LBND and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1621 (12 April 2021)
Division:GENERAL DIVISION
File Number:2021/0418
Re:LBND
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Member Andrew McLean Williams
Date of Decision: 12 April 2021
Date of Written Reasons: 4 June 2021
Place:Brisbane
The decision under review is affirmed.
.........................[SGD]..................................
Member Andrew McLean WilliamsCatchwords
MIGRATION – Non-revocation of mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass character test – whether there is another reason to revoke the mandatory cancellation decision – consideration and application of Ministerial Direction No 79 – decision under review is affirmed
Legislation
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
HZCP v Minister for immigration and Border Protection [2019] FCAFC 202
Khalil v Minister for Home Affairs [2019] FCAFC 151
Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666; [2009] AATA 47
Sam v Minister for Home Affairs [2019] AATA 35
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594SECONDARY MATERIAL
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Andrew McLean Williams
4 June 2021
INTRODUCTION
On 12 April 2021, the Tribunal gave its decision in this matter affirming the decision here under review. Now annexed hereto is a copy of that decision, marked as “Annexure A”.
In accordance with the principles outlined by the Full Federal Court in Khalil v Minister for Home Affairs [2019] FCAFC 151 (“Khalil”), the Tribunal now publishes the written Reasons for that decision. In Khalil, the Full Federal Court said:
“41. The AAT Act thus draws a clear distinction between the decision of the Tribunal under s 43 which is, relevantly, what causes the 84 day period to stop running, and the reasons for decision. In BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 the Tribunal had handed down a decision on a review of a decision of the Australian Securities Commission that was before it, confirming an exemption that the Commission had granted on certain conditions, but substituting different conditions. At the time of announcing the decision the Tribunal did not give any reasons. It delivered written reasons some 14 days later. Beaumont J held (at 271 273, Lockhart and Hill JJ agreeing at 253) that the Tribunal's omission to provide reasons at the time of announcing its decision was not an error, as on the proper construction of s 43(2) of the AAT Act, the Tribunal was only required it to give its reasons, oral or in writing, within a reasonable time of the decision.
…
48. What the Tribunal had to do here within the 84 days was to deliver a decision, not necessarily express reasons…”
[My underlining]
This is an application for review before the Tribunal of a decision by a delegate of the Respondent (‘the Minister’) dated 15 January 2021 by which a delegate of the Minister determined,[1] pursuant to subsection 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’) not to revoke a decision made on 18 February 2020 to cancel the Applicant’s Special Category (Class TY) (Subclass 444) visa (‘the visa’), under subsection 501(3A) of the Act (‘the non-revocation decision’).[2]
[1] Exhibit G1, G4.
[2] Exhibit G1, G11.
The Tribunal has jurisdiction to review the non-revocation decision, pursuant to s 500(1)(ba) of the Act.
The hearing of this application for review took place on 24 and 30 March 2021.
At the hearing, the Tribunal received direct oral evidence from the Applicant, as well as evidence by means of audio-visual link (‘AVL’) from his wife (RG), his sister-in-law (LPA), and his brother-in-law (PLA). The following further witnesses also gave evidence, by means of telephone:
·The Applicant’s younger brother (PG); and
·The Applicant’s brother-in-law (DT).
The Tribunal also received the written evidence that is now listed in the attached exhibit list, marked as “Annexure B” to these reasons.
FACTUAL BACKGROUND, and offending History
The Applicant (LBND) is a 35-year old New Zealand citizen of Samoan descent, who was born in Auckland.[3]
[3] Transcript 24 March 2021, page 7.
The Applicant has four sisters and three brothers, each also born in New Zealand, as well as a fifth sister, born after the arrival of the Applicant’s family in Australia. Relocation to Australia took place in about March 2000, shortly before the Applicant turned 14.[4]
[4] Transcript 24 March 2021, pages 8 and 9; Exhibit G1, s501G Documents, page 74.
Initially, the Applicant’s parents settled their family in Inala, Brisbane, where the Applicant was enrolled to resume his schooling at the Glenalla State High School. In either late 2001, or perhaps early in 2002, the Applicant’s father purchased a house at Ipswich, whereupon the family moved to Ipswich.[5] The Applicant was then enrolled at the Bremer State High School, where he completed his year 12 education in 2003.[6]
[5] Transcript 24 March 2021, pages 8 and 9.
[6] Transcript 24 March 2021, pages 9 and 10.
During high school, the Applicant began using cannabis. The Applicant explained that he would use the pocket money given to him by his unsuspecting parents in order to fund his drug use, thereby expending about $25 each week on cannabis, and that this was “Just for me, when I relax. I just have a little joint or something.” Over time, the Applicant’s cannabis use increased. Eventually, it became a daily habit.[7]
[7] Exhibit R2, page 284; Transcript page 15, lines 28 to 47; page 16, lines 1 and 2.
During his evidence before the Tribunal the Applicant admitted that his regular cannabis use continued, all the way up until the time of his eventual arrest on major drug charges, in early 2017.[8] Here, the Applicant’s evidence was that once he had joined the workforce, he would return home after work each day and then proceed to “get stoned”, with this persisting on a more or less daily basis, at least until the point when he and his wife started having children.[9]
[8] Transcript, page 16, lines 24 to 40.
[9] Transcript 24 March 2021, page 15, lines 38 to 44.
