Kura and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2019] AATA 5428
•17 December 2019
Kura and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2019] AATA 5428 (17 December 2019)
Division:GENERAL DIVISION
File Number: 2019/6264
Re:Poona Sheldon Jordan Kura
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member R. Pintos-Lopez
Date:17 December 2019
Place:Melbourne
The Tribunal affirms the decision under review.
....[sgd]....................................................................
Senior Member R. Pintos-Lopez
Catchwords
MIGRATION – mandatory cancellation of visa under s 501(3A) of Migration Act – Class TY Special Category (Subclass 444) Temporary visa – failure to pass the character test – whether there is another reason why the cancellation decision should be revoked – Ministerial Direction No. 79 applied – primary considerations – protection of the Australian community from criminal or other serious conduct – expectations of the Australian community – time in Australia before offending commenced – other considerations – reviewable decision affirmed – other considerations – strength, nature and duration of ties to Australia – impact on family members – extent of impediments if removed – reviewable decision affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83
Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hong v Minister for Immigration and Multicultural Affairs [1999] FCA 1567
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354
Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238Secondary Materials
Ministerial Direction No. 79
REASONS FOR DECISION
Senior Member R. Pintos-Lopez
17 December 2019
The Applicant seeks review of a decision made by a delegate of the Respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), pursuant to s 501CA(3A) of the Migration Act 1958 (Cth) (the Act), dated 23 September 2019, not to revoke the mandatory cancellation of his Class TY Special Category (subclass 444) visa (the visa) under s 501(3A).[1] The decision not to revoke the cancellation of his visa, was made because a delegate of the Minister was not satisfied that:
(a)the Applicant passed the character test as defined by s 501 of the Act as he has a substantial criminal record (as defined in s 501(7)); and
(b)there was no other reason why the original decision should be revoked.
[1] The Applicant’s visa was cancelled in the original decision because it was found that he did not pass the character test, provided in s 501(6), by reason that he had a substantial criminal record (as defined by s 501(7)), and was then serving a sentence of imprisonment as provided by s 501(3A)(b) of the Act.
For the reasons that follow, the decision is affirmed.
I. BACKGROUND
The Applicant is a 29-year-old New Zealand man.
On 17 August 2000, the Applicant migrated to Australia with his family when he was 9 years old.
In 2011, 2012 and 2016, the Applicant was convicted of numerous offences, which are detailed below in these reasons.
On 5 April 2017, the Applicant was convicted of three counts of robbery, violence, drug and driving offences committed between 16 October 2016 and 16 December 2016. The Applicant was sentenced to two aggregate 18-month prison sentences, and a third concurrent 18-month prison sentence. The Applicant was also disqualified from driving for five years and sentenced to an additional one-month imprisonment for breaching a Community Correction Order. The total effective sentence was three years imprisonment with a non-parole period of two years.
On 21 December 2017, the Applicant was notified of his visa cancellation under s 501(3A) of the Act.
On 12 February 2018, a coordinator at Ravenhall Correctional Centre attached a statement from the Applicant to the Minister in relation to his visa cancellation (the February 2018 statement). In this statement, the Applicant requested revocation of his mandatory visa cancellation.
On 24 September 2019, the Applicant was notified of the decision not to revoke the visa cancellation under s 501(3A) of the Act, which was made on 23 September 2019.
On 2 October 2019, the Applicant applied to the Tribunal for review of the decision.
II. RELEVANT LAW
The Act provides for the cancellation of visas by operation of the character test in s 501 and for revocation of a cancellation under s 501CA.
Section 501(3A) of the Act provides:
The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) and (7) of the Act define what is meant by a “substantial criminal record” and provide relevantly for present purposes:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
…
Concurrent sentences
(7A)For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.
Section 501CA of the Act provides for revocation of the original cancellation decision under s 501(3A):
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
…
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)a written notice that sets out the original decision; and
(ii)particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)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.
(5)If the Minister revokes the original decision, the original decision is taken not to have been made.
(Emphasis added.)
Section 499 of the Act grants power to the Minister to give directions:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
…
(2A)A person or body must comply with a direction under subsection (1).
Ministerial Direction No. 79 made under s 499 of the Act, currently applies to decisions made pursuant to s 501 (the Direction).[2] The Direction sets out the objectives of the Act along with general principles and guidance in relation to the manner of exercising the power contained in s 501CA.[3]
[2] The Direction was made on 20 December 2018 and commenced on 28 February 2019.
[3] Direction 79 paragraph 5.
The Direction then contains three parts, from Part A to C, which apply to the exercise of certain powers. Part C applies to the revocation of decisions made under s 501CA of the Act and identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa.[4]
[4] Ibid.
The objective of the Act is stated to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.[5] The purpose of the Direction is to:
guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.[6]
[5] Ibid paragraph 6.1(1).
[6] Ibid paragraph 6.1(4).
Under the heading “General Guidance”, the Direction, in part, provides:
The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.[7]
[7] Ibid paragraph 6.1(1).
The principles, at paragraph 6.3, state at 6.3(1) and (2):
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.
The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
A number of further principles contained in paragraph 6.3 are set out below where they arise for application under the relevant considerations.
Informed by the principles in paragraph 6.3, a decision-maker in the present circumstance must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen's visa will be revoked.
In terms of taking the relevant considerations into account, the Direction provides generally:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. …
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.[8]
[8] Ibid paragraph 8.
Part C contains three primary considerations, that must be taken into account in every decision considering revocation of a cancellation, being:
(a)protection of the Australian community from criminal or other serious conduct;
(b)the best interests of minor children in Australia; and
(c)expectations of the Australian community.[9]
[9] Ibid paragraph 13.
The Direction prescribes certain other considerations that must be considered, if and where they apply. Those other considerations, however, do not limit the considerations that may be considered where they are determined to be relevant. These other considerations, at paragraph 14, include:
(a)international non-refoulement obligations;
(b)strength, nature and duration of ties;
(c)impact on Australian business interests;
(d)impact on victims; and
(e)extent of impediments if removed.
In relation to the balancing of the various considerations under the Direction, the authorities provide that:
(a)the Tribunal is obliged to consider the Direction and assess the degree of the considerations and, having done so, it must “put its conclusion on the issue on the scales in the manner provided for by the Direction”: Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238, at [23], per Whitlam and Gyles JJ.
(b)When applying the discretion, the Tribunal must genuinely weigh factors leading to opposite conclusions and not artificially limit any of the factors: Hong v Minister for Immigration and Multicultural Affairs [1999] FCA 1567, at [20].
These reasons proceed, in accordance with s 501CA(4)(b) of the Act, to consider:
·first, whether the Applicant passes the character test as defined by s 501 of the Act and specifically, whether the Applicant fails the character test contained therein because he has a substantial criminal record; and
·second, whether there is another reason why the original decision to cancel the Applicant’s visa should be revoked.
