Larkins and Minister for Home Affairs (Migration)
[2019] AATA 210
•20 February 2019
Larkins and Minister for Home Affairs (Migration) [2019] AATA 210 (20 February 2019)
Division:GENERAL DIVISION
File Number: 2018/7238
Re:Ian Larkins
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:20 February 2019
Place:Melbourne
The Tribunal affirms the decision under review, being
the decision of a delegate of the Minister for Home Affairs on 29 November 2018, not to revoke the cancellation of
Mr Larkins’ visa.
.......................[sgd].................................................
Senior Member A. Nikolic AM CSC
MIGRATION – Mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) Visa – request for revocation of visa cancellation – substantial criminal record – numerous violent offences – alcohol and illicit substance abuse – failure to pass character test – Ministerial Direction No. 65 applied to specific circumstances of case – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Amendment (Character Cancellation Consequential Provisions) Act 2017 (Cth)Migration Regulations 1994 (Cth)
Cases
Adut and Minister for Home Affairs, Re [2018] AATA 4089
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
DPP v Larkins [2014] VCC
DPP v Larkins [2018] VCC 1339
Falzon v Minister for Immigration and Border Protection (2018) 351 ALR 61
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
LCNB and Minister for Immigration and Border Protection, Re [2015] AATA 463
Letchford and Minister for Home Affairs, Re [2019] AATA 26
Rabino and Minister for Immigration and Border Protection, Re [2016] AATA 999
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68
Secondary Materials
Ministerial Declaration No. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (dated 22 December 2014)
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
20 February 2019
INTRODUCTION
The applicant, Mr Ian Larkins, is a 26-year-old citizen of New Zealand. He arrived in Australia when he was eight years old[1] and has not left Australia since. Mr Larkins seeks review of a decision by a delegate of the Minister for Home Affairs (“Minister”), made under s 501CA(4) of the Migration Act 1958 (“the Act”), not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) Visa (“the visa”).[2]
[1] Exhibit R1, 157.
[2] Ibid, 3-15.
The hearing was held in Melbourne on 11 February 2019. Mr Larkins appeared via video-link and was self-represented. The Minister was represented by Mr Christopher Orchard, a solicitor from Sparke Helmore Lawyers. Pursuant to s 500(6L) of the Act, the Tribunal must discharge its review function in respect of this application by 21 February 2019.
For the reasons that follow the Tribunal affirms the decision under review.
BACKGROUND
First visa cancellation and revocation
The current visa cancellation process is not the first occasion Mr Larkins has come to the attention of immigration authorities. After learning that Mr Larkins had been convicted of armed robbery and other offences in early 2014, the National Character Consideration Centre (“NCCC”) of the then Department of Immigration and Border Protection (“Department”), wrote to Mr Larkins regarding the possible cancellation of his visa.[3] After considering Mr Larkins’ response, his visa was cancelled under s 501(3A) of the Act.
[3] Ibid, 128.
In accordance with an invitation extended to Mr Larkins, he made representations requesting that the visa cancellation decision be reversed. After considering those representations, a delegate of the Minister decided on 16 September 2016 to revoke the cancellation of his visa.[4] Mr Larkins formally acknowledged receipt of the revocation notice, signifying his understanding that his visa may again be considered for cancellation if he came to the attention of the Department in the future.[5] In that circumstance, his past conduct and previous relevant information could also be reconsidered.
[4] Ibid, 154-155.
[5] Ibid, 156.
Second visa cancellation and non-revocation
In the two years after Mr Larkins’ first visa cancellation was revoked, he continued to commit further violent and dangerous offences. Following further convictions in March and April 2017, his visa was again mandatorily cancelled in June 2017.[6] At that time Mr Larkins was serving a full time sentence of imprisonment.[7] He was again invited to make representations seeking to have the cancellation decision reversed and did so on 19 June 2017.[8] Further information was conveyed to Mr Larkins on 27 September 2018,[9] to which he responded on 4 October 2018.[10] After considering Mr Larkins’ representations, the Minister decided on 29 November 2018 not to revoke the cancellation of his visa.[11]
[6] Ibid, 158-162.
[7] Ibid, 164.
[8] Ibid, 40-58.
[9] Ibid, 59-60.
[10] Ibid, 61.
[11] Ibid, 3-15.
By application dated 10 December 2018 Mr Larkins applied to the Administrative Appeals Tribunal (AAT) for a review of the Minister’s decision. In the section of the application that enables applicants to state why they consider the decision under review to be wrong,
Mr Larkins stated: ‘Unfair decisions [sic].’
Relevantly, applying to the type of visa held by Mr Larkins, Senior Member Morris of the AAT noted in Letchford and Minister for Home Affairs, Re [2019] AATA 26 at [25]:
… All temporary visas are inherently subject to the power of cancellation within the requirements of the Act… In addition, it is explicit that the Class TY Subclass 444 Special Category (Temporary) visa is, by operation of section 31(1) of the Act and Schedule 2 of the Migration Regulations 2004, a temporary visa.
EVIDENCE BEFORE THE TRIBUNAL
History of criminal offending
Mr Larkins’ National Police Certificate discloses a lengthy history of offending.[12] He first appeared before the Children’s Court in 2008 when aged 15. Initial charges against him between 2008 and 2011 included: Recklessly cause serious injury; Unlawful assault; and Assault in company. The court dealt with these offences by way of youth supervision orders, fines, compensation and without conviction. On 14 June 2011, when Mr Larkins was aged 18, he was convicted of: Prisoner-escape custody; Assault police; Resist police; Robbery (2 charges); Intentionally cause injury (3 charges); Theft-from shop; State false name when requested; and Fail to answer Bail Granted.[13]
[12] Ibid, 198-200.
[13] Ibid, 199.
Between 2011 and 2018, Mr Larkins was convicted of further offences. In addition to his National Police Certificate and an Australian Criminal Intelligence Commission report dated 14 September 2018,[14] the following documents inform consideration of his criminal history:
[14] Ibid, 16-18.
(a)
Reasons for sentence of the County Court of Victoria at Melbourne dated
3 February 2014;[15]
(b)Transcript of proceedings of the Victorian Magistrates’ Court at Shepparton dated 4 August 2017;[16]
(c)
Reasons for sentence of the County Court of Victoria at Shepparton dated
27 August 2018;[17] and
(d)“G-documents” numbering 200 pages[18] and “Supplementary G-documents” numbering 293 pages,[19] comprising documents produced under summons by the Shepparton Magistrates’ Court, Shepparton County Court, and Victoria Police.
[15] Ibid, 32-38; DPP v Larkins [2014] VCC.
[16] Ibid, 22-31.
[17] Ibid, 19-21; DPP v Larkins [2018] VCC 1339.
[18] Exhibit R1.
[19] Exhibit R2.
It is not necessary to itemise Mr Larkins’ entire criminal record. His criminal convictions during the last five years in particular include the following:
(a)3 February 2014. Mr Larkins had just turned 20 when he committed Armed Robbery.[20] He was sentenced to two years and six months imprisonment. The reasons for sentence refer to him having a ‘considerable criminal record involving a pattern of drug use and aggressive behaviour fuelled by drug use.’[21] The court stated that Mr Larkins crime had ‘exposed an innocent employee who was just doing her job to a terrifying situation in which she was threatened with a firearm;’[22]
[20] Ibid, 40.
[21] Exhibit R1, 34 [5].
[22] Ibid, 35 [13].
(b)10 February 2014
. Burglary, Attempt theft, Criminal damage (Intent Damage / Destroy), Be disguised with unlawful intent, and Go equipped to steal / cheat;[23]
[23] Ibid, 17.
for which Mr Larkins was sentenced to an aggregate of six months imprisonment;
(c)17 March 2014. Intentionally cause injury, and Theft; for which Mr Larkins was sentenced to three months imprisonment;
(d)8 March 2017. Possess cartridge ammunition without licence / permit, and Possess controlled weapon without excuse; for which Mr Larkins was fined;
(e)4 April 2017. Dangerous driving while pursued by police, Unlicensed driving, Fraudulently use registration label, Resist emergency worker on duty, and Possess / use / carry prohibited weapon,[24] for which Mr Larkins was sentenced to an aggregate of six months imprisonment. The sentencing judge described Mr Larkins’ efforts to escape apprehension while driving a vehicle and being pursued by police as a ‘horror story,’ warning that a repeat of such conduct would take Mr Larkins ‘down a terrible dark place.’[25] Mr Larkins’ legal representative accepted the following as a ‘fair summary’ tendered by the prosecutor:[26]
[24] Ibid.
[25] Ibid, 30 [2]; [29].
[26] Ibid, 27 [3].
(i)After Mr Larkins bail had been revoked, police sought to intercept the vehicle he was driving by activating their lights and sirens;
(ii)Mr Larkins failed to stop and a ten kilometre pursuit ensued, during which he drove on the wrong side of the road and at speeds of up to 130kph in an 80kph zone;[27]
(iii)Mr Larkins drove through red traffic lights without slowing.[28] His dangerous driving caused a police vehicle and a number of oncoming civilian vehicles to take evasive action to avoid a collision;
(iv)As police attempted to box in Mr Larkins’ vehicle, he caused damage to two more police vehicles before escaping on foot;[29] and
(v)Mr Larkins was arrested three days later during the execution of a search warrant, after being located in a bathroom holding a large machete.[30]
(f)27 August 2018. Possess drug of dependence, Possess drug of dependence for the purpose of trafficking, and Possess controlled weapon without excuse; for which Mr Larkins received an aggregate sentence of nine months imprisonment.[31] The sentencing judge observed that Mr Larkins was: [32]
…no stranger to the criminal justice system…I am told that you have been drug free since your arrest, and that is the longest time you have been drug-free since you were a teenager.