After the birth of his first child in November 2004, the Applicant’s regular cannabis use abated somewhat.[10] Now, the Applicant said that he would only use cannabis “just like every now and then. Weekend, Fridays, Saturdays and rest Sunday”.[11] In a rehabilitation needs assessment conducted by Queensland Corrective Services the Applicant reported “all of his friends were involved in drug abuse/use.”[12] At the hearing, the Applicant explained he would usually go to a friend’s house to smoke drugs, in that way keeping his ongoing drug use hidden from his wife.[13]
[10] Exhibit R2, page 284, Transcript 24 March 2021, page 16, lines 42 to 47; page 17, lines 1 and 2.
[11] Transcript 24 March 2021, page 16, lines 42 and 43.
[12] Exhibit R2, page 285.
[13] Transcript 24 March 2021, page 17.
Having completed high school in 2003, the Applicant commenced work as a factory hand in a meatworks. This job continued up until about 2005-6.[14] In conjunction, the Applicant also worked as a leading hand at a manufacturing facility, from 2004 until about 2012.[15] The Applicant explained that he often held multiple jobs simultaneously, as usually these were casual positions: “that’s why I keep jumping to other jobs”.[16]
[14] Exhibit A3, paragraph 6.
[15] Exhibit A3, paragraph 6; Transcript 24 March 2021, page 14.
[16] Transcript 24 March 2021, page 14.
In 2004, when aged 18, the Applicant met his now wife, RG, through their local church.[17] RG was also born in New Zealand and is similarly of Samoan descent. Unlike her husband who had arrived in Australia as a teenager, RG arrived in Australia in 1992, when she was still an infant.[18] In a letter to the Minister, RG details the beginnings of her relationship with the Applicant as follows:[19]
“It did not take long before [the Applicant] and I became the best of friends due to his caring personality, loving nature and great sense of humour. Being involved with every church activity that was presented helped our bond grow even more.”
[17] Transcript 24 March 2021, page 10.
[18] Transcript 24 March 2021, page 70.
[19] Exhibit G1, G18, page 132.
Despite early disapproval of the Applicant by RG’s family, their relationship developed quickly, as RG soon fell pregnant. In November 2004, RG gave birth to their first child, a boy, B1.[20] Thereafter, the Applicant and RG went on to have six more children: [21]
·KG, male, born June 2010;
·BG, male, born April 2011;
·EG, male, born March 2012;
·MG, female, born October 2013;
·LG, female, born March 2015; and
·NG, female, born February 2016.
[20] Transcript, page 20; Exhibit G1, G14, page 94, and G17, pages 125 to 131.
[21] Transcript, page 20; Exhibit G1, G14, page 94, and G17, pages 125 to 131.
On 26 August 2004, when aged 17, the Applicant made his first court appearance before the Magistrates Court at Ipswich for an offence of ‘stealing’ committed between 27 April 2004 and 7 May 2004.[22] When asked during cross-examination about this offence the Applicant explained as follows:[23]
[22] Exhibit G1, G33, Transcript 24 March 2021, page 11, lines 25
[23] Transcript 24 March 2021, page 11, lines 27 to 47; page 12, lines 1 to 15.
“Do you remember what that involved?---Yes. It was a phone.
Yes?---I picked up a phone and I took it home.
Right?---Because it was the first phone I ever touched. And then I started calling my mates, not knowing that it will come back to me. So it tracked back to me. So the coppers ended up charging me for it. And I ended up giving the phone back.
Okay?---Yes.
Is there - - -?---Yes, I picked it up. I didn’t, like, steal it or, you know.
Where did you pick it up?---It was on the ground and - it was on the grass in front of the yard - and I was walking home and I picked it up.
You picked it up and then you used it?---I used it, yes.
Right. Okay?---And then, yes, I gave it back the owner.
But you still got charged?---Yes, I pleaded guilty for stealing it.
Yes. And I think you had to do community service as a result of that?---Yes.
MEMBER: Do you appreciate by pleading guilty you basically admit that you stole it?---Yes. Yes.
All right? Once you plead guilty - - -?---I should have given it to – should 10 have taken it to the office, police station, or something. Yes. But – yes.
Did you tell the police that you’d found it? That you hadn’t stolen it, you just found it?---Yes.
But you still pleaded guilty to stealing it?---Yes.”
The Applicant was sentenced to serve 80 hours community service, as well as being ordered to pay $1,515.28 in restitution to the owner of the phone. No conviction was recorded.[24]
[24] Exhibit G1, G6, page 33.
In December 2004, the Applicant departed Australia along with his siblings and parents for one month,[25] in order to visit relatives in Samoa, before his grandfather in Samoa passed away.[26]
[25] Exhibit G1, G10, page 74.
[26] Transcript 24 March 2021, page 13.
In October 2006, the Applicant departed Australia again, this time for a period of 10 days to travel to New Zealand.[27] When asked about this trip, the Applicant explained:[28]
“Do you recall where you went on that occasion?---I went to my cousin’s unveiling in New Zealand.
And what’s that?---Because my cousin passed away, a year before that. That year was unveiling his tombstone, so I went there.
That was in New Zealand?---Yes.
Your cousin, who was that? Was that one of your - - - ?---Yes. He committed suicide. My mother’s cousin’s son.”
[27] Exhibit G1, G10, page 74.