As noted above, the Direction provides for the manner of exercise of section 501CA and, accordingly, sets out a framework for consideration by way of primary considerations and other considerations. That framework of considerations is applied in the reasons that follow.
III. WHETHER THE APPLICANT PASSES THE CHARACTER TEST
The Applicant will have a substantial criminal record if, among other things, he has been sentenced to a term of imprisonment of 12 months or more.[10]
[10] Section 501(7)(c) of the Act.
On 5 April 2017, the Applicant was sentenced to a term of imprisonment of three years. Accordingly, the Applicant has a substantial criminal record as he has been sentenced to a term of imprisonment of 12 months or more.[11]
[11] For the purposes of making that determination under s 501(7) of the Act, it is the term of imprisonment to which the Applicant was sentenced, not the term actually served, that is relevant: Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409, 415–18, per Bowen CJ and Deane J.
The Applicant’s sentence was comprised of:
(a)two aggregate sentences of imprisonment of 18 months;
(b)a third concurrent sentence of imprisonment of 18 months; and
(c)one-month imprisonment for breaching a Community Correction Order.
I am satisfied that the Applicant does not pass the character test as he has a substantial criminal record, as prescribed under s 501(7)(c) of the Act, as I find that he has been sentenced to a term of imprisonment of 12 months or more.
IV. WHETHER THERE IS ANOTHER REASON WHY THE ORIGINAL DECISION TO CANCEL THE APPLICANT’S VISA SHOULD BE REVOKED
The considerations contained in Part C of the Direction are to be taken into account when determining whether there is another reason why the decision should be revoked. The considerations must be fairly assessed on the evidence before the Tribunal, in order to then weigh those considerations, and by putting the conclusion “on the scales in the manner provided for by the Direction”.[12]
[12] Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238, [23], per Whitlam and Gyles JJ. See also Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84, 91, per Davies J and Hong v Minister for Immigration and Multicultural Affairs [1999] FCA 1567, [20].
A. Primary considerations
The Direction contains three primary considerations that must be taken into account, being the:
(a)protection of the Australian community from criminal or other serious conduct;
(b)the best interests of minor children in Australia; and
(c)expectations of the Australian community.
1) Protection of the Australian community
The Direction provides that decision-makers should have regard to the principle that the government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.[13]
[13] Ibid paragraph 13.1(1).
In relation to this primary consideration, decision-makers should have regard to the:
(a)nature and seriousness of the non-citizen’s conduct to date;[14] and
(b)risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.[15]
[14] Ibid paragraph 13(2)(a).
[15] Ibid paragraph 13(2)(b).
Accordingly, the first primary consideration, the protection of the Australian community is to be assessed in two parts. Each of these are considered and applied below.
The nature and seriousness of the conduct to date
In relation to the nature and the seriousness of the conduct to date, paragraph 13.1.1 of the Direction provides that decision-makers must have regard to certain factors listed:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as miners the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)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 noncitizen's favour);
(Emphasis added.)
The principles set out in paragraph 6.3(3) provide relevantly:
A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
In assessing, particular offences, the Tribunal may not impugn a sentence or put in issue the propriety of a conviction or the fairness of the trial.[16] The Tribunal may, however, examine the circumstances surrounding the commission of the relevant offence for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the Applicant’s criminal conduct: Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 at 358 (‘Daniele’).
[16] Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234,240.
In Daniele, Fisher and Lockhart JJ, at 358, stated:
The conviction is the genesis of the Minister’s power to deport. There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the Applicant’s criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial. Whether these circumstances and matters are susceptible of examination and the extent of that inquiry will vary from case to case. The matters which the Tribunal is called upon to determine are wider than and different from the questions which a trial judge and jury must determine.[17]
(Emphasis added.)
[17] Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354, 358 (‘Daniele’). CfMinister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234, at [47] stating his “Honour did not say, nor do we take him to have meant, that the Tribunal should feel free to disregard the findings of historical fact upon which the sentence was based, in particular findings as to the circumstances of the commission of the offence.”
Their Honours stated further at 359–360:
It is our opinion that the Tribunal is entitled to consider all evidence. It will attach appropriate weight thereto in its task of evaluating the conduct of the Applicant; but not for the purpose of assessing the propriety of the conviction.[18]
[18] Daniele (1981) 61 LFR 354, 359–60.
In Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 at 244–245, the Court stated:
at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence.
…
While it stands, the conviction and sentence must be conclusive, so far at least as concerns a tribunal reviewing a decision that takes the conviction and sentence as its starting point.
Recently, in HZCP v Minister for Immigration and Border Protection [2018] FCA 1803, Bromberg J stated:
Relying on many of the authorities which have been discussed above, including Daniele, Gungor, SRT and Ali, the Court of Appeal of the Supreme Court of Victoria (Beach, McLeish and Niall JJA) in Secretary to the Department of Justice and Regulation v LLF[2018] VSCA 155, expressed the applicable legal principles as follows (at [42]) (citations omitted):
The authorities distinguish between cases where a previous conviction is the basis for a decision-maker or reviewing tribunal’s jurisdiction and those where it is not. In the former case, the essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for a purpose other than impugning the conviction itself. In the latter case, the essential facts underlying the conviction are not immune from challenge and the conviction is conclusive only of the fact of the conviction itself, but there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.
…
I would respectfully adopt the distillation of the case law described by Beach, McLeish and Niall JJA in LLF. On that basis the applicable principles are these:
(1)Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.
(2)Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.
…
The Tribunal was entitled to treat the Applicant’s evidence as false because that evidence was inconsistent with facts that the Tribunal was required to treat as true. That exercise involved no irrationality or illogicality. Contrary to the Applicant’s contention, the Tribunal’s engagement with that evidence for the purpose of demonstrating a lack of contrition or remorse involved no error. Ground 2 must be dismissed.[19]
[19] HZCP v Minister for Immigration and Border Protection [2018] FCA 1803, [76], [78] and [95].
The evidence regarding the nature and seriousness of the Applicant’s offending
A Check Results Report with a report run date of 7 November 2019 contains the Applicant’s disclosable court outcomes.[20] Those offences disclosed are as follows:
[20] A number of other records of the Applicant’s offences were before the Tribunal, for example, a National Police Certificate, issued on 15 March 2018, which contained the Applicant’s recorded offences in the records of the Australian Federal Police and the police in all Australian states and territories as at 2 March 2018.
Court
Date
Offence
Result
Dandenong magistrate’s court
05/04/2017
Theft of a motor vehicle (3 charges)
Fail to stop vehicle on police direction
Reckless conduct endanger life
On each charge:
Aggregate 18 months imprisonment. Concurrent.
Licence cancelled and disqualified for 5 years.
Dandenong magistrate’s court
05/04/2017
Possess heroin
Possess methylamphetamine (2 charges)
Possess ecstasy (mdma/mda/mdea/mda’s)
Aggregate 18 Months imprisonment. Concurrent.
