the Act is silent as to the meaning of “limited stay visa”. In this Applicant’s case the visa he held prior to the cancellation was a Class TY 444 Special; Category visa which permits New Zealand citizens to remain in Australia on an indefinite basis.[27] Given that the Applicant was permitted to remain here without limit, it follows that his previously held visa could not be a limited stay visa.[28] Hence, sub-paragraph (a) is not relevant in the present case.
[27] Regulation 444.511 of the Migration Regulations 1994 (Cth).
[28] Walker v Minister of Home Affairs [2020] FCA 909 at [29].
With respect to sub-paragraph (b) above, the Applicant has resided permanently in Australia since June 2017. He has worked in Australia and made contributions through his remunerated employment and taxation. He has also, to some degree, contributed culturally with his art and music as attested to by Tamas Neufeld.[29] Regardless of the level of participation in and contribution to the Australian community he has made during his life here in Australia, it cannot safely be considered to have been ‘short’. Therefore, the Australian community’s tolerance is not lowered by this part of the principles in 5.2(4) of the Direction.
[29] Exhibit A5.
In relation to sub-paragraph (c) above, I am led to the view that, just as I have not found a lowering of tolerance in relation to (b), the length of time this Applicant has lived in Australia must warrant that the Australian community would have a higher tolerance than usual of the crimes or other serious conduct of this Applicant.
With respect to sub-paragraph (d) above, I am of the view that the length of time the Applicant has spent here accommodates a raising of the level of tolerance the community would have for the Applicant’s offending.
In relation to (e) above, I am not of the view that the balancing act between the harm that would be caused by the Applicant re-offending in the area of assaults of the same nature and intensity as he has in the past would countervail considerations which may go in his favour, is applicable to the community’s expectations here. This is mainly to my earlier finding that the nature of his offending as been, in the main, unremarkable. This finding should not be taken as being in contradiction to the Direction’s guidance on the level of seriousness relating to certain offences. It is merely one that I have been led to by the evidence and, to some extent, the lack of evidence.
In relation to sub-paragraph (f) above, I find that the Applicant’s offending is caught by (a) by the mere fact that there has been criminal or other serious conduct. However, I am of the view that provision in (b), (c) and (d) hold strong countervailing considerations in his favour.
In the circumstance and having regard to the contents of sub-paragraphs (a) to (f) above, I am firmly of the view that the Australian community’s expectations are modified such that the community has a higher that usual tolerance of the Applicant’s criminal conduct. It, therefore, follows that that the Australian government can and should set aside that mandatory cancellation of the Applicant’s visa.
Primary Consideration 5 confers a heavy level of weight in favour of this Tribunal to exercise the power to revoke the mandatory cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
Other Consideration (a): Legal consequence of the decision
This Other Consideration has not been addressed by either party. I therefore allocate neutral weight to it.
Other Consideration (b): Extent of impediments if removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is a relatively young man who suffers from self-diagnosed alcoholism which, in the past, has led to his offending. There are no clinical reports that point to any other health conditions.
It is well-established that New Zealand shares substantially similar language and cultural similarities to Australia and that there would be “no significant linguistic or cultural barriers facing the Applicant should be return to New Zealand”.[30]
[30] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301, [101].
The medical and economic support available to New Zealand residents and citizens is also similar to that of Australia. The Applicant’s evidence was that he does not know about the current unemployment situation in New Zealand.[31] It would be safe to assume that he could avail himself of unemployment benefits until he was able to secure a job in New Zealand to the same extent as any other citizen of that country. In terms of social support, the Applicant told the hearing that his mother lives in New Zealand and that he has not had any contact with his father since he was a very young child.
[31] Transcript page 45 L16
It is obvious that if the Applicant is to continue with treatment for his substance abuse (alcohol) and the counselling he is currently undertaking that he will require a support network similar to the one he enjoy here through his ties and, in particular, Ms Tanya Miller who the Applicant relies on for support and views as “like a mother to me”.[32] There was no evidence led as to the level of support he would be able to call on in New Zealand. It would have been helpful to hear from the Applicant’s mother as to whether she could provide that support. It is clear that the only social support the Applicant has had is to be found here in Australia and that all other family members are distant relatives with little to no contact.
[32] Transcript page 4 line 14
Findings on Impediments
The lack of social support in New Zealand has led me to the view that this Other Consideration (b) confers a heavy weight in favour of this Tribunal exercising the power to revoke the mandatory cancellation of the Applicant’s visa.
Other Consideration (c): Impact on victims
Neither the Applicant nor the Respondent has raised the issue of impact on victims relevant to this Other Consideration (c). Hence, it attracts a neutral weight.
Other Consideration (d): Impact Australian business interests
Again, neither party has raised this as a live issue of any relevance. Hence, it attracts a neutral weight.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)Legal consequences of the decision: is of neutral weight;
(b)extent of impediments if removed: is of heavy weight in favour of revocation;
(c)impact on victims: is of neutral weight; and
(d)Impact on Australian business interests: is of neutral weight.
CONCLUSION
Pursuant to section 501CA(4)(b) of the Act, there are two alternate conditions for exercising the power to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted above, the Applicant does not pass the character test.
In considering whether I are satisfied if there is another reason to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction and I find as follows:
·Primary Consideration 1: carries a moderate but not determinative level of weight in favour of affirming the decision under review.
·Primary Consideration 2: neutral as not relevant.
·Primary Consideration 3: carries a heavy weight in favour of setting aside the decision under review.
·Primary Consideration 4: neutral as not relevant.
·Primary Consideration 5: carries a heavy level of weight in favour of setting aside the decision under review.
I have found that the combined weights I have allocated to Primary Considerations 3 and 5 respectively, are sufficient to outweigh the weights I have allocated to Primary Consideration 1.
A holistic view of the evidence relevant to the Primary and Other Considerations in the Direction therefore favours the setting aside of the Respondent’s decision under review made on 28 July 2023.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made by the delegate of the Respondent dated 28 July 2023 to not revoke the cancellation of the Applicant's visa and substitutes a decision to revoke the mandatory cancellation of the Applicant's visa.
…………….………[SGD]………………………
Associate
9 November 2023
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Natural Justice
-
Jurisdiction
-
Statutory Construction
-
Remedies
0