(g)7 November 2018. Unlawful assault against another detainee in immigration detention.[33]
[27] Ibid, 25 [18].
[28] Ibid, 25 [15]-[16].
[29] Ibid, 26 [12]-[13].
[30] Ibid, 26 [21].
[31] DPP v Larkins [2018] VCC 1339.
[32] Exhibit R1, 20 [3]; [8].
[33] Exhibit R2, 180.
Evidence of Mr Larkins
The Tribunal notes the material from Mr Larkins in the G-documents, including his revocation request dated 9 June 2017,[34] his Personal Circumstances Form dated 12 June 2017,[35] and several hand-written statements he lodged with the Department on 1 and 4 October 2018.[36]
[34] Exhibit R1, 40-43.
[35] Ibid, 44-58.
[36] Ibid, 61, 67, 71, 83, 93, 95, 126-127.
Mr Larkins’ submissions centre on the interests of two children, of whom he claims to be the biological father. He contends that the children and their mothers are indigenous members of the Yora Yora[37] nation covering Northern Victoria. He claims to be ‘on good terms’ with both former partners, but their new partners were ‘somewhat controlling.’ When asked why these women did not submit a statement or appear at the hearing given he was on good terms with them, Mr Larkins responded: ‘I can’t answer that.’ He opined later in cross-examination: ‘they can’t write me a letter because of their new relationships.’
[37] Applicant’s spelling during hearing.
Mr Larkins states: ‘I just wanna be there for my kids and be a positive role model to them and the community.’[38] He goes on to say:
…cancellation of the visa would make a big impact on my children and on my nephew and neices because I wont be there to see them grow up see them do good in there schooling be there to support them at sporting events it would effect them massively I have a close bond with all the children in my life most of them I see them on a daily basis as it is me being in jail is taking a toll on there life so this would possibly destroy any kind of relationship now and the near future with them.[39] (errors in original)
[38] Exhibit R1, 55.
[39] Ibid, 52.
In relation to his eldest biological child, Mr Larkins states in his written submissions:
I play a big role in my daughters life I was there when, [name redacted] was born. [name redacted] and I relationship is what any father would want there relationship to be with there daughter if not its probably even better than that she is my all my everything I see and speak to her on a regular basis and receive letters on a regular basis.[40] (errors in original)
[40] Ibid 54.
When asked why he only included details about the eldest child in his latest Personal Circumstances Form,[41] Mr Larkins said the youngest child’s birth post-dated his submission of that form. During his oral evidence, Mr Larkins provided details about the youngest child, [redacted], and the child’s mother, Ms [redacted]. He does not have birth certificates for either child. Following the hearing, in an email to the Tribunal on 17 February 2019, Mr Larkins advised that he had applied to obtain copies of the birth certificates of his children. However, as at the date of these reasons, no birth certificates have been lodged.
[41] Ibid, 47.
During the hearing, Mr Larkins stated he remembered signing ‘paperwork’ relating to child support requests from the mothers, which was in his possession. When the Tribunal noted that no such paperwork had been lodged, Mr Larkins undertook to provide it by email after accessing his personal papers. Following the hearing, on 12 and 17 February 2019, the Tribunal received a number of documents from Mr Larkins. These included a child support assessment dated 21 March 2018 for Mr Larkins’ eldest child covering the period to 20 June 2019.[42] He also lodged a copy of a document from the Department of Human Services dated 27 November 2017.[43] This document advises Mr Larkins that an application had been made to the Child Support Agency in respect of the younger child. Mr Larkins is asked to respond to the letter with certain information, including evidence of parentage, such as a ‘birth certificate, statutory declaration or court order.’ This document is dated some 15 months ago and does not support Mr Larkins’ claims about being the biological father of the younger child. A total of nine pages of notes and drawings from children were also provided, including one in which the name of Mr Larkins eldest child is legible.[44]
[42] Exhibit A4.
[43] Exhibit A5.
[44] Exhibit A6.
Mr Larkins said his two biological children currently reside with their respective mothers and stepfathers. He initially stated he did not know where the mothers lived, but later in cross-examination provided an address for one of the mothers. At the Tribunal’s request,
Mr Larkins said he would provide mobile telephone numbers for both mothers that day. He subsequently sent an email to the Tribunal on 12 February 2019 in which he advised: ‘ill be sending use phone numbers of my 2 childrens mothers tomorrow [sic]. It was not until 19 February 2019, however, that Mr Larkins emailed the Tribunal to advise that the mother of his eldest child had explicitly ruled out providing her number or giving any evidence. On the same day, a Galaxy Note screenshot was received by the Tribunal from a third party, with a message stating: ‘Hi this is [redacted younger child’s mother]. This is my number that you can contact me on at any time [number redacted] in regards to Ians case. I am happy to answer any questions you will have.’ The Tribunal reconvened the hearing by phone late on the afternoon of 19 February 2019 and made a number of attempts to contact the person claiming to be the mother of Mr Larkins’ younger child. No answer was received to those calls. The owner of the mobile service did not identify themselves prior to the message tone.
When asked during the hearing about the date he last had contact with the mothers of his children, Mr Larkins said it was three years ago in relation to the mother of his youngest child, and more recently for the other. Mr Larkins said there is no formal arrangement regarding access to his children, but the mothers ‘would have no problems’ with providing him access whenever he wants. When asked how he knew that to be the case given the lack of recent contact with at least one of his former partners, Mr Larkins said this was what she had previously told him and had since confirmed with his mother.
Mr Larkins claimed that when he was free in the community, he saw his eldest child every day. Although he was incarcerated when the youngest child was born in August 2017, he claimed to have seen that child on approximately 50 to 60 occasions. He stated that he had last seen both of his children on his birthday in October 2018 while detained at Maribyrnong Immigration Detention Centre. He claimed to currently speak to his eldest child two to three times per week, but speaks to the younger child less frequently because of the child’s age and inability to engage in a ‘proper conversation’. The telephone calls to his children were facilitated by Mr Larkins’ mother, who he said collected the children from their biological mothers.
In relation to his nieces and nephews Mr Larkins said he had seen them frequently when free in the community, but had only seen three of his nieces [names redacted] about ten times in the last eight years. He spoke to them by telephone approximately every two weeks. He named another niece and two other nephews that he had seen 20 to 30 times in the last eight years and claimed to speak to them frequently on the telephone.
Mr Larkins claims to ‘have been there’ for his children, despite spending approximately seven of the last eight years on remand, in prison or immigration detention. In response to further questions he claims to have ‘at least tried to keep contact with them.’ His principal fear is expressed as losing access to his children, nieces and nephews if returned to New Zealand. He submits that he has lived in Australia since he was eight, went to school here and knows no other home than Australia. He submits that although ‘on paper’ he has brothers, sisters and other family members in New Zealand, they would not accept him or be able to offer resettlement assistance.
During cross examination, Mr Larkins was taken through his criminal history. He agreed that many of his offences had been violent, submitting there were ‘no excuses’ for what he had done. He claims to have ‘moved along since then’ and has ‘learnt from [his] actions.’[45] Mr Larkins said he was young and often under the influence of alcohol or drugs at the time of his offending, or was influenced by bad associates from the area he grew up in.
He objected to the details of some offences put to him, claiming that in relation to a conviction for Assault in company at a skate park in September 2007, he ‘didn’t assault anyone.’ When asked whether he had kicked the victim in the face as alleged by police,[46] Mr Larkins stated he had only entered an ‘early guilty plea to get a youth justice order….I pleaded guilty to it, but what I got charged with and what happened are different.’ When asked if he had threatened to kill the victim, Mr Larkins agreed he had.[45] Exhibit R1, 83.
[46] Exhibit R2, 224.
Mr Larkins agreed he had participated in a random assault with an accomplice in November 2007, delivering multiple punches to the victim’s face, repeatedly kicking him when he was down, and producing a knife. In relation to Mr Larkins participation with his uncle and another co-accused in the robbery and assault of victims outside a Bendigo Bank ATM in May 2011,[47] Mr Larkins agreed the victim suffered serious injuries as a result of this assault and that Mr Larkins made off with the victim’s money. Mr Larkins disagreed with the police report, however, which claimed he had also assaulted bystanders from a nearby hotel who attempted to intervene and stop the assault.
Mr Larkins said it was his co-accused (an uncle) who had done so.[48][47] Ibid, 212.
[48] Ibid, 213.
In relation to other offences, Mr Larkins agreed he had acted aggressively towards police, had violently resisted attempts to arrest him in the past, and had tried to escape police custody. This included during one court attendance, where Mr Larkins said his escape attempt occurred ‘on impulse – on the spur of the moment.’ He was caught, arrested and subsequently pleaded guilty to assaulting police.
Mr Larkins agreed that he had committed offences while on parole and bail, or shortly after conditional liberty provisions had ceased. He agreed that after coming off youth parole in June 2012, he was arrested with a co-offender while committing a burglary in early December 2012. Mr Larkins was asked about being found by police wearing a balaclava and gloves, and with a blue jemmy bar, near the till of a restaurant. He maintained that he ‘didn’t steal no money’ and had only broken into the premises to look for ‘documents.’ When it was put to Mr Larkins that his explanations were ‘highly implausible,’ given the police report and subsequent convictions, he disagreed.