[28] Transcript 24 March 2021, page 13, lines 41 to 47; page 14, lines 1 and 2.
In 2006, when aged 19, the Applicant recorded his first traffic offences, thus marking the commencement of what can only be described as an inauspicious driving history:[29]
·In March, for ‘learner licence holder ride motorbike under direction person not holder of an open licence for at least one year’, and
·In December, for ‘unlicenced driving’; ‘learner fail to display L plates’; and ‘learner drive vehicle without person with open licence seated beside driver’.
[29] Exhibit R2, page 41.
In relation to the March traffic offence, the Applicant acknowledged he had been charged and convicted of an offence involving a motorbike, yet denied having committed this offence, stating that he had never “ridden a motorbike before”’, and had “told them it wasn’t me. I wasn’t the person on that bike.”[30] The Applicant did not however dispute the facts of the December traffic offences.[31]
[30] Transcript 24 March 2021, page 24, lines 16 to 27.
[31] Transcript 24 March 2021, page 24, lines 35 to 42.
Methamphetamine addiction
In 2006, the Applicant’s eldest infant son, B1, was diagnosed with leukaemia.[32]
[32] Transcript 24 March 2021, page 14, lines 16 to 20; G18, page 132.
The Applicant explained that he commenced using methamphetamines shortly after B1’s diagnosis.[33] In a letter eventually drafted by the Applicant when seeking parole in relation to his most recent custodial sentence, the Applicant shared the difficulties he had experienced when attempting to cope with his son’s diagnosis and treatment:[34]
“The next 3 years was spent at the Children’s Hospital as B1 had specialised treatment. These medical procedures affected me and RG as we could not protect B1 and this made me feel completely useless. I was trying to be a strong father for B1 and a rock for RG and show the rest of my family I was coping and [they] did not need to worry about me at this time.
I can identify that this is the early stages of my downhill using meth as a way of escape. I was able to be everything for everybody and I no longer felt guilt for what was going on in my family.”
[33] Transcript 24 March 2021, page 18, lines 15 to 47; page 41, lines 1 to 13.
[34] Exhibit R2, page 212.
The Applicant also went on to describe the circumstances of his introduction to methamphetamine and the evolution of his methamphetamine abuse in that same letter:
“It had been an intense year with B1 becoming sick and I had a few puffs of the pipes and instantly felt relief and calm. However, I felt like a weight had been lifted of [sic] my back, I had energy and was thinking ahead and the next day I was able to achieve all of my commitments without much sleep.
I started using in a social setting, on the weekend and mid-week.”[35]
…/
“I then decided that having a few puffs in the morning was not hurting anybody. No body knew and I was able to go to work, complete the family and household commitments and spend maximum time at the hospital with B1.”[36]
[35] Exhibit R2, page 212.
[36] Exhibit R2, page 213.
Thus, by the time of the Applicant’s major offending in early 2017, the Applicant had already been using methamphetamine on a regular basis for close on ten years.[37] This, in parallel with the Applicant’s already admitted regular cannabis use.
[37] Transcript 24 March 2021, page 19, lines 5 to 22.
Similar to his method when using cannabis, the Applicant would go to a friend’s house in order to smoke the meth pipe, thus keeping it similarly hidden from his wife and wider family.[38]
[38] Transcript 24 March 2021, page 20, lines 1 to 7.
Despite the evidence contained in his letter to the Parole Board indicating an increase in methamphetamine use over time, the Applicant initially did not agree in his evidence when before the Tribunal that his methamphetamine use had escalated to the point of it becoming a daily habit, instead insisting that it was only ever “just, like, every now and then.”[39] Indeed, efforts like this - attempts to either downplay or to otherwise minimise the significance of his drug use - became something of a feature of the Applicant’s evidence when before the Tribunal. The Applicant was caught out on this, and on more than one occasion, during his cross‑examination. These instances ultimately did the assessment of the Applicant’s credit no favours.[40] Only after contrary prior reports regarding obviously more frequent drug use had been put to him would the Applicant eventually conceded the point.[41]
[39] Transcript 24 March 2021, page 19, lines 36 to 45.
[40] Exhibit R2, page 284, Transcript 24 March 2021, page 21, lines 20 to 26
[41] Transcript 24 March 2021, page 21, lines 34 to 36.
Further traffic offences were committed by the Applicant in 2007, including:[42]
·In February 2007, ‘learner fail to display L plates’ and ‘learner drive vehicle without a person with an open licence seated beside the driver’; and
·In March 2007, ‘exceed speed limit in speed zone by at least 13KMH not more 20KM/H’.
[42] Exhibit R2, page 40.
The Applicant’s evidence was that he did not remember getting a speeding ticket in 2007, however, he did not dispute the accuracy of the entry regarding same now entered on his driving history.[43]
[43] Transcript 24 March 2021, page 25, lines 45 and 46; page 25, lines 1 to 5.
In April 2007, the Applicant again visited New Zealand,[44] explaining that this was a 9-day trip taken to celebrate his 21st birthday, in Auckland.[45]
[44] Exhibit G1, G10, page 74.
[45] Transcript 24 March 2021, page 14, lines 5 to 15.
In August 2008, a number of further driving offences were committed by the Applicant, none of which he now disputes:[46]
·‘Drive while under 24 hour suspension’, ‘learner drive vehicle without person with open licence seated beside driver’, ‘learner fail to display L plates’ and ‘drive/attempt to put in motion or is in charge of motor vehicle under influence of liquor (<0.150)’.