Dandenong magistrate’s court
05/04/2017
Poss cartridge ammunition w/o lic/permit
Aggregate 18 months imprisonment.
Concurrent.
Dandenong magistrate’s court
05/04/2017
Handle/receive/retention stolen goods
Theft
Dishonestly receive stolen goods
Aggregate 18 months imprisonment.
Concurrent.
Dandenong magistrate’s court
05/04/2017
Go equipped to steal/cheat (17 charges)
Aggregate 18 months imprisonment. Concurrent.
Dandenong magistrate’s court
05/04/2017
Theft-from shop (shopsteal)
Burglary
Assault emergency worker on duty (2 charges)
Deal property suspected proceed of crime
Theft
Fail to stop vehicle after an accident
Commit indictable offense whilst on bail
Unlicensed driving
Aggregate 18 months imprisonment. Concurrent.
Dandenong magistrate’s court
05/04/2017
Carjacking (use force steal vehicle)
18 months imprisonment.
Cumulative
Licence cancelled and disqualified for 5 years.
Dandenong magistrate’s court
05/04/2017
Robbery
18 months imprisonment.
Base sentence.
Licence cancelled and disqualified for 5 years.
Dandenong magistrate’s court
05/04/2017
Contravene community correction order
Proven
Dandenong magistrate’s court
05/04/2017
Breach re 28/07/2016
Possess heroin
Fail to answer bail (3 charges)
Theft of a motor vehicle
Theft
Possess methylamphetamine
Deal property suspected proceed of crime
Commit indictable offence whilst on bail
Breach of community order. Order cancelled. 1 month imprisonment aggregate.
Frankston magistrate’s court
28/07/2016
Possess heroin
Possess methylamphetamine
Convicted and a Community Correction order for 12 months.
Unpaid Community Work Perform 120 hours of community work.
Frankston magistrate’s court
28/07/2016
Fail to answer bail (3 charges)
Theft
Deal property suspected proceed of crime
Commit indictable offence whilst on bail
Convicted and a Community Correction order for 12 months.
Unpaid Community Work Perform 120 hours of community work.
Frankston magistrate’s court
28/07/2016
Theft of a motor vehicle
Convicted and a Community Correction order for 12 months.
Unpaid Community Work Perform 120 hours of community work.
Licence cancelled and disqualified for 3 months.
Dandenong magistrate’s court
08/06/2012
Failure to comply with undertaking order
Proven
Dandenong magistrate’s court
08/06/2012
Breach re 31/01/2011
Assault police
Drunk in a public place
Refuse to accomp to station for B.test
Unlicensed driving
With conviction, fined an aggregate of $500.00
Dandenong magistrate’s court
31/01/2011
Assault police
Drunk in a public place
Unlicensed driving
Without conviction, Adjourned to 31/01/2012. To pay $500.00 to the Court Fund.
Dandenong magistrate’s court
31/01/2011
Refuse to accomp to station for B.test
Without conviction, Adjourned to 31/01/2012. To pay $500.00 to the Court Fund. Licence cancelled and disqualified for 2 years.
As set out above, the Applicant was convicted and/or before the courts in 2011, 2012, 2016 and 2017, in summary:
(a)On 31 January 2011, the Applicant was given a $500 fine and was disqualified from driving for two years because of assaulting police, being drunk in a public place, unlicensed driving and refusing to accompany the police to a police station for a breath test. No conviction was recorded.
(b)On 8 June 2012, the Applicant was found guilty of failing to comply with an undertaking order; the report provides that the breach of undertaking was in relation to the January 2011 offences.
(c)On 28 July 2016, the Applicant was convicted for possession of heroin and methyl amphetamine, failure to answer bail and theft of a motor vehicle.
(d)On 5 April 2017, the Applicant was convicted of a number of offences, which are considered in more detail below, and for contravening the Community Correction Order imposed on him in relation to his 28 July 2016 convictions.
The offences committed between 16 October 2016 and 16 December 2016
A transcript of proceedings in relation to the Applicant’s plea hearing, before the Magistrates Court in Dandenong on 5 April 2017, was in evidence before the Tribunal (the 2017 Transcript) and provides much of the information that follows. At that hearing, the Applicant pleaded guilty to a number of offences.
On 16 October 2016, police observed the Applicant in the driver’s seat of a Holden Commodore which had been stolen on 5 October 2016.[21] The vehicle had been involved in a petrol theft on 7 October 2016. When the police searched the Applicant, they found heroin, methyl amphetamine and a tablet of ecstasy. The police also found 24 rounds of ammunition. A number of items were found in the car including a number of tools including a crowbar along with a black balaclava and a pair of black gloves. The police also found an “ice” pipe and jewellery. The police seized nine speakers which were located in the boot of the car. The Applicant stated that he did not think that the car was stolen and that he had paid $4,000 in cash to an unknown seller. The Applicant stated that the jewellery belonged to his mother.
[21] 2017 Transcript, page 3, line 17.
On 21 November 2016, at approximately 3am:
the victim was seated in his black 2009 Porsche in his driveway located at …Toorak. At the time, the accused, in company with a co-offender, driving a white twin-cab ute opened the car door and dragged him from the car throwing him to the ground. The offender then drove away in his vehicle. The accused's fingerprints were found on this vehicle when it was later recovered by police.[22]
[22] Ibid page 5, line 13.
On that day, one of the Applicant’s victims prepared a statement stating that in the early hours of the morning on that day he was asleep in the driveway of his home in his car and stated further that:
The door was opened, the driver’s door. I was grabbed around my t-shirt and told to get out of the car … I was dragged out onto the street… There were 2 men, I would say 20s, they were masked and had strong Australian accents. I was thrown to the street and they took off.[23]
[23] Witness Statement, 21 November 2016, Supplementary G –Docs, page 333.
On 22 November 2016, at 6.20am:
the accused drove in the stolen Porsche to … Narre Warren North. The accused and co-offender were captured on CCTV breaking into the premises before driving away in a white Mercedes Benz.[24]
[24] 2017 Transcript, page 5, lines 21–6.
On 23 November 2016, at approximately 7.30 am:
a white Mercedes Benz followed an Australian Post delivery van into Kemp Street, Springvale. When the employee stopped at an address to deliver mail, the accused got out of the Mercedes Benz and stole the Australia Post delivery vehicle.
The stolen Mercedes Benz was observed driving in the Clayton area on 16 December 2016 with the accused driving and another male in the passenger seat. Police followed the vehicle utilising the support of the police air wing. The accused drove the vehicle around Clayton, Springvale and Keysborough areas.
The accused attended the Dandenong Plaza Shopping Centre. The police approached the vehicle after it had parked, parking the police vehicle behind the Mercedes Benz preventing it from leaving, and the male passenger exited the vehicle and was arrested. The accused accelerated hard ramming the car into the police vehicle. Both police members who were approaching the vehicle were forced to jump out of the way and hide behind a concrete pillar to prevent being hit by the car.