Mr Larkins agreed he was bailed after being arrested for the burglary charge and, while still on bail approximately three weeks later, committed armed robbery with his younger brother. Mr Larkins agreed that the attendant they robbed at the service station would have feared for her life after Mr Larkins produced a weapon during the robbery, despite it being an imitation firearm. Mr Larkins said he knew and had previously worked with the attendant, who was also a friend of his mother who worked at the same service station. Mr Larkins agreed he had initially denied involvement in the robbery to police, by providing a false and elaborate alibi.[49]
[49] Ibid, 242-243.
It was put to Mr Larkins that his claims about having learned the error of his ways was a repetitive feature of his evidence to the courts and to the Department, including after being advised in March 2014 about the possible cancellation of his visa.[50] When asked by the Tribunal why he didn’t consider the first cancellation of his visa to be a ‘last chance,’
Mr Larkins responded:
I did. Why do you think I ran away from police? I didn’t want to get caught. I pleaded guilty to get most of my charges under 12 months. I thought if I got under 12 months, I’d be able to get out and start afresh. But it didn’t work out like that.
[50] Exhibit R1, 128.
Mr Larkins attention was drawn to a letter he had written to the court relating to his armed robbery offence, in which he asked for a fresh start so he could be ‘the dad my daughter needs.’[51] When challenged that he had not changed his behaviour since then, Mr Larkins asserted that since that armed robbery he had not subsequently committed armed robbery or theft or ‘a thing since then.’ He also claimed to have apologised to the victim of his armed robbery, submitting that only a changed person would have gone to the trouble of apologising. When it was pointed out to Mr Larkins that he had committed further violent offences after the armed robbery, including while on remand on 28 September 2013,[52] he said he could not remember the incident being referred to. When his attention was drawn to convictions for Intentionally cause injury and Theft on 17 March 2014, he again maintained he could not remember the incident. After being taken specifically to the relevant records, Mr Larkins conceded that he and a group of men had entered another prisoner’s cell. Mr Larkins agreed he had assaulted the other inmate twice, stolen his running shoes and subsequently lied about his involvement when approached by the authorities. When asked if he continued to stand by his evidence that he ‘had not committed a thing’ since his armed robbery conviction, Mr Larkins withdrew that aspect of his oral evidence.
[51] Exhibit R2, 56.
[52] Ibid, 205.
Mr Larkins agreed that when his visa was first cancelled in June 2015, he made submissions to the Department about a desire to reform,[53] primarily because he feared separation from his child.[54] He remembered signing a notice after his first visa cancellation was revoked, to the effect that his visa might again be considered for cancellation if he reoffended.[55] Mr Larkins agreed that despite the potentially dire consequences for his visa status, he committed further offences, including drug-related offences approximately three weeks after his release from 15 months in immigration detention.[56]
[53] Exhibit R1, 99-155.
[54] Ibid, 135.
[55] Ibid, 156.
[56] These convictions were determined by the Shepparton County Court on 27 August 2018.
Mr Larkins contextualised the drug-related offences he was convicted of in August 2018 as ‘helping out a friend in need.’ He explained that although unlicensed, he had agreed to drive his friend Luke to Melbourne, so Luke could ‘sign on’ in respect of his bail conditions. Mr Larkins said he considered Luke like a brother. When asked, he stated that both he and Luke had used methylamphetamines before. When it was put to Mr Larkins that the police summary and reasons for sentence suggested his conduct was more than ‘helping a friend in need,’ Mr Larkins maintained that ‘he didn’t know it had anything to do with drugs’ and he ‘wasn’t doing nothing.’ It was put to Mr Larkins that he was not being truthful because the car in which he and his co-accused were travelling in had been specifically targeted as part of a major drug investigation into drug trafficking in North East Victoria.[57] Mr Larkins insisted he had no knowledge of or connection to the activities of his co-accused, or the $8475.00 in cash and drug paraphernalia seized by police. He said that he only had up to 10 unprescribed Oxycodeine tablets in his possession.
[57] Exhibit R2, 285-86.
Mr Larkins stated that while on remand and imprisoned for the armed robbery offence until June 2015, he had continued to take drugs like Buprenorphine Suboxone, which was not prescribed for him. While on bail more recently, Mr Larkins agreed he was involved in the dangerous driving and other offences for which he was convicted in April 2017. He agreed that after a dangerous pursuit, when police had boxed in the vehicle he was driving, he fled the scene on foot and was arrested three days later. When it was put to Mr Larkins that he was holding a large machete in a bathroom at the time of his arrest, he denied it. When referred to the sentencing remarks, which reflect agreement between the parties to a set of facts,[58] including that Mr Larkins was holding a large machete when arrested,[59] Mr Larkins maintained he was not. He said the machete ‘was found in the bathroom,’ and the police were ‘lying.’
[58] Exhibit R1, 23 [7]-[20].
[59] Ibid, 26 [21].
Mr Larkins agreed that his visa cancellation in June 2017 was the second time he had been put on notice about his ability to remain in Australia if he reoffended. Despite the dire consequences, he was convicted in November 2018 of assaulting another detainee while in immigration detention.[60] Mr Larkins agreed he had grabbed the victim’s chest, dragged him into a cell, and started hitting him. Mr Larkins denied, however, that he told the victim he would ‘come after’ the victim’s family.
[60] Exhibit R2, 147.
Mr Larkins was taken through a table of incidents purportedly documenting misconduct during his most recent period of immigration detention.[61] In relation to an incident of assault on 6 October 2018, in which Mr Larkins reportedly hit another detainee in the face several times, Mr Larkins said it was self-defence and the other person had hit him first. When asked about similar reports of an earlier altercation with another detainee during his immigration detention in 2015, Mr Larkins responded: ‘I can’t remember.’
He gave the same response about other reported incidents of abusive or aggressive behaviour, submitting there was no evidence to prove them. When asked about contraband reportedly found on a number of occasions in his room, including burnt foil that was suspected to be drug paraphernalia, Mr Larkins said it was not his and there were other detainees present in what was shared accommodation. Mr Larkins also denied that he had been disruptive in immigration detention, stating that many of the incident reports had been ‘made up’ by the authorities, who ‘can write anything.’ When asked by Mr Orchard to comment on the proposition that the assault convictions and other reported incidents in immigration detention suggested Mr Larkins had not shown a commitment to rehabilitation, Mr Larkins responded: ‘If that’s what you believe.’
[61] Exhibit R5.
Mr Larkins became agitated during the discussion about his conduct in immigration detention, asking why his past was being brought up ‘when that is not me now’. He said there was a difference between criminal convictions determined by a court and unproven allegations recorded by immigration authorities. In response to questions from the Tribunal, Mr Larkins agreed that his conduct during his first period of immigration detention was a ‘bit shaky.’ He concedes that he was argumentative with staff, but claims that apart from the one assault incident he admits occurred during his current immigration detention, his conduct has been better.
When asked why he didn’t just walk away from aggressive confrontations in immigration detention given the potentially dire consequences for his visa status, Mr Larkins claimed he had tried to walk away, but another detainee had ‘tried’ to hit him first. He explained that he struck the other person on impulse, after which the ‘officers came from everywhere.’ When asked by the Tribunal if it was the case that he could not resist the impulse to strike out on that occasion, Mr Larkins responded ‘pretty much.’
Mr Larkins repeatedly stated there was ‘no excuse’ for his offending, particularly after previously claiming he had learned his lesson; that he was sorry for past offending, and wanted to live a law-abiding life with close access to his children. He conceded that the interests of his children, however, have been insufficient in the past to prevent further recidivism.
When asked if there was any reason why he could not continue the relationships with the children in his life by telephone (from New Zealand), as had been the case for seven of the last eight years, Mr Larkins stated there was ‘no reason, but it’s not healthy.’ He agreed that these relationships had also been unhealthy in the past as a consequence of his frequent imprisonment or detention.
Mr Larkins submitted he has ‘changed a lot’ during his most recent imprisonment and immigration detention. He claimed to have overcome family troubles and associations with the ‘wrong crowd.’ When asked if these ‘family troubles’ might reoccur, Mr Larkins initially said no, but then submitted he could not definitively say he would ‘never ever…have family problems again.’ Mr Larkins referred to a new relationship he had commenced while in immigration detention in late 2018 with a woman from Melbourne, which he claims had provided him with additional support and stability.
When asked where he intended to reside if returned to the community, Mr Larkins said he would not return to Shepparton in order to avoid negative associations. He would instead seek a fresh start in Perth or Melbourne. He had no firm plans at this stage. When it was put to Mr Larkins that the fresh start he sought mirrored previous requests for a fresh start, he claimed to have changed considerably since those previous requests. In relation to the fresh start in Perth he was contemplating, Mr Larkins said his grandmother’s two sisters lived there, as did a cousin. When asked why he hadn’t previously taken up the option of a fresh start in Perth, Mr Larkins said his bad associations and the ‘old me’ had held him back. He claimed never to have previously ‘taken control,’ but now intends to. He said being away from his children ‘kills me,’ and acted as a strong motivator to change his ways. When it was put to Mr Larkins that a fresh start in Perth would impose significant geographical separation from his children who lived with their mothers and step-fathers in Shepparton, he said another option for resettlement was Melbourne. When it was put to Mr Larkins that his love for his children had not previously curbed his offending, he again claimed to be ‘a totally different person now.’