[46] Transcript 24 March 2021, page 25, lines 14 to 21.
In April 2009, the Applicant and RG were married.[47]
[47] Exhibit G1, G18, page 132.
In October 2010, B1 lost his battle to leukaemia, aged five.[48] RG described their heartache and the Applicant’s response to the death of their son in these terms:[49]
“…we had to go through a heartbreak that I would never wish upon anyone. At just 5 years old, our beautiful son lost his long battle to cancer and we both knew that life for both of us was going to be a challenge. Throughout the whole process of adapting to the reality we had to live, [the Applicant] never ceased to put my needs before anyone else’s and especially his own. He took care of our 6-month-old son [KG] (at the time) and pushed his own grieving aside to make sure my health and well-being was looked after. That showed me more of the selfless being that my husband was and is still capable of being to this day. When he finally did breakdown for our lost angel, my heard broke all over again at the anguish and grief my husband felt.
….
There were times when the weight of the world rested heavily on my husband’s shoulders, from losing his job to losing a battle with his mentality that topped off with the passing of our son and the one sense of escape he used was being under the influence of drugs, Being of Pacific Islander descent, he felt there was no other sense of escape or help and made a silly teenage-minded decision by taking drugs and that addiction morphed into adulthood.”
[48] Transcript 24 March 2021, page 18, lines 11 and 12; Exhibit A3.
[49] Exhibit G1, G18, page 132 and 133.
In his evidence, the Applicant explained that life had already been a challenge, and the death of B1 had an enormous impact.[50] The Applicant explained that he could not cope with his son’s death, saying “ I went downhill, [and] turned to drugs as a coping mechanism.”[51] After the death of B1, the Applicant struggled to hold down steady employment, and the family fell into a period of financial hardship.[52]
[50] Exhibit A3, paragraph 13.
[51] Exhibit A3, paragraph 10.
[52] Exhibit A3, paragraph 19.
In 2011, a number of further traffic offences were committed by the Applicant in the period between April and August:[53]
·‘Exceed speed limit in speed zone by less than 13 KM/H’;
·‘Drive motor vehicle over general but not over high alcohol limit’;
·‘Learner drive vehicle under direction of a person not holder of an O type licence for at least one year’;
·‘Learner fail to display L plates at front & rear of motor vehicle’;
·‘Exceed speed limit in speed zone by at least 13 KM/H not more 20KM/H’;
·‘Unlicenced driving’.
[53] Exhibit R2, page 39.
When asked about these traffic offences, the Applicant stated he did not remember getting a speeding ticket in April, however, he did recall having been pulled over for speeding in June.[54] In relation to the drink driving, the Applicant sought to minimise his behaviour as something that arose only because he had been “just young and stupid”.[55]
[54] Transcript 24 March 2021, page 25, lines 42 to 44; page 26, lines 25 to 29.
[55] Transcript 24 March 2021, page 26, lines 13 to 23.
On 9 June 2011, the Applicant appeared in the Ipswich Magistrates Court for the offence of ‘contravene direction or requirement’.[56] This offence arose because the Applicant had failed to produce his learner driver licence when asked by the police.[57] During the hearing before the Tribunal, the Applicant indicated that he did not recall the incident.[58] The Applicant was convicted of the offence and fined.
[56] Exhibit G1, G6, page 33.
[57] Exhibit R2, page 91.
[58] Transcript 24 March 2021, page 29, lines 19 to 24.
In October 2011, the Applicant appeared in the Ipswich Magistrates Court again, for the further driving offence of ‘contravene order – identifying particulars (on 11/10/2011)’.[59] The circumstances of this offence arose after the police had given the Applicant a direction to attend at a police station to provide his licence particulars, which the Applicant then failed to do.[60] When asked about the incident during cross-examination, the Applicant advised he could not recall the event, stating “I can’t remember the police telling me to go to the police station to show my ID because I’ve always shown them. Every time they pull me over, I always give them my learner’s.”[61] A conviction was recorded, and the Applicant was fined.
[59] Exhibit G1, G6, page 32.
[60] Exhibit R2, page 97.
[61] Transcript 24 March 2021, page 30, lines 12 to 38.
In 2012, the following further traffic offences are recorded, none of which are now disputed by the Applicant:[62]
·Two counts of ‘disqualified driving’, and one count of ‘drive motor vehicle while passenger at least six months old but not older than 4 years old is unrestrained’.
[62] Exhibit R2, page 38; Transcript 24 March 2021, page 26, lines35 to 46; page 27, lines 1 to 6.
In July 2012, the Applicant appeared in the Ipswich Magistrates Court in relation to another offence of ‘contravene direction or requirement’ that had occurred in May 2012, for which a conviction was recorded and the Applicant was again fined.[63] The police report records the Applicant having failed to state his correct name when asked to do so by the police.[64] When asked before the Tribunal about this offence, the Applicant said he “could not recall” the incident, yet ultimately agreed that he had again been convicted of this offence.[65]
[63] Exhibit G1, G6, page 32.
[64] Exhibit R2, page 79.
[65] Transcript 24 March 2021, page 31, lines 7 to 31.