The accused reversed and again rammed the police vehicle striking victim D…'s car in the process, and making no attempt to exchange details. He drove rapidly past the police members exiting the car park. As he exited the car park, he drove over a police tyre deflation device. The accused sped out of the plaza turning onto the Princes Highway and driving towards EastLink with the tyres on the vehicle deflating. The accused drove at high speed endangering the public in his attempt to escape.
As he reached EastLink, he lost control of the vehicle, which at this stage had lost all four tyres. The accused exited the vehicle and approached a Nissan Navara ute which was stopped at nearby traffic lights and opened the driver's door of the ute. The accused, desperate to escape, yelled, "Get out. Help me out, bro, I need your car." The victim in fear yelled, "No. What are you doing? Get out of my car." The accused reached over the victim trying to undo his seatbelt, the accused turned the ignition of the car off and the victim was resisting the accused's attempts to steal the car wrestling with him.
While the accused was still fighting, the police arrived and arrested the accused who attempted to fight. After the arrest, the accused's possessions were searched and $1270 in cash and a small bag containing methylamphetamine were located in his property. The accused did not provide an explanation for the origin of the money. Property was located in the vehicle driven by the accused confirmed as stolen from … Narre Warren.
The accused driving attempted car jacking and subsequent arrest were all captured on CCTV by the police air wing, as was the incident at Dandenong Plaza. At the time of offending, the accused was not a holder of a valid driver's licence and the accused was on bail at the time. The accused provided a no comment interview and declined to provide a DNA sample, and when asked his reason for the offending the accused stated, "I don't remember," but made no further comment.[25]
[25] Ibid pages 6–7, lines 2–30.
On 16 December 2016, a man who had been on Princess Highway, prepared a statement in relation to the events of 23 November 2016. He stated that:
He pretty much got on top of me and was trying to take my seatbelt off and pull me out of the car. I sort of grabbed his hand holding it there trying to keep my seatbelt in.
He then reached over and tried to get my keys out of the ignition, he was over me standing in the open door. He sort of stopped doing that, it seemed to me that he realised that he would need the keys to steal the car. I managed to turn the ignition off the keys remained in the ignition though.
I noticed a black Commodore police vehicle park directly in front of me. The guy climbed over the top of me and tried to get into the passenger side of my car.
I saw a male police officer go around to the passenger side of my car and open the car door. The police officer hit the guy with baton strikes attempting to restrain him.
The police officer hit the guy with about 3 baton strikes; he hit him to the upper body and shoulder area. I don’t recall the police officer saying anything.
It sort of looked like the guy gave up a bit after that, like he knew that he was caught.
The guy was then sort of stuck laying across both the passenger and drivers seats with his head and upper body in the foot well of the passenger seat and his lower body and legs were on top of me.
The guy was kicking out with his legs. I held the guys legs restraining them. I held his right arm. The police officer grabbed the arm I held putting handcuffs around his wrist.[26]
[26] Witness Statement, 16 December 2016, page 2 [13]–[20].
At the hearing a short video taken by Victoria police air wing was played. The video showed the Applicant driving a vehicle through the streets of Melbourne and at times travelling through traffic lights and against the proper flow of traffic.
Sentencing remarks
The sentencing judge stated that these were “very serious matters” and further that “just hearing the summary there certainly extremely serious matters.”[27]
[27] The 2017 Transcript, page 8, lines 6 and 20–1.
The Applicant’s lawyer made a number of plea submissions including by way of providing a background to the Applicant’s offending:
Unfortunately, 2015 his work began to slow down and his hours dropped significantly. This led to him having a lot of spare time and he reconnected with his high school friends who he formed the cannabis addiction with in his teens. By this stage, his high school friends had progressed to methamphetamine and heroine [sic] use, and Mr … began to participate in the same. In no time, his use spiraled [sic] out of control and this became a daily habit.
This became a daily habit from 2015 and was the underlying cause of his offending, and the reason that he's before the court today. Mr … instructs that if he did not use during the period of time from 2015 until the end of 2016 he would suffer withdrawals which would cause him to then return to alleviate the withdrawals. In regards to the brief of pattern, he instructs that during this period he was using methamphetamines and heroine [sic] on a daily basis.[28]
[28] Ibid page 41, lines 13–30.
In relation to the specific offending, the Applicant’s lawyer stated:
He instructs that sometime between 5 and 16 October he was in a poor mental state as a result of his drug abuse, but he does recall purchasing the vehicle from an unknown person after the date that it was stolen in Croyden. He instructs that he was not aware of the contents in the boot as he did not expect it when he purchased the vehicle, however, as he's not able to provide proof of purchase or the name of the seller his instructions are to resolve the matter today and accept responsibility as he was the owner of the vehicle at the time.[29]
[29] Ibid pages 12–3, lines 31 and 1–10.
The Magistrate stated, in response to the plea that Applicant be sentenced to between 6 to 9 months custody that:
How can you argue for a short term of imprisonment, bearing in mind you've conceded they're extremely serious charges that he's facing, and I don't see how you could possibly impose a short term of imprisonment for serious offences like this.
…
Surely, [deterrence] must play a major role in determining any imprisonment term here today. This sort of behaviour is really concerning the community at large, and I'm sure you understand that. People are concerned for their welfare even when they drive their motor cars on the road. Look what's happened on this occasion. The car jacking has taken place, when the police were involved they had to get out of the way otherwise they would have been run over by him. There's some very serious charges here.[30]
[30] Ibid pages 44–5, lines 8–12, 24–31 and 1–2.
In handing down sentence, the Magistrate stated:
I hear what [the Applicant’s lawyer] has said by way of submission on your behalf. Clearly, I have got to impose a term of imprisonment. She is looking at a certain period of imprisonment. I have indicated to her because of the extremely serious nature of some of these offences that her submissions are, with respect to imprisonment, in my view and I think in the view of the community, clearly not sufficient.
The period of imprisonment will be substantially more than what she has submitted is appropriate. On charge 42 on the super case, that is the robbery charge, you are convicted and sentenced to 18 months' imprisonment, and on charge 33, that's the car jacking charge at Dandenong on 16 December of last year, on that charge you are convicted and sentenced to 18 months' imprisonment. Those two sentences are to be cumulative upon each other.
With respect to all remaining charges, you are convicted and sentenced to an aggregate term of 18 months' imprisonment, and that sentence will be concurrent with the first two that I have just announced. So what that means is there is a total of three years' imprisonment and there will be a minimum of two years before being eligible for parole. A further order that with respect to charges 1, that is, theft of a motor car, 28, 29, they are theft of motor cars, 30 and 31, that is the fail to stop vehicle on police direction and the reckless conduct endangering life, and on the car jacking charge 33, and on the robbery charge 42 I understand you do not have a licence at the moment, so you are disqualified from obtaining any licence or permit for a period of five years.[31]
[31] Ibid pages 45–6, lines 10–31 and 1–18.