In relation to rehabilitation, Mr Larkins agreed he had only undertaken ‘short-term,’ three hour counselling sessions, but not the ‘fulltime drug and alcohol’ program or counselling supports recommended by the clinical and forensic psychologist in December 2013.[62] In response to questions about what treatment services he had completed most recently, Mr Larkins said he could not be specific, having lost all of his papers ‘while moving’ between prison and immigration detention. He claimed that because of the relatively short length of his sentences and limitations imposed on prisoners on remand, he had been unable to secure a long-term (3-month or 6-month) drug and alcohol course. It was put to Mr Larkins that some of his sentences were quite long, and after spending seven of the last eight years in prison or immigration detention, it was difficult to believe he had been unable to secure the targeted alcohol-drug rehabilitation program recommended for him. Mr Larkins maintained that his circumstances were such that he could not secure a place in the longer-term drug and alcohol programs. He maintained that he had fully engaged with the rehabilitative opportunities open to him and had not touched drugs in two years, which had been freely available to him had he wished. He agreed, however, that any rehabilitation achieved had not been tested in the community and that the only evidence about his abstinence from drugs and being a ‘slim risk’ of reoffending was his word.
[62] Exhibit R2, 86.
In response to questions from the Tribunal, Mr Larkins conceded that his submission about most of his offending occurring when he was a minor was factually incorrect. He agreed there was a close association between his offending and alcohol and drug abuse, which had remained unbroken during the past eight years. When asked by the Tribunal how his risk of reoffending could therefore be regarded as ‘very slim,’ Mr Larkins said that was because he had dealt with most of his problems and was a lot ‘calmer’ and ‘grown up’ now. While acknowledging that he had previously been non-compliant with prescribed medications, and that his illicit drug use had reduced the efficacy of those medications, Mr Larkins submitted: ‘I now know I need my medication – back then I didn’t think I needed my medication.’ He claimed to have previously been suffering ‘a chemical imbalance,’ which had now stabilised.
When asked why he hadn’t ticked the ‘Yes’ box in his latest Personal Circumstances Form to confirm his previous visa cancellation and warning from the Department,[63] Mr Larkins claimed it was an oversight. When again asked why he didn’t take the first visa cancellation / revocation process seriously, Mr Larkins stated ‘I wish I was the same person that I am now, back then.’ When asked why he had lied to the police and constructed an elaborate alibi after the armed robbery, Mr Larkins replied: ‘because I didn’t want to go to jail.’
[63] Exhibit R1, 55.
In relation to family in New Zealand, Mr Larkins agreed he had three siblings, around 10 aunts and uncles, and approximately 100 or more cousins.[64] While he could contact some relatives in New Zealand, he did not ‘know them’ like he knew his family in Australia. He stated: ‘you can’t just expect someone to show up at your door and ask for help.’ He maintained that he could not count on his New Zealand relatives for any support.
[64] Ibid, 135.
Medical evidence
No current medical evidence was lodged with the Tribunal by either party. During
Mr Larkins’ oral evidence, he referred to a general practitioner called ‘Dr Hussein’ and a psychiatrist called ‘Tracey,’ who he claimed had diagnosed him with Bipolar Disorder and Schizophrenia. When the Tribunal enquired about the availability of further details about these doctors or records supporting these diagnoses, Mr Larkins stated
‘I can get them.’ He undertook to provide the information by email later that day after consulting his records. He has not provided this information in the period since the hearing, despite an email reminder from the Tribunal.
The only expert medical evidence before the Tribunal is the pre-sentence report of clinical and forensic psychologist Ms Carla Lechner, dated 19 December 2013.[65] Drawing on
Ms Lechner’s report, the sentencing judge in 2014 elaborated on Mr Larkins’ ‘unstable childhood,’ noting that he had been expelled from his last primary school and every high school he attended because of ‘aggressive behaviour.’[66] As a child Mr Larkins was placed in the custody of his grandmother. The court described the relationship between Mr Larkins and his grandmother as ‘troubled,’ although he spent periods of time working with her as a fruit picker.[67] The court noted that Mr Larkins had also completed a year of an apprenticeship before abandoning it.
[65] Exhibit R2, 43-46.
[66] Ibid, 33 [4].
[67] Ibid.
In relation to Mr Larkins’ exposure to drugs, Ms Lechner noted this commenced at an early age, encompassing use of marijuana when Mr Larkins was 11, then progressing to other drugs like Xanax and ecstasy. The court noted that at the time of his armed robbery offence, Mr Larkins was abusing alcohol and consuming one to two grams of ice per day.[68] Mr Larkins also became a father at the age of 17, which Ms Lechner noted he had found to be a ‘stressful proposition’ and which he did not handle particularly well.[69]
[68] Ibid, 34 [7].
[69] Ibid, 34 [6].
Ms Lechner opined that Mr Larkins was ‘cognitively and emotionally immature,’ but ‘possessed a limited but growing ability to reflect on the impact of [his] behaviour on [himself] and upon others.’[70] A summary of Ms Lechner’s opinion is contained in the sentencing remarks, which found that Mr Larkins:
(a)was gaining better insight into the relationship between his substance abuse and offending;
(b)was easily overwhelmed by social and emotional factors;
(c)presented with a range of symptoms of major depression; and
(d)had no recollection of his offending (armed robbery) but expressed regret and shame for his actions.
[70] Ibid, 34 [9].
Ms Lechner’s report noted that Mr Larkins ‘tends to be impulsive in nature and to have a low tolerance for frustration.’[71] Mr Larkins was recorded as telling Ms Lechner that he feels angry ‘when people talk too much …when you know they’re lying, when people stare at me.’ He responded to such circumstances ‘in an aggressive manner,’ and understood that he ‘needs to learn to manage his angry impulses.’[72] Ms Lechner noted that Mr Larkins ‘has had a couple of incidents in prison that…led to him being “on regimes”.’[73] Her testing suggested that Mr Larkins is of ‘borderline / mildly disabled intelligence,’ but a comprehensive evaluation was required to better determine the extent of any deficit.[74]
[71] Ibid, 84.
[72] Ibid.
[73] Ibid.
[74] Ibid, 85.
Mr Larkins submitted that he suffers depression, anxiety, ‘bipolar and schizophrenia,’ but had no other health issues. As discussed earlier in these reasons, there is no expert evidence before the Tribunal to confirm the latter two diagnoses or any currently-prescribed medications. Mr Larkins agreed that his mental health conditions and the efficacy of medication taken for these conditions in the past has been adversely affected by his substance abuse. He claimed to have previously ‘self-medicated,’ but has been drug and alcohol free during his most recent imprisonment and immigration detention. He claimed to now have the ‘proper medication’ and intended to remain compliant in taking it.
Other evidence
Mr Larkins lodged ten letters, references and emails in support of his application. He called three witnesses who gave oral evidence and were cross-examined: his mother; his brother’s former partner; and the woman that he commenced a relationship with in late 2018. In considering references from family members and close friends, the Tribunal is mindful of the fact that they routinely provide the most positive perspective about an applicant’s conduct, whereas other members of Australian society might consider the same conduct unacceptable. Care must be taken about the weight placed on references from family members, friends, or those in a personal relationship with an applicant.
Evidence of Ms Katrina Larkins
Ms Katrina Larkins is Mr Larkins’ mother. She stated in her oral evidence that her son was incarcerated when his youngest child was born about 18 months ago. She tries to help her son maintain contact with his children by collecting them from his former partners’ houses and facilitating telephone calls with Mr Larkins. She claimed to have a good relationship with the older child’s mother, but had cut off contact with the younger child’s mother during the ‘last month or so’ due to unreliability in access arrangements and communication difficulties. She referred to the mother of the younger child as ‘a complicated lady’ whose new partner would only allow access under certain circumstances. Ms Larkins described future access arrangements with the younger child as ‘uncertain.’
Ms Larkins claimed that the justice system put people like her son into the streets without support and they had nothing else to do on release but to reoffend. She had seen this first hand with her former partner and other members of her family who had also been imprisoned. She had previously seen Mr Larkins as ‘an angry boy’ who used to scare her. But she had fought for him after the first visa cancellation and would do so again. She claims her son is ‘wanting to change’ but ‘needs alcohol and drug support, counselling, doctors, and work to be arranged.’ She submitted that ‘he can’t just go into society – it’s just like a big playground – he needs these things put into place.’ If he was put out into the ‘big playground,’ it would result in ‘wham bang thank you maam – they just lose it.’ When asked during cross-examination if, in the absence of a highly controlled and regimented environment, releasing her son into the community ‘would be a risk,’ Ms Larkins stated: ‘I can’t lie – it would be – there’s got to be something in place.’ Ms Larkins agreed that her son had received ‘several chances’ in the past, which he had not taken advantage of.
Evidence of Ms Jordan Pule
Ms Pule is the former partner of Mr Larkins’ younger brother, who was Mr Larkins’ co-offender in the 2013 armed robbery. She has a young child who is Mr Larkins’ nephew. In response to questions about Mr Larkins offending, she stated (incorrectly) that it was all drug-related. When asked about Mr Larkins’ relationship with her son, given that Mr Larkins had only spent one of the last eight years in the community and her son was four years old, Ms Pule said they had been together briefly, but spoke ‘a lot’ on the phone and enjoyed a ‘strong’ relationship.
Ms Pule submitted that Mr Larkins was now ready to change, having realised ‘he stuffed up real bad last time’ and that his two children needed him. He had family support in Shepparton but that was not a place ‘where he needs to be.’ He also had relatives in Perth and Queensland. When asked how Mr Larkins could achieve a fresh start in Perth or Queensland, while concurrently fulfilling his aspiration to be close to his biological children in Shepparton, Ms Pule responded: ‘I didn’t say he’d move to Perth or Queensland.’