In October 2013, the Applicant had to leave his employment due to his employer relocating, and the Applicant having transport issues in consequence of his driving history, thus making it difficult to get to work at the new location.[66] A Queensland Corrective Services file note records that the applicant was still unemployed as at May 2014, although it further records that the Applicant was “actively seeking employment” and had engaged with an employment agency.[67] By this stage, the Applicant was relying on Newstart allowance to support himself and his family.[68]
[66] Exhibit R2, pages 119 to 120.
[67] Exhibit R2, page 120.
[68] Transcript 24 March 2021, page 23, lines 1 to 10; Exhibit R2, page 263.
In 2014, and despite these difficult financial circumstances, the Applicant was still using drugs. The Applicant was also still keeping that from his wife, despite RG by now suspecting that her husband may be using drugs. When RG would ask the Applicant about this he would often lie to her, although the Applicant also informed the Tribunal during the hearing that he would “sometimes” discuss his drug use with RG.[69] The Applicant also claimed before the Tribunal that he had recognised he had a problem with drugs before he was arrested and had “wanted to change”, but it wasn’t until he was arrested that he did in fact cease using drugs.[70] The Applicant gave evidence that he would speak to people at his church about his drug use, who apparently imparted the advice for him to “stop touching it”.[71] It appears on the evidence that this was the sole extent to which the Applicant had gone in an effort to address his drug use prior to his arrest in 2017, as he never sought any professional help for this prior to that.[72]
[69] Transcript 24 March 2021, pages 35 and 36.
[70] Transcript 24 March 2021, page 37, lines 30 to 34.
[71] Transcript 24 March 2021, page 37, lines 23 to 46; page 38, lines 1 to 16.
[72] Transcript 24 March 2021, page 38, line 7.
In January 2014, the Applicant was convicted of:
·‘Driving a motor vehicle while a passenger in his car under the age of four years was unrestrained’;
·’Driving while disqualified’; and
·‘Driving without displaying red P plates’.[73]
[73] Exhibit R2, pages 37 and 38.
During cross‑examination, the Applicant advised that eventually, “I learned my lesson. I ended up getting my full licence”. This was in April 2016, when the Applicant was 30 years old, [74] adding, “I just - I was pretty silly when I was younger. And I’ve grown older and that’s why I went, and I thought about my family, and I couldn’t afford to get pulled over again, so I went and got my full licence.” [75]
[74] Transcript 24 March 2021, page 27, lines 32 to 36; Exhibit R2, page 34.
[75] Transcript 24 March 2021, page 27, lines 44 to 46.
From 2014 to 2017, the Applicant secured employment as an industrial galvaniser.[76]
[76] Exhibit A3, paragraph 6.
On 24 August 2015, a domestic violence order (DVO) was made against the Applicant, with RG, and their children listed as the persons requiring protection.[77] The circumstances in which this DVO was made involved an incident that occurred earlier in August. A police report records the police attending the Applicant’s home after receiving information from the Applicant’s mother-in-law that the Applicant had punched RG in the face. The report further details that an argument started at the dinner table over feeding the children and one of the children’s homework. The Applicant started yelling at RG to “shut her mouth”. The report continues to outline the following:[78]
“He has grabbed her hair and pulled her head back. He has then slapped her face and proceeded to punch her left side of her face multiple times. [RG] covered her head for protection, whilst he kept hitting. He has then punched [RG] in the arm and walked away into the main bedroom still mad. When he was in there, he has picked up a child’s shoe and thrown it at [RG] hitting her in the back on the right side. He has then thrown another shoe hitting [RG] again. [The Applicant] has than walked out of the bedroom yelling and swearing. [The Applicant] has walked into the kitchen and has thrown food around the kitchen….Upon attendance Police observed the aggrieved to have bruising on her left eye and a large bump on her forehead…When police initially spoke with the aggrieved a child stated to police that daddy hit mum in the head and we were all crying...
The aggrieved stated to police that the respondent has previously hit her on multiple occasions, although this is the first time she has made a report to police.”
[77] Exhibit R2, page 4.
[78] Exhibit R2, pages 32 and 33.
When the Applicant was taken to this report under cross-examination, he appeared to agree with the summary of facts, expressing his remorse and confirming that he had been high on drugs, at the time:[79]
[79] Transcript 24 March 2021, page 39, lines 5 to 47; page 40, lines 1 to 4.
“Can you tell me does the summary at page 32 and 33, is that accurate?---It looks pretty – it sounds pretty bad but – on paper.
But that happened? You hit your wife and (indistinct) shoes at her?---Yes, like I pushed her away, but I know, like, when my wife gets angry, like, (indistinct). We just got into a disagreement and then, yes. That’s what happened.
But that happened? You hit your wife and (indistinct) shoes at her?---Yes, like I pushed her away, but I know, like, when my wife gets angry, like, (indistinct). We just got into a disagreement and then, yes. That’s what happened.
Do you remember - - -
MEMBER: In the police report your wife is called, ‘the aggrieved’?---Yes.
And the report says, ‘The aggrieved stated to police that the respondent’ - now that’s you?---Yes.
‘Has previously hit her on multiple occasions, although this is the first time she has made a report to police.’ Now, had you hit your wife on previous occasions, multiple times?---Like, I’ll push her away and stuff. But, yes.
MR McLAREN: But you accept at least on this occasion that you did?--- Yes.
Okay?---Just, yes.