Application regarding the nature and seriousness of the Applicant’s offending
The evidence indicates that the Applicant has an extensive criminal record and that his offending spans a number of years and includes convictions in 2011, 2012, 2016 and 2017.
In 2017, the sentencing Magistrate characterised the Applicant’s offending as very or extremely serious. The Magistrate determined that the Applicant’s conduct warranted a lengthy custodial sentence. Paragraph 13.1.1(1)(d) of the Direction provides that the sentence imposed by the Court for a crime is a factor to which decision-makers must have regard. The significant sentence-imposed gives an indication of the seriousness of the Applicant’s offending.
The Applicant has repeated convictions in relation to assaults on police. Of particular concern is the Applicant’s conduct on 23 November 2016, in accelerating and ramming into a police car which resulted in police members being forced to jump out of the way and hide behind a concrete pillar to prevent being hit, as well as his resisting arrest after a police pursuit. The Direction at paragraph 13.1.1(c) sets out the principle that crimes committed against government representatives or officials due to the position they hold, or in the performance of their duties, are serious.
The Applicant was sentenced in relation to a total of 50 offences on 5 April 2017 for offending between 21 March 2016 and 16 December 2016. In relation to the Applicant’s course of offending, of particular concern are his offences:
(a)on 21 November 2016, where a victim was dragged from his car while in his driveway;
(b)on 23 November 2016, where the Applicant attempted to steal another car while being pursued by police; and
(c)the video captured by the police air wing that showed the Applicant attempting to evade police and driving on the wrong side of the road thereby endangering innocent members of the community.
Paragraph 13.1.1(a) of the Direction provides that it is a principle that violent crimes are viewed very seriously. I find that the Applicant’s offending consisted of violence on various occasions including in circumstances where he physically removed or attempted to remove members of the community from their vehicles in order to steal those vehicles and assaults against police referred to above. Paragraph 6.3(3) of the Direction provides that a non-citizen who has committed a serious crime should generally expect to forfeit the privilege of staying in Australia.
The Applicant’s representative submits that the Applicant’s offending can be described as frequent given the total number of charges, but notes that the bulk of the offending was contained within the months of March to December 2016, and submits that only a small number of the offences (related to events of 21 November and 16 December 2016) involved violence and risk to the community.[32] Notwithstanding, I find that the Applicant’s offending was frequent having regard to the periods in which the Applicant committed numerous offences and that the trend of his offending is of increasing seriousness (from possession of drug and arms offences to assault on emergency workers and reckless endangerment) culminating in his car chase and his arrest by police.[33]
[32] Applicant’s Closing Submissions, page 6 [16].
[33] See paragraph 13.1.1(e) of the Direction.
For these reasons, on the basis of the evidence before the Tribunal, I find that the Applicant’s offending is very serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The principles set out in paragraph 6.3 of the Direction provide relevantly:
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations maybe insufficient to justify not cancelling or refusing the visa.
Paragraph 13.1.2 of the Direction provides that in considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)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 re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Evidence regarding the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
On the basis of what is stated above in these reasons regarding the seriousness of the Applicant’s offences, I find that the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct is very serious harm.
Certain evidence before the Tribunal is relevant to a determination regarding the likelihood of the Applicant engaging in further criminal or other serious conduct; this evidence is considered under headings as follows:
(a)Evidence of the Applicant’s drug use insofar as the evidence shows that his drug use underpins his offending.
(b)The Applicant’s remorse and insight into his offending.
(c)The Applicant’s compliance or non-compliance with undertakings given to the Courts and his participation in Drug Court.
(d)The Applicant’s participation in rehabilitative courses.
(e)Evidence of the Applicant’s work prospects if released.
Evidence of the Applicant’s illicit drug use
A document entitled “Penelope Case Management – Document Report”, with an event start date of 6 March 2017, was in evidence before the Tribunal. The report concerned the Applicant’s Drug Court sentencing and provides information in relation to the Applicant’s drug use as follows:
Alcohol
He started drinking alcohol at 15 years of age, when he was engaging in binge drinking patterns on weekend with peers. He stated that he would typically consume around 12 cans of premixed spirits and half a bottle of spirits, once per week. That pattern of use continued up until 21 years of age. Over the last five years, he stated that he had reduced his intake and typically Ingested one stubbie of beer, on two occasions per year. He stated that he reduced his alcohol use, due to the onset of gout.
Cannabis
He first tried cannabis at 15 years of age and he quickly developed a daily pattern of use, smoking around three grams per occasion. He then ceased use at 21 years of age and reported no further ruse of the drug over the last five years.
Methamphetamines
He started smoking methamphetamines at 19 years of age, when he was smoking the substance intermittently. He was then engaging in periods of daily use from 23 years of age and most recently before entering custody in December 2016, he was smoking one gram per occasion. Upon his release from custody, he wanted to remain free of methamphetamines, for the benefit of his health and his family.
Heroin
He started smoking heroin at 19 years of age, when he was typically having ½ - 1 gram on a daily basis. He then revealed a history of sporadic use over the years and at the peak period of use before entering custody in December 2016, he was typically having one gram per day. He noted that his longest period of abstinence from the drug had spanned the last two months whilst in custody. He planned to remain free of heroin in the future.[34]
[34] “Penelope Case Management – Document Report”, page 2.
The report also provided, under the section headed ‘Psychosocial’:
In regards to his educational history, he completed Year 8 at Heather Hill Secondary College in Noble Park and he then went on to work in construction and the meatworks industry. He was last employed at the beginning of 2016 and most recently, he stated that he was supporting himself through drug dealing practices.[35]
[35] Ibid page 4.
In a statement, dated 12 February 2019 (the February 2018 statement), the Applicant stated:
My history of offending behaviour is not long. It is a result of extenuating factors that I have been trying to mitigate during my time being incarcerated. Addiction and substance abuse because of poor coping mechanisms have been the main reasons for my offending. Leading up to my arrest and my subsequent conviction I was bombarded with so many unforeseen crises including the failing health of my father and the unexpected financial strain that put me under. My partner was also pregnant during this phase and this news hit me with a sense of being overwhelmed. I panicked and consequently I have found myself in the worst situation possible. Instead of reaching out for help, I made the poor choice to try and ignore my problems and found that this led to my situation worsening. I know now that drug and alcohol abuse does not help a situation get better.[36]
[36] February 2018 statement, page 6 [G10, page 94].