Ms Pule thought Mr Larkins now had greater stability as a result of his new girlfriend
(Ms Jiarra Atkinson) and strong family support. She said if it became necessary she could text Mr Larkins’ former partners and help coordinate access arrangements for his children. Ms Pule stated, however, that she does not currently communicate with the mothers of Mr Larkins’ children.
Evidence of Ms Jiarra Atkinson
Ms Atkinson stated she has been in a relationship with Mr Larkins since 29 October 2018. She had not previously spoken to him while he was in jail, because he ‘had a relationship with another woman’ who ‘was his main source of support.’
In relation to the claim in her statement that she had ‘full knowledge of Mr Larkins previous charges,’ Ms Atkinson stated ‘we have spoken about them in depth’ but ‘a lot of them I have chosen not to listen to.’ When asked to specify some of the charges Mr Larkins had been convicted of, Ms Atkinson said she ‘would not be able to name them in depth.’ In response to further questions, she recalled a conversation with Mr Larkins ‘about an assault’ and stated: ‘there’s been other things he’s been accused of like possession.’ When asked if there was anything else, she replied ‘No.’ After further questions, when it became apparent that Ms Atkinson did not have ‘full knowledge’ of Mr Larkins’ offending as she contended, she asked to retract that part of her statement.
Ms Atkinson was asked about her evidence regarding Mr Larkins’ ‘co-parenting arrangements.’ She said her information was derived from Mr Larkins’ mother and not from her own personal observations or interactions with his former partners. In response to a question about how Mr Larkins could have been a ‘co-parent’ when he had spent seven of the last eight years in prison, on remand or immigration detention, Ms Atkinson stated that ‘maybe co-parenting was the wrong choice of words.’ Ms Atkinson said the lack of statements or other evidence from the mothers of Mr Larkins’ children was due to ‘a lack of communication between Ian and his ex-partners,’ which she hoped ‘will heal over time.’ Ms Atkinson said she was aware of the previous cancellation of Mr Larkins’ visa, but considered that his desire to re-join the community and not reoffend on this occasion was ‘bigger than the previous time.’ It is difficult to understand the basis of this submission given the relatively brief nature of Ms Atkinson’s relationship with Mr Larkins and the fact they were not together at the time of his first visa cancellation.
Ms Atkinson was asked if she stood by her statement that Mr Larkins is ‘a credit to the country…his two Koori kids’ and broader family. Ms Atkinson stated: ‘I think people change…I think it’s unfortunate he’s struggled with addictions…I think if you give anyone a chance, anyone can change.’
Given Ms Atkinson retracted an aspect of her statement during oral testimony, bases some of her evidence on the information of others, has a superficial knowledge at best of Mr Larkins’ convictions, has no personal knowledge of his previous relationships or parenting arrangements, and has only been in a relationship with Mr Larkins for approximately four months – during which he has been in immigration detention – the Tribunal places little weight on her evidence.
Other letters and emails
The other seven authors of the letters and emails lodged by Mr Larkins were not called to give oral evidence and could not be cross-examined. Two authors are purportedly Mr Larkins’ aunts. The others are purportedly his grandmother, a niece, a former partner of one of Mr Larkins’ close friends, and a person who claims Mr Larkins is not ‘a violent man’ and could work in his Melbourne kebab shop if released. All of the letters are general in nature and refer variously to the difficult upbringing Mr Larkins has experienced, the interests of his children, and the poor decision-making that has seen him repeatedly imprisoned. The letters submit that if given another chance, Mr Larkins would cherish his freedom and remain law-abiding. Most of this correspondence is unsigned, or undated, or in email form, or has no address or other contact details, or does not disclose a reliable understanding of Mr Larkins’ offending and specific circumstances. The provenance of a number of these emails and letters could not be established. Under these circumstances the Tribunal affords this material little weight.
STATUTORY FRAMEWORK
A person who is not an Australia citizen, and is in the migration zone while holding a visa that is in effect, is a ‘lawful non-citizen’ (s 13(1) of the Act). Any other non-citizen in the migration zone is an ‘unlawful non-citizen’ (s 14(1) of the Act).
Section 500(1)(ba) of the Act provides for applications to be made to the AAT if the Minister decides under s 501(CA)(4) not to revoke a visa cancellation decision.
Section 501 of the Act was amended in 2014 by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) (“the Amendment Act”) to introduce ss 501(3A) and 501(6)(e), amongst other amendments. The object of the statute of which s 501(3A) is a part, is to regulate, in the national interest, the presence in Australia of
non-citizens, and the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by the Act (ss 4(1) and 4(4)). As the High Court held in Falzon v Minister for Immigration and Border Protection (2018) 351 ALR 61 at [45]:
Section 501(3A) constitutes a legislative judgment that a class of persons identified by two features – offending and imprisonment – are not to remain in Australia. This is consistent with the object of the Migration Act, namely, to regulate the coming into and presence in Australia of non-citizens.
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), requires the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and the person is serving a full-time sentence of imprisonment.
The character test is defined at ss 501(6) – 501(12) of the Act and refers to a range of character matters that the Minister or their delegate may have regard to in deciding whether to refuse or cancel a visa (or revoke a mandatory cancellation of a visa). Section 501(6) of the Act provides that:
(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
…
Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record for the purposes of the character test, including if the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)).
Under s 501CA(3)(b), the Minister is required as soon as practicable after deciding to cancel a visa, to give notice of the decision to the person and invite them to make representations about the revocation of the original decision. Provisions relating to the form and process of those representations are regulated by reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) provides a discretion that the Minister may revoke the original cancellation decision if the person whose visa has been cancelled makes representations in accordance with the invitation, and the Minister is satisfied that the person passes the character test, or that there is another reason why the original decision should be revoked.
In conducting this review, the Tribunal is bound by s 499 of the Act to apply Ministerial Direction No. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (the Direction).[75]
[75] BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104 at [9] per Collier, Flick and Perry JJ. See also: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, per Katz J.
The terms of the Direction, including its objectives, general guidance, principles and other provisions are routinely published. [76] They need not be set out in detail.
[76] See, for example, Adut and Minister for Home Affairs, Re [2018] AATA 4089 at [17]-[22].
Paragraph 7(1)(b) of the Direction provides that the considerations in Part C must be taken into account in cases where a visa is mandatorily cancelled. If a person is found not to pass the character test, the three primary considerations at paragraph 13(2) of the Direction to be considered are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 14(1) of the Direction states that other considerations must also be taken into account, where relevant, in deciding whether to revoke the mandatory cancellation of a visa. These include but are not limited to:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
Paragraph 8(3) of the Direction states: ‘Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of a visa, or whether or not to revoke a mandatory cancellation of a visa.’ Paragraph 8(4) states: ‘Primary considerations should generally be given greater weight than the other considerations.’ Paragraph 8(5) states: ‘One or more primary considerations may outweigh other primary considerations.’ As held in Schuster-McFadyen v Minister for Immigration and Citizenship,[77] however, the Tribunal can give equal or greater weight to any consideration.
TRIBUNAL CONSIDERATION
[77] (2011) 124 ALD 68, per Tracey J at [32], who held that it is open to the Tribunal to conclude ‘that the “other considerations”… carry more weight than…adverse primary considerations.’
Does Mr Larkins pass the character test?
Because of the operation of s 501(6)(a) of the Act (substantial criminal record), on the basis of s 501(7)(c), Mr Larkins does not pass the character test. He was serving a sentence of full-time imprisonment for a criminal conviction when the power under
s 501(3A) of the Act to mandatorily cancel his visa was exercised. Under these circumstances, the Minister was required by law to cancel his visa.Issue to be resolved
Given that Mr Larkins does not pass the character test, he cannot rely on the provisions of section 501CA(4)(b)(i). The determinative issue, therefore, is if there is ‘another reason’ to revoke the mandatory cancellation of his visa (s 501CA(4)(b)(ii) of the Act). This involves an evaluative process consistent with the reasoning of North ACJ in Gaspar v Minister for Immigration and Border Protection,[78] which the Tribunal adopts:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked…
[78] (2016) 153 ALD 337 at [38].
Mr Larkins’ evidence
It must be said at the outset that Mr Larkins was an unimpressive witness, who at times provided implausible and unconvincing responses about his offending. That includes: his evidence in respect of the Aggravated burglary and Attempted theft of a restaurant in December 2012; his evidence about the circumstances of his arrest three days after evading police in the aftermath of a vehicle pursuit in February 2017; and his evidence about simply ‘helping a friend in need’ on 9 October 2016, which resulted in his August 2018 drug convictions. On other occasions the Tribunal found Mr Larkins evidence to be evasive, incomplete and self-serving.
Mr Larkins’ attempt to characterise ‘a lot’ of his offending as occurring when he was a minor, and that his ‘adult history’ is ‘short but serious’[79] is false and self-serving. The evidence shows that the significant majority of Mr Larkins’ offending occurred when he was an adult. He was almost 24 years of age when a previous cancellation of his visa was revoked. Despite the potentially dire consequences for his visa status, Mr Larkins continued to commit serious, violent offences. His attempts to contextualise his offending as occurring predominantly when he was a minor detract from his credibility.
[79] Exhibit R1, 61.
In a similar vein, Mr Larkins’ claim that he had a ‘bit of a tussle with police,’ which resulted from police aggression, understates his culpability. He attributes some of his offending to ‘suffering…a mental break down’[80] or to other serious psychological conditions, but without any supporting evidence. He has not followed through on his undertaking during the hearing to provide evidence he said was in his possession from a general practitioner and psychiatrist about the mental health conditions he currently claims. Mr Larkins repeated evidence about mixing with the ‘wrong crowd’[81] also seeks to dilute his own lead culpability at times, including his armed robbery conviction, where his younger brother was the co-offender.