Okay, and it seems like you weren’t ultimately the subject of charges in relation to that, but you don’t - well, you do agree that domestic violence occurred at least on this - sorry, that it occurred on this occasion?---Yes.
Okay?---And, like, it just brings back memories, every time, like, I hate myself. I can’t forgive myself for this
...
All right. So, in 2015 were you using drugs?---Yes.
All right.
MR McLAREN: Do you recall were you affected by drugs at the time?--- Yes.
You would have been affected by drugs?---Yes.
By methamphetamine (indistinct)?---Yes.”
During the hearing, RG was also asked about this incident and the summary was read out to her by Mr McLaren, for the Respondent. She agreed with the summary of facts, however specified that she did not recall saying that there had been other incidents of similar violence in the home, saying there had been “probably one or two” other instances of the Applicant shoving her, however ”this one was the worst”, and she had eventually asked the police to drop the matter.[80]
[80] Transcript 24 March 2021, page 73, lines 32 to 47; page 74, lines 1 and 2.
On 18 August 2016, the Applicant appeared in the Ipswich Magistrates Court, this time in relation to a number of offences that had occurred during a night out in Fortitude Valley. These offences included ‘drunk or disorderly in premises to which a permit/licence relates’, ‘fail to leave licensed premises’ and ‘common assault in public place while adversely affected by intoxicating substance’.
The facts of the offending that night are set out in a police report, which specify that the police were called to a nightclub at around 4:00am, where the Applicant was in the process of being restrained by security staff. Upon arrival, the police observed the Applicant to be “violently resisting on the floor with security”. The police then intervened, due to the aggressive nature of the Applicant. Earlier, the Applicant had been asked to leave the establishment due to his level of intoxication and aggressive behaviour, yet had failed to do so, and had then proceeded to slap a security guard, on the face. The police advised the Applicant that he was “under arrest for being disorderly on a licenced premises, Assault and refuse/resist eviction.” The report also indicated that CCTV footage confirmed the Applicant’s behaviour in the club to be “disorderly and violent”.[81]
[81] Exhibit R2, page 63.
The Applicant’s evidence was that he had been drinking well before going out in Fortitude Valley, and had continued to drink during the trip into Fortitude Valley, and “then I was at the [nightclub] VIP area, and that was the last – I woke up and I was in hospital, just the only memory I have of that. I don’t remember getting arrested or slapping the security guard.”[82] The Applicant went on to say that he did not deny the events described, explaining that “I was pretty out of it that night.”[83]
[82] Transcript 24 March 2021, page 40, lines 28 to 31.
[83] Transcript 24 March 2021, page 40, lines 35 and 36.
The Applicant was sentenced to 60 hours of community service for these offences, [84] including a condition that he “perform in a satisfactory way community service directed by an authorised corrective services officer; [i] for the number of hours stated in the Order and [ii] at the times directed by the officer.” A subsequent report regarding the Applicant’s performance whilst on community service indicates that the Applicant had a very poor attendance record, despite reminders and efforts at follow-up by Community Corrections staff, and even after the re‑assignment of the Applicant to another community service project to better facilitate the Applicant’s ability to attend community service. Given his poor compliance, the report recommended that the Applicant’s community service order be revoked, and that he be re-sentenced, for the original offences.[85] On 20 June 2017, the Applicant was convicted of ‘breach of community service order’. The original community service order was revoked and the Applicant was re-sentenced for his original offences relating to his night out in Fortitude Valley. The Applicant was then convicted, and this time fined.[86]
[84] Exhibit G1, G6, page 32.
[85] Exhibit R2, pages 57 and 58.
[86] Exhibit G1, G6, page 32.
Offences giving rise to the Applicant’s imprisonment
The Applicant’s most serious offending occurred in early January 2017. At that stage the Applicant had been unemployed for several months.[87]
[87] Transcript 24 March 2021, page 23, lines 20 to 46.
On the night of 20 January 2017, the Applicant participated in three home invasions, with the first of these at approximately 11:00pm. The Applicant and three other males - each of Pacific Islander descent - attended the first home, occupied by one male and one female resident. The factual circumstances surrounding this initial home invasion were particularised by the prosecution at the sentencing hearing as follows.[88]:
“There was a knock at the door. The complainant ran to the back of the house, and his female friend answered the door. One of the male persons asked “where is your mate?” and the complainant’s friend replied “I don’t know. In the toilet or the shower”. That female friend opened the door and walked outside. She went to another friend of hers who was up the road, and called the police. The complainant subsequently ran out the house through – through his back door. The four males, one of those being [the Applicant], walked inside the house through that open front door, they ransacked the complainant’s house, erased some of the CCTV footage, stole two pairs of Nike shoes, a portable hard drive and a bottle of perfume.”
[88] Exhibit G1, G8, page 54.
After leaving the first address the Applicant and his three associates then drove in a black Commodore to the second address, which was unoccupied at the time. The Applicant and his associates then entered these premises and ransacked a cupboard, pulling out clothes and other items. Eight ornamental swords that had been hanging throughout the second house were stolen, together with a number of glass bowls. When the owner arrived home, she found the front door to her home had been left wide open, and that all of the lights inside were on.[89]
[89] Exhibit G1, G8, page 54.