On 2 December 2019, the Applicant prepared a statement in support of his application before the Tribunal (the December statement). In his December statement, the Applicant stated that in relation to his convictions of assaulting police in 2011 and 2012:
I understand that between 2011 and 2012 I have two convictions of assaulted police. There is no excuse for this behaviour but I do know that alcohol played a significant role in that behaviour. Following the last of these sentences I stopped consuming alcohol.[37]
[37] December Statement, page 2, [18].
In the lead up to the Applicant’s 2017 convictions, the Applicant stated in his December statement:
However, towards the end 2015 and/or start 2016 I found that I started using drugs heavily and incidentally became acquainted with individuals from the “wrong crowd". I believe the drug use and subsequent addiction was triggered by severe stress caused by my increased financial responsibility for my parents (my father stopped working in 2015 due to medical reasons), as well as my young family. Prior to this I only used drugs recreationally on a non-frequent basis, just socially, not to “escape" the realities (stresses) of life or in hopes to “block out feelings and thoughts".
During the worst period of my drug use between 2016 and 2017 I was using ice, heroin and ecstasy here and there.
As I lost control of my drug use so too did my criminal offending spiral out of control, when eventually on 5 April 2017 I was convicted in the Magistrates Court of Victoria of robbery and carjacking and sentenced to 18 months' imprisonment on each offence, to be served cumulatively.[38]
[38] Ibid page 2 [19]–[21].
The Applicant’s partner gave oral evidence of her opinion as to why the Applicant had commenced using drugs and committing offences. She stated that the precipitating factor in his 2015 and 2016 offending had been his father’s heart attack in mid-2015. She stated that the Applicant had been affected by a loss of work in early 2015. The Applicant’s partner stated that around the time of the Applicant’s father’s heart attack the pressure felt by the Applicant of being responsible for taking care of his parents and his immediate family resulted in him not being able to cope. She stated that the Applicant views that the responsibility of taking care of a family ought be placed upon the husband.
The Applicant’s partner stated that she noticed his drug use in around 2015 after the Applicant’s father’s heart attack. She stated that she started noticing the Applicant sleeping excessively, coming home with bloodshot eyes and failing to help with their children.
The Applicant’s partner stated that prior to 2015 she had not seen the Applicant affected by drugs. She stated that she confronted the Applicant around Christmas 2015 and that she threatened him that she would leave the relationship. The Applicant’s partner stated that at that stage the Applicant “broke down” and agreed to reform. She accepted that, despite his reassurance, the Applicant continued to use drugs from Christmas 2015.
The Applicant’s partner was taken to a statement related to the Applicant’s attendance at Drug Court which stated that the Applicant had been selling drugs since early 2016 to support himself: see above Penelope Case Management – Document Report at page 4. She agreed that this statement was true.
The Applicant gave oral evidence, confirming his partner’s evidence, that his partner gave him an ultimatum in December 2015 that if he did not stop using drugs, she would leave him and take their children. The Applicant gave evidence to the Tribunal that despite this warning he continued to use drugs. The Respondent submits that these circumstances should lead the Tribunal to not be satisfied that the Applicant will refrain from further offending. The Respondent further submitted that, on the basis that the Applicant’s offending was contributed to by drug taking and social and familial stressors, such stressors would exist if the Applicant were to be released into the community and that he has only now engaged with drug and alcohol programmes in the strictly controlled environment of prison.[39]
[39] Respondent’s Statement of Facts, Issues and Contentions, pages 7-8 [24].
The Applicant’s representative submits that the Applicant’s offending is linked to a “distinct period of his life, which he met with inadequate coping strategies, drug use and negative social influences” but that the Applicant recognises those circumstances and is remorseful.[40]
Evidence of the Applicant’s remorse and insight into his offending
[40] Applicant’s Closing Submissions, pages 6–7 [17].
In the Applicant’s February 2018 statement, the Applicant stated:
I am deeply remorseful for my actions and to demonstrate this I have used my time in prison to focus on my rehabilitation and reintegration back into the community. I appreciate and value my family and our life here in Australia and if the decision to mandatorily cancel my visa is revoked, I am committed to be a positive, productive and engaged member of Australian society.
…
I understand the gravity of my offences and that my actions put others in the community at risk. However, the offending behaviour that has put me in this predicament is not a reflection of my overall character but rather largely a result of poor coping strategies and addiction to alcohol and other substances. I have in the past committed acts of violence, but this is not my nature and I understand that this wrong. While I have had some contact with the police in the past, this is my first prison sentence – and I intend for it to be my last.[41]
[41] February 2018 statement, page 1.
In his December statement, the Applicant stated generally in relation to his offending that “I understand the gravity of my offences and that my actions put others in the community at risk”.[42] He stated that he acknowledged that he had made poor decisions but that he was working hard to rectify these mistakes. He stated further:
Upon reflection I believe my criminal offending was largely a result of poor coping strategies with significant life stressors that existed at the time, addiction to alcohol and other substances.[43]
[42] December statement, page 3 [27].
[43] Ibid [28].
In terms of the consequences of his imprisonment, the Applicant stated in his December statement:
While I have had some contact with the police in the past, this is my first prison sentence - and I intend for it to be my last
I truly believe that jail has saved my life. Previously I thought drugs was the only way to cope but now I know l can talk to someone, a professional, and that there are services out there that can assist me. I am thankful for my sentence as I realise it could have ended even worse than it did (the risk of harm that I caused on the community).
The sentence has opened up my eyes. I’m healthy now. I’ve stopped smoking. I have never had a history of drugs in jail, or any other kind of incident.
I had to come to jail for me to learn that there are consequences for the things you do and I think about this every day and every night.
I am reminded of the harsh reality of my consequences every time I talk to my kids. I break every time I talk with my kids as they ask me "Why is it taking so long? When are you coming back? What have you done?” It also breaks me when my kids go to a family function and the other children have both their parents there, but my kids only have their mum and are without their father.
I remember one day there was a family day at school and my son told [my partner] not to attend because she would be the only mother there by herself. This breaks me at every thought and I want to avoid separation from my kids at all costs.[44]
[44] Ibid [29]–34.
The Applicant stated that he has broken ties with old associates that were influential in his criminal offending behaviour and had learned to identify positive relationships.
The Applicant provided an undated statement which stated that his “unfortunate criminal actions have been a consequence of poor decisions involving drug and alcohol addictions.”[45] He stated that he accepted full responsibility and was very remorseful for what he had done.[46] The Applicant stated that he was ashamed and sorry for his mistakes.
[45] G28, G-Documents, page 136.
[46] Ibid.
In evidence to the Tribunal, the Applicant’s partner stated that the Applicant was a “different person” now from the time of his incarceration. She stated that she had observed him dealing politely with prison officers; in the past, she stated that he was short tempered but that she observed that he had learned to control his temper since being in prison.
The Applicant’s partner gave evidence that the Applicant is a loving partner and father. She stated that despite his criminal history that the Applicant is a good person, and better now that he has changed following the realisations arising from his incarceration.