[80] Ibid, 71.
[81] Ibid.
Mr Larkins’ inability to recall violent encounters in immigration detention or his characterisation of them as self-defence is unconvincing and at times inconsistent with the available records. The Tribunal makes no findings in this regard; it just notes the obvious inconsistencies. While Mr Larkins agrees that some incidents in immigration detention did occur, his claims to be ‘baffled’ by the extent of recorded incidents during his immigration detention is unconvincing. He alleges without any evidence that incident reports were ‘made up’ by detention officers who could ‘write anything.’
Mr Larkins’ lack of recollection or revisionist perspectives about incidents adverse to his application did not ring true, particularly in light of the clarity he displayed in respect of issues favouring his application. His version of events varied significantly at times from the records before the Tribunal, including findings of the courts and summonsed documents from police and detention centres. On occasion, Mr Larkins continued to maintain an implausible version of events despite irrefutable evidence to the contrary. The Tribunal considers that contemporaneous records in the G-documents are much more reliable than Mr Larkins’ undocumented recollections or his unsupported allegations that police have lied or that detention authorities have fabricated incident reports. That is particularly the case where Mr Larkins’ convictions are based on an agreed summary of facts tendered to the court, which is available to the Tribunal in the form of sentencing remarks or transcripts.
Mr Larkins claimed in his most recent Personal Circumstances Form, that he had not previously received a warning from the Department about the implications of any reoffending.[82] That is plainly false and the Tribunal does not accept his explanation that the omission was inadvertent. The relevant section of the form asks those who have previously received a warning from the Department to explain why they have reoffended. It is inconceivable, given what was at stake after a second visa cancellation, that Mr Larkins ticked the ‘No’ box and neglected to read the question that followed due to an oversight. The Tribunal considers it more likely that he intentionally omitted the information because it was contrary to his interests. The questionable quality of
Mr Larkins’ evidence supports a conclusion that he omits, or partially reveals information, or dissembles, or lies when it is to his advantage to do so. His performance as a witness, coupled with his convictions for dishonesty, and previously unfulfilled undertakings to the court and Department, provide an unreliable basis on which to accept him at his word.
PRIMARY CONSIDERATIONS
[82] Ibid, 55.
Protection of the Australian community from criminal or other serious conduct
Paragraph 13.1 of the Direction states:
(1) When considering protection of the Australian community, 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. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2) Decision-makers should also give consideration to:
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.
Paragraph 13.1.1(1) sets out factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date.
Decision-makers must have regard to factors including:a) The principle that, without limiting the range of offences that may be considered serious, violent and / or sexual crimes are viewed seriously;
b) The principle that crimes committed against vulnerable members of the community (such as minors, 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;
c) The sentence imposed by the courts for a crime or crimes;
d) The frequency of the non-citizen’s offending and 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 non-citizen is in Australia, that 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 is serious, as is an offence against section 197A of the Act;
The nature and seriousness of the conduct
Mr Larkins’ National Police Certificate, the available sentencing remarks, and other documents obtained under summons from police and the courts, disclose that much of his offending was violent and serious. In relation to any trend of increasing seriousness, the Tribunal finds that Mr Larkins’ initial convictions were for offences that were serious and violent,[83] and have continued to be so in subsequent years. It is of significant concern that Mr Larkins’ criminal offending covers the majority of his adult life, including while on remand, bail and in immigration detention. The Tribunal notes Mr Larkins has only been at complete liberty in the community for approximately one year since 1 January 2011.[84] He has committed crimes against government officials, including using a car to ram a police vehicle while an officer was inside.[85] The dangerous police pursuit he initiated just two years ago reflects a considerable escalation of danger to the public.
[83] Ibid, 17-18. Two charges of robbery, three charges of intentionally cause injury, two charges of resist police, and one charge of escape from lawful custody in June 2011.
[84] Written submissions from Mr Larkins lodged with the Tribunal on 6 February 2019, state that he has only been at liberty in the community on three occasions since 1 January 2011, totaling less than a year.
[85] Exhibit R2, 170.
The court regularly imposed a custodial sentence on Mr Larkins, which is at the top end of available sentencing options. His violent offending continued after Mr Larkins spent approximately 15 months in immigration detention following the first mandatory cancellation of his visa. On his own evidence, Mr Larkins responded to a previous revocation of his visa in September 2016[86] not by living a law-abiding life, but by continuing to reoffend and trying to avoid the consequences of that offending by running away from police and resisting arrest. He also claimed to have pleaded guilty to some charges rather than contest them in order to receive sentences of less than 12 months, which he thought would prevent a second visa cancellation. Mr Larkins’ conduct after both cancellations of his visa, coupled with the frequency and cumulative effect of his persistent criminal offending, does not inspire confidence about his insight, remorse and risk of recidivism.
[86] Exhibit R1, 154-155.
It can only be concluded from the evidence that Mr Larkins’ criminal offending is very serious and reflects a prolonged and reckless disregard for Australia’s laws and the safety of other community members.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 13.1.2 of the Direction states in part:
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle 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 that it may be repeated may be unacceptable.
(2)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).
If Mr Larkins continued to commit offences like armed robbery, intentionally cause injury, recklessly cause serious injury, assault, assault in company, resist police, possess controlled weapon, or dangerous driving while pursued by police, the nature of harm to members of the Australian community could include death or serious injury.
Asked to comment on his risk of reoffending, Mr Larkins stated that ‘anything can happen.’[87] He submitted it has taken him ‘till this day…to finally….wake up to myself,’[88] but that he is now ‘in the right state of mind’ to change. Mr Larkins contended that as a result of the changes in his life, he now constitutes a ‘very slim’[89] risk of reoffending and deserves another chance:
…all im praying and asking for is for use to see past my criminal history and see im not a threat to the community and im a changed man and all my wrongs are in the past…
[87] Ibid, 55.
[88] Ibid, 93.
[89] Ibid, 55.
Set against Mr Larkins’ equivocal assurances about living a law-abiding life in the future is the stark reality of his persistent adult criminal history since 2011. Much of his offending has a violent dimension but also encompasses dishonesty offences like theft, robbery, and burglary. On his own evidence, Mr Larkins agreed he has poor impulse control, which is of significant concern. This was highlighted by clinical and forensic psychologist Ms Lechner in 2013.[90] Mr Larkins demonstrated poor impulse control when trying to escape from police custody during a court appearance in 2011, by initiating a dangerous police pursuit in 2017, and when assaulting another detainee in 2018. This weighs against Mr Larkins assurances about his insight, rehabilitation and future risk of offending.
[90] Exhibit R2, 44.
The evidence shows that Mr Larkins’ commitments to the courts and the Department about living a law-abiding life[91] have consistently gone unfulfilled. In sentencing remarks, courts have consistently placed weight on his contrition, prospects for rehabilitation,[92] and the preventative factors he again relies upon in his current application. These factors have included: the interests of children in his life;[93] reliable accommodation; prospective employment;[94] and strong family support.[95] But the Tribunal is unable to draw any confidence from the specific circumstances of Mr Larkins’ case that these preventative factors would be any more effective if his latest visa cancellation is revoked. It is noteworthy that Mr Larkins agreed he committed further serious offences approximately three weeks after being released from 15 months of immigration detention following the first cancellation of his visa. Despite that fresh start, the heightened risk to his visa status if he reoffended, and the preventative factors he relied upon, he reoffended within weeks. That troubling record cuts across Mr Larkins’ current assurances that another prolonged period of imprisonment and immigration detention has renewed his motivation to live a law-abiding life. Mr Larkins acknowledged this in his own evidence, stating: ‘it sounds like im saying the same stuff.’ He contended, however, that on this occasion his apology has real meaning.[96] The Tribunal finds that very little weight can be placed on Mr Larkins’ latest expressions of contrition or his self-assessment that any future recidivism risk is ‘very slim.’
[91] Exhibit R1, 37 [23]. See also Exhibit R2, 56.
[92] Ibid, 36 [15]-[20].
[93] Ibid, 28 [5]-[7].
[94] Ibid, 28 [3]-[4].
[95] Ibid, 29 [4]-[5].
[96] Ibid, 71.
Mr Larkins stated that all of his offending ‘was under the influence of drugs or alcohol,’[97] which he has used since childhood.[98] In the past, the court has reflected on
Mr Larkins’ protracted struggle with illicit substances, commenting that this has compromised the efficacy of legal medication prescribed for him.[99] But contrary to Mr Larkins claims that his offending is always linked to drugs or alcohol, a relatively recent offence shows this not to be the case. He was convicted of unlawful assault of another detainee on 7 November 2018, which occurred during a period when Mr Larkins claims to have been drug and alcohol free. This is yet another example where Mr Larkins’ rhetoric is unmatched by his actions.[97] Ibid, 93.
[98] Ibid, 33 [2]; 34 [7].
[99] Ibid, 27 [29]; 34 [5].
In relation to rehabilitation, Mr Larkins’ submits that ‘cause [sic] of the short length of my sentence there are no courses that I could do to assist me. I have changed a lot now…’.[100] Despite being in prison or immigration detention for seven of the last eight years,
Mr Larkins is yet to complete the targeted drug and alcohol course considered necessary in 2013 by the clinical and forensic psychologist who examined him.[101] It may be that circumstances in prison and immigration detention have conspired to preclude his completion of that program, as he contends. The Tribunal notes that paragraph 13.1.2(2)(b) of the Direction, however, states that decisions should not be delayed in order for rehabilitative courses to be undertaken.