The four males then arrived at a third house, where the occupant and his girlfriend had also just arrived home. After hearing a knock on the door, the male occupant unlocked and opened the front door, however left the flyscreen door still closed and locked. Standing at the door were the four males, with the Applicant in the lead and by now holding a sawn-off shotgun, which he proceeded to press up against the flyscreen. The prosecution facts regarding what happened next are as follows:[90]
“He [the Applicant] told the complainant to “open the door and let us in”. The complainant asked “what’s going on?” to which the defendant said “you’ve got five seconds to let us in or I’ll shoot.” At that time, [the Applicant] had the gun in his hand. [the Applicant] then started to count down from five. Once the complainant heard Mr [the Applicant] say the number 2, he ran to the living room. Subsequently, the defendant [the Applicant] fired two shots, one after the other, through the front window. The projectiles travelled through the glass and into the blinds in the sunroom.
They hit the fridge in the kitchen, penetrating the outer layer. The complainant subsequently ran into the bathroom and found his girlfriend in there on the phone to the police. They waited there until the police arrived. The defendant [the Applicant] and the other males left without gaining access into the house. No items were stolen, and [neither] the complainant nor his girlfriend were injured.”
[90] Exhibit G1, G8, page 55.
On the morning of 21 January 2017, police located the black Commodore parked outside the address of one of the Applicant’s associates. Police then executed a search warrant. The applicant’s DNA was located on a drink bottle found inside the black Commodore and, on that same morning, police executed another search warrant, this time on the Applicant’s home. During the search of the Applicant’s home, police found one of the ornamental swords that had been stolen from the second residence on the prior evening. The Applicant was charged, and eventually appeared in the Toowoomba District Court in relation to the three home invasions.[91]
[91] Exhibit G1, G8, page 56.
In addition to the stolen sword, the police also located a replica handgun and “two (2) green and one (1) black bag in the cupboard. In these bags Police located thirteen (13) clip seal and vacuum-formed bags containing a white crystal substance along with two (2) bags containing a quantity of pink tablets”.[92]
[92] Exhibit R2, page 26.
These bags and their contents were taken for analysis. The white crystalline substance proved to be methylamphetamine, and the pink tablets were found to be methylenedioxymethamphetamine (MDMA).
The Police Court Brief records that “in total Police located 11.23 kilograms of a white crystal substance believed to be methylamphetamine. Police also weighed the pink tablets and confirmed that they weighted 612 grams. Police estimate that the street value for the drugs located at the defendant’s home address is in excess of $2,000,000.00 (2 million dollars – Australian).”[93] [Tribunal emphasis]
[93] Exhibit R2, page 27.
The Applicant was charged in relation to the drugs located in his home and later, in September 2017, was sentenced for these drug offences before the Queensland Supreme Court, at Brisbane.
When questioned about the home invasions and the drug possession offence during the Tribunal hearing, the Applicant proved to be evasive and gave what the Tribunal now assesses as deliberately non-responsive evidence. The Tribunal will outline the Applicant’s evidence below.
The Applicant largely accepted the facts as outlined in the Police Court Brief in relation to the first and second home invasion, however, said that he “could not remember” his being involved in erasing the CCTV footage, and nor could he reveal who.[94] The reason he gave for attending the second home was “because they owed a bit of money, yes”. For drugs?--- “Yes.”[95] While the Applicant did not dispute the summary of facts of the first two home invasions, a number of inconsistencies arose in his evidence regarding the circumstances surrounding the particulars of the third home invasion.
[94] Transcript 24 March 2021, page 42, lines 37 to 47; page 43, lines 1 to 6.
[95] Transcript 24 March 2021, page 43, lines 20 to 22.
In relation to the third home invasion, the Applicant changed his version of events as to the holding and firing of the sawn-off shotgun.[96] Initially, the Applicant’s evidence was that he had the shotgun, counted down for five seconds and said “let us in”. The Applicant however then said that he did not fire the shotgun into the house.[97] Although the Applicant admitted to his pleading guilty to the offence, he said the reason for pleading guilty had been “because I was already charged with all the other stuff my lawyer said I might as well take--- Well, why would you ‘might as well’ take the - - - ?---I might as well - I pled guilty for this one, I might as well do time because I’m already doing time.”[98]
[96] Transcript 24 March 2021, page 43, lines 25 to 47.
[97] Transcript 24 March 2021, page 43, lines 28 to 32.
[98] Transcript 24 March 2021, page 43, lines 38 to 43.
After further questioning however, the Applicant finally admitted that he had produced and fired the gun:[99]
“MEMBER: Who produced the gun? Who got the gun out of the car?---I was - do I have to say it?
Yes, you do?---I got it out.
All right, you got it out. You were carrying the gun?---Yes.
And, you fired the gun?---Yes. All right, which is what you’ve pleaded guilty to previously?---Yes.
Before, when you told the tribunal - - - ?---Yes.
- - - that it wasn’t me, someone else fired the gun, that was lie, wasn’t it? That was a lie wasn’t it, Mr [the Applicant]?---Yes.”
[99] Transcript, 24 March 2021, page 53, lines 18 to 32.