The Applicant’s partner stated that she had not spoken to the Applicant about his offending. She stated that the Applicant did not like to talk about his offending and has told her that the offending is in the past and that he was very remorseful.
At the hearing, the Applicant continued to assert that he had bought the Holden Commodore in 2016 which he was convicted of stealing. The Respondent submits that the Applicant’s continued denial that he stole the vehicle, despite being convicted of such in 28 July 2016 (as well as denying other facts of the 5 April 2016 conviction), indicates an attempt to deceive the Tribunal or inability to accept the offence.[47]
[47] Respondent’s Closing Submissions, page 3 [4(c)]—[(d)].
The evidence that the Applicant gave before the Tribunal indicated that he appreciated the seriousness and gravity of his situation, and the consequences of his offending behaviour. The Applicant’s representative submits that the Applicant demonstrates remorse and has reflected on his behaviour.
The Applicant’s father gave evidence that he had not spoken to the Applicant about his offending. He stated that he and his wife chose not to interfere in the Applicant’s life but rather prayed for their son. He stated further that the Applicant had told him that he was sorry to the family and that he would not repeat his behaviour.
The Applicant’s mother provided an undated statement where she stated:
My son has made positive changes to his life since being incarcerated. He has stayed out of trouble and did courses to keep himself busy during his imprisonment. He has seeked [sic] help and has no intensions of going back to the lifestyle he was living before going into custody. He has shown deep remorse for the crime he has committed, and as everyone else knows that it was out of character and are certain it will never happen again.[48]
Prior undertakings, bail and Drug Court
[48] G19, G-Documents, page 124.
On 8 April 2016, a warrant to arrest the Applicant was issued for failure to attend on bail.
The Applicant’s partner stated in her December statement that she had been significantly impacted by the separation from the Applicant. She stated that she felt angry, sad and anxious and that she felt depressed. She also stated that she regularly visited the Applicant twice a week while he has been incarcerated.
The Applicant’s partner gave evidence that the impact upon her of the Applicant going to prison has been that she has also had to take on the responsibility of taking care of and financially supporting the Applicant’s parents. She stated that taking care of the Applicant’s parents involved taking them to various appointments and other tasks related to their medical conditions. The Applicant’s partner stated that following the Applicant’s incarceration that she was “a wreck” but that she had to keep going because of her children.
The Applicant’s parents
The Applicant, in his December statement, stated that his parents both have serious medical conditions; in 2015 his father had a minor heart attack, then underwent heart surgery and has since had five bypass surgeries. He stated that his father cannot walk unassisted after having a knee replacement following an infection. The Applicant stated that his mother had heart problems and had undergone three bypass surgeries.
An undated statement of the Applicant’s father is contained in the evidence before the Tribunal. He stated that he has been unable to return to work since 2015 due to his heart attack. He stated that he had had a number of surgeries in relation to his heart and that in 2017 he had a knee replacement. On 20 October 2017, a cardiothoracic surgeon prepared a medical report setting out the Applicant’s father’s medical conditions.
The Applicant’s father stated that the Applicant had been a regular member of his church and had been a great leader to the younger generations. He stated that he had seen how the Applicant sincerely regrets having committed his crimes. The Applicant’s father stated further that the Applicant was very remorseful and apologetic in relation to his offending. He stated further:
Since his incarceration our daughter in-law has stepped in to take care of us. She has done absolute everything for me and my wife, from caring for us daily, running errands for us, taking us to our hospital and doctor appointments, Centrelink, physio and catering to our grandchildren at the same time. She is struggling, stressed without my son around to help her raise their children. We need our son here to care and support us physically and financially as were getting old to care for ourselves.[80]
[80] G18, G-Documents, page 123.
The Applicant’s father was shown his statement which he stated remained accurate and gave further evidence at the hearing. He stated that since his heart attack he had stopped working and that he was now a recipient of Newstart as he was unable to receive the Disability Support Pension. He stated that the family also received income on the basis that his wife was his carer.
The Applicant’s father said that his son has assisted him in the past in a number of manners related to his medical conditions such as taking him to the toilet and shower. He stated that the Applicant was able to lift him, which other carers were not able to do given his weight.
The Applicant’s father was questioned as to whether either his other son or his daughter would be able to take care of him and his wife should the Applicant be returned to New Zealand. He stated that his daughter had her own family and was just out of hospital. In relation to his other son, he stated that he was busy attending to a small business and would be unable to assist in his and his wife’s care.
The Respondent submitted that as the Applicant has two adult siblings, there was no evidence that they were not able or willing to provide the care of the Applicant’s parents. The Applicant and his family gave evidence that it was strongly felt that the Applicant, as the eldest son, had the responsibility to provide the care of his parents, and that this arrangement was common among Cook Islander people (of which the Applicant and his family are members).
The Applicant’s mother
The Applicant’s mother provided an undated statement wherein she stated that her husband had been extremely ill with a bad heart and knee complications, and that she was also ill. She stated that she was very much affected by the cancellation of the Applicant’s visa. She stated that in addition to her heart problems she now suffers from memory loss, such that she can forget where she lives and the identity of people she knows well.
Other family members
The Applicant’s eldest sister provided an undated statement in support of the Applicant. She stated that the Applicant had been a good role model to his nephews and nieces. She stated further that the Applicant was hard-working.
KJM, who described herself as a “distant” cousin “being from the same country”, also provided an undated statement. She stated that she had known the Applicant for over eight years. KJM stated further that the Applicant:
also took care of all his girl cousins, made sure we didn't walk home at night, drove us to our door steps. He had so much respect for women and children, he made sure he tried his hardest to do right by them.[81]
Strength of family and social links with Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely
[81] G22, G-Documents, page 128.
A case management report provides evidence in relation to the Applicant’s past:
Born in New Zealand, he was the eldest child of two children. He explained that both of his parents were from the Cook Islands and when he was 10 years old, the family unit migrated to Australia. He described a positive childhood experience and was raised in Springvale, alongside his younger brother. He stated that he was always well cared for and he revealed no history of violence, substance abuse and/or neglect in the family home. Both of his parents had worked over the years, his father was employed at a meat works, whilst his mother worked for a printing company. He noted that during his younger years, his family were heavily involved in the church community and he also enjoyed playing rugby on weekends. At the time of Interview, he described being in regular contact with his family and he noted that they were positive supports.[82]
[82] “Penelope Case Management – Document Report”, page 4.
Much of the evidence in relation to the strength of the Applicant’s links to his immediate family are considered above. There was further evidence before the Tribunal in relation to the strength of other family and social links.
On 27 January 2018, VA (the Applicant’s cousin) provided a statement. She stated that the Applicant had always been a hard worker and provided for his family. VA stated further that he was kind, generous and always put his family first.