[100] Ibid, 55.
[101] Exhibit R2, 86 [5].
Given the evidence before the Tribunal, it is difficult to accept that Mr Larkins’ engagement with rehabilitative opportunities during prolonged periods of imprisonment or immigration detention have been substantial, or resulted in the profound changes he now claims. The Tribunal notes some evidence in respect of rehabilitation, comprising a number of 3-hour skills-based programs completed during imprisonment in 2013. These relate to Communications Skills, Problem Solving, and Conflict Management.[102] His screening interview for alcohol, tobacco and other drugs counselling with Primary Care Connect on 20 December 2012 is also noted,[103] as is his Certificate of Completion for the Work Planning and Life Skills Training Program completed on 25 September 2013.[104] Mr Larkins’ evidence is that he has completed other courses more recently, but has lost the certificates of completion during moves between prison and immigration detention.
[102] Ibid, 57-61.
[103] Ibid, 114.
[104] Ibid, 62.
The Tribunal is unconvinced that Mr Larkins has overcome his substance abuse problems, because he has ‘been clean for nearly two years.’ The Tribunal notes any abstinence from alcohol and drugs coincides with Mr Larkins’ latest imprisonment and immigration detention, rather than the relatively brief periods he has been at liberty in the community during the last eight years. Moreover, any self-directed alcohol and drug rehabilitation Mr Larkins claims is untested in the community. It is not possible to conclude that Mr Larkins has broken the nexus between drugs and offending, as he claims.
While it can be readily accepted that Mr Larkins suffered depression and anxiety at the time of his 2013 examination by a clinical and forensic psychologist, his functioning is not such that he does not have a full understanding of the seriousness and consequences of his prolonged criminal conduct. Moreover, any such conditions that have persisted or worsened over the years have clearly been aggravated by his persistent abuse of alcohol and drugs. While taking what limited evidence there is of Mr Larkins’ psychological conditions into account, the Tribunal finds that his criminal conduct is not excused or ameliorated by any such conditions.
Mr Larkins’ evidence gives rise to concerns about his actual levels of remorse and insight for past offending. His submissions about only constituting a ‘slim risk’ of reoffending in the future and renewed determination to live a law-abiding life are unconvincing when considered in the context of the whole of the material before the Tribunal. The Tribunal is particularly concerned about Mr Larkins’ casual indifference to the obligations placed upon him by the courts, the ‘impulses’ that have previously initiated escape attempts from the police or the assault of others, and his persistent tendency to reoffend while on conditional liberty or soon after being released from prison or immigration detention.
The evidence provides insufficient support for Mr Larkins’ contentions that his insight is fully developed, or that he is fully rehabilitated, or that he only constitutes a ‘slim risk’ of reoffending. The Tribunal finds that Mr Larkins constitutes an unacceptable risk of harm to the community and this primary consideration weighs strongly against revocation.
Best interests of minor children in Australia
Paragraph 13.2(1) of the Direction requires decision-makers to make a determination about whether revocation is, or is not, in the best interests of any minor children in Australia.
It is noteworthy that despite Mr Larkins’ submissions about being on good terms with both biological mothers of his two children, neither provided a statement or gave oral evidence at the hearing. Mr Larkins informed the Tribunal on 19 February 2019 during the resumed hearing that the eldest child’s mother had explicitly rejected providing any evidence. The message received by the Tribunal on 19 February 2019 from a third party, purportedly from the mother of Mr Larkins’ youngest child, did not answer when contacted on a number of occasions at the resumed hearing on 19 February 2019.
The available evidence contradicts Mr Larkins’ submission that he is on good terms with his former partners. While the Tribunal is satisfied that Mr Larkins is the biological father of the eldest child on the basis of child support documents, the same cannot be said about the younger child. There is no birth certificate or other reliable documentation. There is also no reliable evidence about the precise relationship Mr Larkins has with either of the biological children he claims, or any future access he may have, or any parental role he might play if released into the community. By any measure, Mr Larkins’ repetitive criminal conduct cuts across his submission that he aspires to be a role model for the children in his life. He has previously relied in the courts and in submissions to the Department on the interests of these children, but their interests have not prevented his recidivism.
The Tribunal notes that Mr Larkins was not present at the birth of the younger child and has not been physically present in the lives of either child for seven of the last eight years due to his imprisonment and immigration detention. There is no reliable evidence of parental access or care arrangements and the witness evidence reflects an informal arrangement at best between the mother of the eldest child and Mr Larkins’ mother to collect that child on occasions. Given Ms Larkins’ evidence, any previous arrangement that may have existed for the younger child has ceased and future access arrangements are currently ‘uncertain.’ Moreover, Mr Larkins states he has not talked to the purported mother of his younger child for some three years and intends to seek custody of the child if released into the community.
There is no evidence before the Tribunal in support of Mr Larkins’ submissions about the indigenous connection he claims for his former partners and biological children, who he says aremembers of the Yora Yora nation.[105] The Tribunal made enquiries after the hearing, but could only locate publicly-available references to the Yorta Yorta Nation.[106] In any event, this is not a material consideration in the present matter and the Tribunal refers to it only for completeness.
[105] Applicant’s spelling during hearing.
[106] >
In relation to nieces and nephews, the Tribunal notes that four of the letters / drawings provided by Mr Larkins following the hearing[107] refer to ‘uncle’ or ‘uncle Ian.’ A number of these refer to what appears to be Mr Larkins’ 25th Birthday. This would date the correspondence to approximately late 2017. Mr Larkins submits that when free in the community he saw his nieces and nephews very frequently, but now engages in these relationships almost exclusively by telephone and letter.
[107] Exhibit A6.
Mr Larkins’ written submissions about the relationship with his nieces and nephews are general in nature, encompass references to being a ‘good uncle,’ or ‘being there’ as an uncle they ‘can depend on,’ or seeing them on occasions, or engaging with them by telephone or letter.[108] It is not possible from the material before the Tribunal to distinguish the differential interests of Mr Larkins’ nieces and nephews.
When asked if there was any reason why he could not continue the relationships with the children in his life by telephone from New Zealand, as has been the case for seven of the last eight years,
Mr Larkins stated there was ‘no reason, but it’s not healthy.’ He agreed that the obverse of that position was that his relationships with these children had also been unhealthy in the past because of his protracted periods of imprisonment or detention.
[108] Exhibit R1, 53.
The Tribunal finds that Mr Larkins’ relationships with the children whose interests he relies upon have been characterised by long periods of absence and limited meaningful contact. On his own evidence, he has spent less than a year since January 2011 at liberty in the community. His past conduct does not inspire confidence that he will be a role model for these children in the future, as he contends. That is particularly so because previous contentions along similar lines to the courts and the Department have gone unfulfilled.[109]
[109] Ibid, 143. Mr Larkins stated in the context of his first visa cancellation that if returned to New Zealand, he would be ‘taken away from doing my responsibilities [sic] of being a father to my daughter.’
There is no evidence before the Tribunal that those who have played a parental role in the lives of the children whose interests Mr Larkins relies upon, have needed his contribution or have been in any way deficient in their responsibilities. Moreover, the views of the children he names, including some teenage children, are not before the Tribunal. There is also no evidence that these children would be unable to travel to New Zealand to see Mr Larkins in the future if he was returned there, or to continue their relationship with him by telephone or letter as is currently the case.
Mr Larkins aspiration to spend more time with the children in his life and to be a better father is admirable, but untested for anything other than brief periods since January 2011. But as the children Mr Larkins refers to become older, it is conceivable they may wish to have direct contact with him, which would clearly be more difficult if he was returned to New Zealand. Notwithstanding the dearth of evidence about the children Mr Larkins relies upon, it is more probable than not those who do have a relationship with him would be saddened by a decision not to revoke the cancellation of his visa. His relocation to New Zealand would likely complicate their ability to have a continuing relationship with him in the future, or reduce the quality of any relationship. Although this primary consideration weighs in favour of revocation, it only weighs slightly in Mr Larkins’ favour.
Expectations of the Australian community
Although community expectations are ultimately a matter of judgement for each
decision-maker, they turn on the specific circumstances of each case and must be able to be explained.[110] Paragraph 13.3(1) of the Direction states:The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
[110] Rabino and Minister for Immigration and Border Protection, Re [2016] AATA 999 at [60]-[72].
Regard must be had for the guidance at paragraph 6.2(1) of the Direction that:
…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.
Paragraph 6.3(5) of the Direction states that:
Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
Paragraph 6.3(7) of the Direction also refers to ‘The length of time a non-citizen has been making a positive contribution to the Australian community’ as a principle to be taken into account when applying relevant considerations.
Mr Larkins has resided in Australia since the age of eight, which the Tribunal has taken into account. Despite repeated imprisonment, immigration detention, rehabilitative opportunities, and chances for a fresh start, he has continued to commit violent criminal offences. He continued to offend after a previous visa cancellation was revoked and a formal warning issued in 2016. This was preceded by approximately
15 months in immigration detention, which clearly did not deliver the salutary lesson
Mr Larkins now claims has been learned from his most recent period of imprisonment and immigration detention. The consequences of his offending have imposed considerable costs on the community through the police, courts and other administrative processes. Significant public resources have been applied to Mr Larkins without any notable result, and his conduct has remained persistently inconsistent with reasonable community expectations. While the community would acknowledge Mr Larkins’ unstable childhood and the difficulties in his life, it would not consider this excuses his protracted and violent criminal offending. What limited contribution Mr Larkins has made to Australia since arriving here in 2000 would attract limited consideration by the community, given his extensive and violent criminal history.