AK, the Applicant’s cousin, also provided an undated statement,[83] in which she stated that she had known the Applicant since birth and that he had grown to be a respectful and kind young man. She stated that the crimes that he had committed were very uncharacteristic of him. AK stated that the Applicant was a very humble, kind-hearted and family-oriented person who just happened to be around the wrong people and had broken the law.
[83] G23, G-Documents, page 129.
The Reverend of the Mulgrave Christian Church provided a statement in support of the Applicant. He stated that he had met the Applicant in 1995 when he was only five years old. The Reverend stated that he was very proud of the man the Applicant has been over the years that he has known him, apart from “this problem is facing”.[84] He stated that the Applicant had been attending church since he had known him. The Reverend stated that the Applicant’s parents were very well respected within the church community. He stated that the Applicant was a very humble and kind-hearted man, always interacting with others and never the type to cause any trouble at all.
[84] G24, G-Documents, page 130.
A director of a company providing pile trimming and concrete breaking services, provided an undated statement and stated that he had known the Applicant for seven years and had come to know him as genuine, honest and hard-working. He stated that the Applicant was a former employee of the company as a jackhammer periodically when work was available from 2011. He stated that he would be willing to offer the Applicant employment should the Applicant be afforded the opportunity.
On 23 January 2018, a second director of the concrete breaking company provided a statement which stated that the Applicant was a father of great integrity, honest, trustworthy and extremely dedicated to his family. He confirms that the company is willing to offer him future employment.
Application of strength, nature and duration of ties
The consideration concerning the strength, nature and duration of the Applicant’s ties to Australia weighs significantly in favour of the Applicant as:
(a)the Applicant arrived in Australia as a child and has spent most of his life in Australia.
(b)The effect of non-revocation upon the Applicant’s partner will be very substantial and, on his parents, the effect may be substantial while noting that:
(i)the Applicant has been in custody for the last 3 years;
(ii)I have found that it is likely that the Applicant will re-offend, a fact that tends to have the potential both to diminish the positive impact of non-revocation and increase a potential negative impact; and
(iii)the Applicant has other siblings and family members to provide support to his parents.
(c)The Applicant has substantial family and social links to Australia which are the result of having spent the majority of his life in Australia. The persons who gave evidence in support of the Applicant, while somewhat self-serving, were consistent in stating that the Applicant was generous and family-oriented man.
3) Impact on Australian business interests
There was no evidence before the Tribunal of any impact on Australian business interests if the Applicant’s visa cancellation was not revoked. The evidence from the Applicant’s former employers was limited to a statement that they would be willing to offer the Applicant employment should he be released from custody.
4) Impact on victims
This consideration is relevant where there is evidence before the Tribunal that victim of a non-citizen’s offending is aware of the visa cancellation process and has expressed a view on it. There was no such information before the Tribunal. This consideration carries no weight.
5) Extent of impediments if removed
Paragraph 14.5(1) of the Direction directs the decision-maker to consider:
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 substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
The Applicant is 29 and apart from the evidence of his addictions there was no relevant evidence of any health conditions. There are no substantial language or cultural barriers as a result of returning to New Zealand.
The evidence before the Tribunal was that the Applicant does not have any close family residing in New Zealand, as all are resident of Australia. The social, medical and economic support provided by the government of New Zealand can be regarded as comparable to Australia.
The Applicant’s representative concedes that the Applicant is relatively young but submits that the length of his absence from New Zealand and lack of familiarity and familial ties would significantly impact the Applicant. The Respondent submits the Applicant would be able to establish himself and maintain basic living standards if returned to New Zealand.
In terms of the extent of any impediments that the Applicant may face if removed from Australia to New Zealand, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of New Zealand), I find that, on balance, this consideration weighs in favour of the Applicant because his capacity to establish himself and maintain basic living standards would be significantly impeded by the absence of any close family or social ties in New Zealand. As a result, the Applicant would have little to no social support.
I make that finding taking into account and notwithstanding the:
(a)lack of any relevant difference in government support between Australia and New Zealand;
(b)absence of any substantial language or cultural barriers; and
(c)Applicant’s relative age and health (taking into account his problem with addictions).
II. CONCLUSION
For the above reasons, I determine the present application for review under s 501CA of the Act as follows:
First, I find that the Applicant fails the character test as defined by s 501 of the Act because he has a substantial criminal record.
Second, I find that there is no other reason why the original decision to cancel the Applicant’s visa should be revoked. In arriving at that conclusion, I have considered the provisions of the Act and the Direction and made findings as follows:
Primary considerations
(a)Protection of the Australian community:
(i)Nature and seriousness of the conduct to date: I find that the Applicant’s offending is very serious, as it involved assaults against police officers, consisted of violence on various occasions and was frequent and was increasing in seriousness; and
(ii)Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct: for reasons provided above, I find that the Applicant presents a real risk of reoffending.
This consideration weighs heavily against revocation of the cancellation of the Applicant’s visa.
(b)Best interests of the Applicant’s minor children:
(i)For the reasons above, including the nature and duration of the Applicant’s relationship with his children, I find revocation is in the best interests of the Applicant’s children.
As a result, I find this consideration weighs significantly in favour of revocation of the cancellation of the Applicant’s visa.
(c)Expectations of the Australian community:
(i)As explained in FYBR, this consideration necessarily weighs against the Applicant as I have found that he does not pass the character test; and
(ii)The seriousness and circumstances of the Applicant’s offending tend significantly against revocation.
I find that this consideration weighs significantly against revocation of the cancellation of the Applicant’s visa.
Other considerations
(a)Strength, nature and duration of ties:
(i)On the length of time that the Applicant has resided in Australia: the evidence shows that he has spent the substantial part of his life and adulthood in Australia;
(ii)On the effect of non-revocation upon immediate family members: the applicant’s partner and parents gave evidence and I accept that non-revocation would substantially impact their lives financially and socially; and
(iii)On the strength of family and social links with Australian citizens, permanent residents: evidence of the Applicant’s extended family, former employers, and religious leader demonstrates strong social ties to Australia.
This consideration weighs significantly in favour of the Applicant.
(b)Extent of impediments if removed:
(i)As outlined above, the Applicant’s capacity to establish himself would be significantly impeded by the absence of any close family or social ties. This consideration weighs in favour of the Applicant.
On balance, notwithstanding that the best interests of the Applicant’s children and the strength nature and duration of ties strongly favour revocation of the cancelation of the Applicant’s visa, the protection of the Australian community and community expectations (as formulated under the Direction), which strongly weigh against revocation, outweigh the considerations in favour of revocation.
V. DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 190 (one hundred and ninety) paragraphs are a true copy of the reasons for the decision herein of Senior Member R. Pintos-Lopez
.......[sgd].................................................................
Associate
Dated: 17 December 2019
Dates of hearing: 5 and 6 December 2019 Date final submissions received: 10 December 2019 Advocate for the Applicant: Jennifer Samuta Advocate for the Respondent: Christopher Orchard
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