While the Direction acknowledges the Australian community’s acceptance of some risk in relation to the conduct of non-citizens, depending on its seriousness, the community would not be sympathetic to Mr Larkins given the specific circumstances of his case. That is particularly so given that he has squandered the opportunity presented by the revocation of an earlier visa cancellation two-and-a-half years ago. The Tribunal concludes that the Australian community would expect the Minister to refuse to revoke the mandatory cancellation decision. This consideration weighs strongly against Mr Larkins.
OTHER CONSIDERATIONS
International non-refoulement obligations
Paragraph 14.1(1) of the Direction refers to a non-refoulement obligation as an obligation not to forcibly return, deport or expel a person to a place where they are at a risk of a specific type of harm. Paragraph 14.1 further provides:
(1) …
(2) The existence of a non-refoulement obligation does not preclude non- revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non- refoulement obligation exists.
(3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
(4) Where a non-citizen makes claims which may give rise to international non- refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
(5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them – sections 48A and 48B of the Act refer).
(6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
Mr Larkins has not made an application for a protection visa and is not a refugee. There is no evidence that he is at risk of any convention-related harm. His concerns about a return to New Zealand have a private quality that relates to losing easy contact with his children, relatives and friends in Australia. He states:
I will lose any kind of home being there for my children I am a family man and that’s all I care about.[111]
[111] Exhibit R1, 57.
In response to a question about what problems he would face if returned to New Zealand, Mr Larkins states:
Financial stress chances that if Im sent back I will have a mental break down and fall into old habits and I really don’t want to go back I just wanna move forward in life not backwards.[112]
[112] Ibid, 58.
Mr Larkins claims do not enliven consideration of Australia’s non-refoulement obligations and this consideration does not weigh in favour of or against revoking the cancellation of his visa.
Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction states:
… Reflecting the principles at 6.3, decision-makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non‑citizen has arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non‑citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Tribunal accepts that Mr Larkins arrived in Australia as a young boy and has since developed strong ties to members of his family in Australia and a network of friends – although he now disavows many of these associations as contributing factors to his recidivism. He left school before completing Year 7 and has rarely worked.[113] In his most recent Personal Circumstances Form the employment history section is blank.[114] The Tribunal notes some evidence of brief periods of work in 2010-11.[115] When asked to list any positive contribution he has made to the community, Mr Larkins submits it is ‘Being the father and uncle that my family and myself can look up to.’[116] However, the evidence before the Tribunal about any positive contribution through work or community involvement is very sparse. Mr Larkins has not been a positive role model. For example, his co-offender in the 2013 armed robbery was his younger brother who looked up to him. The Tribunal finds that any positive contribution by Mr Larkins is substantially outweighed by the costs and cumulative effects of his prolonged criminal history.
[113] Exhibit R2, 64.
[114] Exhibit R1, 56.
[115] Ibid, 149.
[116] Ibid, 56.
In relation to the possible fresh start in Perth that Mr Larkins is contemplating, he refers to his grandmother’s two sisters and a cousin who live in Perth as people who could assist his resettlement. An absence of evidence from these three people, however, means that the extent of any support for Mr Larkins in Perth could not be tested. Moreover, a potential move to Perth is at odds with Mr Larkins’ submissions that he wants close access to his children and to perhaps fight for custody of the younger child. When asked, Mr Larkins stated that Melbourne was also an option for resettlement. The best that can be said for Mr Larkins’ evidence is that his future plans for a potential return to the community are incomplete and do not reflect particularly strong or enduring ties to any Australian location. His ties to Shepparton are undoubtedly strong, but on his own evidence he intends severing those ties because of previous negative associations.
If Mr Larkins was returned to New Zealand, it would undoubtedly cause upset and sadness to members of his family in Australia. That is apparent from the evidence of Mr Larkins’ mother in particular, who has borne a heavy burden over the years. She clearly loves her son and wants to do what she can for him. A return to New Zealand would also impact Ms Atkinson, with whom Mr Larkins commenced a relationship in late 2018. The Tribunal has had regard for Ms Atkinson’s evidence that she and Mr Larkins are ‘best friends…[who]…support each other emotionally…[and]…have plans to grow together.’ Given this relationship is of relatively short duration, commenced while Mr Larkins was in immigration detention, and Mr Larkins remains uncertain about where he will geographically locate himself if released into the community, the Tribunal cannot place much weigh on the plans referred to by Ms Atkinson.
Consistent with the guidance at paragraph 14.2 of the Direction, less weight is placed on this consideration given that Mr Larkins’ offending began when he was still a child and has continued for the vast majority of his adult life. The Tribunal nevertheless finds this consideration weighs slightly in favour of revocation.
Impact on Australian business interests
Paragraph 14.3(1) of the Direction states:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence that Australian business interests will be affected by a decision not to revoke Mr Larkins’ visa cancellation. It follows that no weight is placed on this consideration.
Impact on victims
Paragraph 14.4(1), of the Direction states:
Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
There is no evidence from any victims of Mr Larkins’ offending regarding the Tribunal’s decision in this matter. It follows that no weight is placed on this consideration.
Extent of impediments if removed
Paragraph 14.5(1) of the Direction states that:
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.
Mr Larkins submits he has ‘no ties to New Zealand’[117] and all of his family are based in Melbourne.[118] The Tribunal does not accept that submission, noting evidence that Mr Larkins has close family members, including his step-father and siblings who live in New Zealand.[119] When questioned, Mr Larkins responded that he was estranged from his step-father, but agreed he has three siblings, around 10 aunts and uncles, and approximately 100 or more cousins in New Zealand.[120] He agreed he could contact some relatives, but did not ‘know them’ like he knew his family in Australia. He stated: ‘you can’t just expect someone to show up at your door and ask for help.’ He claimed not to have spoken to most of his relatives in New Zealand and believed they would not accept him or assist with his resettlement needs.
[117] Ibid, 42.
[118] Ibid, 95.
[119] Ibid, 50-51.
[120] Ibid, 135.
Mr Larkins is still a relatively young man at 26 and there is no language or cultural barrier to him being returned to New Zealand. Moreover, New Zealand is a developed state with strong institutional structures, and health and support services comparable to those of Australia. There is nothing in the evidence to suggest that Mr Larkins could not rely on the support available to any other New Zealand citizen for his needs, including any medical needs.
The Tribunal acknowledges that if Mr Larkins is returned to New Zealand he would have to re-establish himself, which would be difficult given he left there as a child. While it can be accepted his family relationships in New Zealand are not as strong as those in Australia, there is no evidence to suggest that more supportive family members in Australia could not remain in contact with him, or visit him, or otherwise support him from Australia should they wish. The Tribunal finds that this consideration nevertheless weighs slightly in favour of revoking the cancellation of Mr Larkins’ visa.
Other Considerations
No additional considerations were advanced by the parties and the Tribunal has not identified any additional ‘other considerations’ relevant to this case as provided for at paragraph 14 of the Direction.
CONCLUSION
Mr Larkins does not pass the character test. At the time his visa was cancelled, it was liable for mandatory cancellation under section 501(3A)(a)(i) of the Act. In determining whether the conditional discretion under section 501CA(4)(b)(ii) to revoke the mandatory cancellation of his visa should be exercised, the considerations at Part C of the Direction have been applied to the specific circumstances of his case.
It is accepted that Mr Larkins has some plans for the future. He aspires to break the nexus between his substance abuse and offending, to find work, to be a role model for the children in his life, and to become a law-abiding citizen. But similar aspirations have been largely unrealised in the past, despite being relied upon by Mr Larkins during his court appearances and in representations to immigration authorities. Mr Larkins has rarely worked during his time in Australia. He has not previously broken the link between his criminal offending and substance abuse. He has not been the role model he again aspires to become.
On the evidence before the Tribunal, Mr Larkins’ most recently stated aspirations are unpersuasive and untested in the community. The reasons he advances for his offending, such as alcohol and drug abuse, bad company and mental health problems, ring hollow. His evidence comes across as less than forthright and reflects a concerning lack of insight. The evidence discloses that Mr Larkins has spent seven of the last eight years on remand, in prison or in immigration detention. He has not taken full advantage of the rehabilitative opportunities made available to him over many years. It is of particular concern that the previous reversal of Mr Larkins’ visa cancellation in 2016, which was preceded by 15 months in immigration detention, was followed by further offending within weeks. His criminal offending has since continued.
The persistent nature of Mr Larkins’ violent offending, the potentially serious harm arising from any repetition of his criminal conduct, and the unpersuasive nature of his assurances about living a law-abiding life, weighs influentially against him. The harm he has caused to date, and the costs of dealing with the consequences of his criminal conduct, substantially outweighs any positive contribution he has made during the last 18 years. Mr Larkins constitutes an unacceptable risk of recidivism. Informed of the specific circumstances of his case, the Australian community would not expect him to hold a visa.
The influential weight of evidence supports a finding that there is not another reason why the decision to cancel Mr Larkins’ visa should be revoked. That is because the primary considerations of Protection of the Australian community and Expectations of the Australian community, substantially outweigh the Best interests of minor children in Australia and any other considerations weighing in favour of revocation.
DECISION
It follows that the Tribunal affirms the reviewable decision, being the decision
on
29 November 2018 not to revoke the cancellation of Mr Larkins’ visa.
I certify that the preceding 140 (one hundred and forty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC. .....................[sgd]...................................
Associate
Dated: 20 February 2019
Date of hearing:
11 February 2019 Applicant: By video Advocate for the Respondent Christopher Orchard Solicitors for the Respondent: Sparke Helmore Lawyers
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