Further inconsistencies arose in relation to the intentionality of the home invasions. At first, the Applicant accepted that each home had been targeted.[100] When the Respondent raised the fact that one of the victims had seen the Applicant’s black Commodore driving by their home on two occasions in the week prior to the home invasion, the Applicant agreed that he had been one of the people in the car on those prior occasions.[101] However later, the Applicant said that the night of 20 January 2017, had been his first time near that address.[102] Later on during his evidence the Applicant’s story changed further, and he said that he “just got picked up” and “we were just drinking. Drinking and just high and we thought we were getting paid”,[103] inferring a degree of spontaneity to the offending. The Respondent put it to the Applicant that he had previously accepted that he had attended one of the residences multiple times and that the home invasion had been planned. The Applicant denied this, maintaining that “that was my first time being there”, yet agreed that one of the other three men had driven his car to the address prior to the home invasions.[104]
[100] Transcript 24 March 2021, page 44, lines 44 and 45.
[101] Transcript 24 March 2021, page 50, lines 16 to 41.
[102] Transcript 24 March 2021, page 52, lines 22 to 27.
[103] Transcript 24 March 2021, page 51, lines 33 to 42.
[104] Transcript 24 March 2021, page 52, lines 22 to 30.
As to the identity of his co-offenders, the Applicant remained entirely evasive, demonstrating a clear unwillingness to provide that information:[105]
[105] Transcript 24 March 2021, page 45, lines 1 to 19.
“And can I ask how did this come about? So who were your co-offenders?--- I’m not too sure.
Well, you do know who they were?---No.
Well, you do and I can tell you what their names were. Who was [name redacted]?---Just another person.
And who was [name redacted]?---(No audible response).
Well, [the Applicant], can I put it to you it’s actually really difficult to accept that you don’t know who these people were?---Yes, I know them but I don’t know them - like, they’re not my mates.
Well, I’m not asking whether you know them now?---Yes.
But you knew them at the time; right?---Yes.
And who was the fourth person?---I’m not too sure. I can’t remember.”
[Tribunal redactions]
When asked again about who the co-offenders were and how he came to be working with them, the Applicant ultimately said “just all mates. Just all people that I used to know” and that “they’re not mates anymore, but.”[106]
[106] Transcript 24 March 2021, page 51, lines 20 to 24.
It became apparent on the evidence that these home invasions were targeted matters and had arisen in response to people owing money for drugs.[107] Here, the Applicant initially agreed that the victims of the home invasions had owed him money for drug debts.[108] However, the Applicant also denied selling drugs, and, when asked how the victims came to owe him money, his evidence became that he “could not remember”.[109] When further questioned regarding the context in which this offending had transpired, the following exchange took place:[110]
[107] Transcript 24 March 2021, page 44, lines 38 to 45; page 45, line 24.
[108] Transcript 24 March 2021, page 45, line 26.
[109] Transcript 24 March 2021, page 45, page 28 to 34.
[110] Transcript 24 March 2021, pages 45 to 50.
“Mr [the Applicant], so they owed money for drugs, they must have owed that money to somebody; who did they owe the money to?---I don’t know. I didn’t even known him.
So you thought nothing of going and doing violent home invasions with other people - - - ?---Yes, I just got offered some money and then - - -
MEMBER: Were you enforcing someone else’s drug debt?---Yes.
MR McLAREN: Who was that?---I don’t know. Well, who engaged you to do this?---I don’t even know.
Mr [the Applicant], I put it to you that that’s a lie and that you did know who had engaged you to do it; who was it?---I don’t know.
Mr [the Applicant], it’s not to your credit to not be frank and honest with the tribunal in terms of what you’re being asked. It’s really important, you’ve taken an oath, and these are legitimate questions for the tribunal ‘s consideration in this case. Who had engaged you to undertake this?---I don’t know even know him. I didn’t even know the person.
Well, let’s go back. How did it come about? So you and three other men?--- Yes.
Go and do a number of home invasions in [sic] this particular night?---Yes.
And you’re saying it was to enforce a drug debts that were owed by other people?---Yes.
Right?---Yes.
Sorry, drug debts owed to another person or people; is that right?---M’mm.
So how did you become to be involved in this?---They asked me if I wanted some money.
And who was that?---I don’t know who he is.
Well, how did - - - ?---I just got a text and then that was it (indistinct).
MEMBER: How much money were you offered?---Only a couple of grand.
MR McLAREN: So you get a text - - - ?---But I didn’t get paid for it.
MEMBER: But you were offered it?---Yes, I got offered it and then I went to do that that night and then I got arrested the next day and that was it.
MR McLAREN: Well, can I ask you why I’m finding this a bit difficult to understand, Mr [the Applicant], is in your parole application that you signed, this is at page 213, your parole application was signed - or that you provided which I think is dated - well, it doesn’t seem to have a date on it but I think it’s from last year, six months or so ago; right?---Yes.
Page 213 you’ve got the heading, ‘Part 2: Events leading to myself being raided by the police’:
Personal stress of every day commitments added to the ever-increasing pressure I was under this led to me ultimately being involved the break and enter offences. The victims were known to me and we had tension building for a substantial time. The stress of everything came to ahead that resulted in me going to the victim’s home and finally confronting them over their actions and behaviour
What does that mean? How is that at all reconcilable with what you’ve just said about enforcing drug debts?---I just didn’t think at that time, you know, I wasn’t thinking because I was too high on drugs and - - -
My question is how did you come to be involved in the offending?---That’s it. What, you got a text message?---Yes.
But how does that - - - ?---I don’t know who it was.
MEMBER: Was it your drug dealer?---Hey?
Was it your drug supplier or dealer?---I just get offered the money and then that was it.
MR McLAREN: But offered the money by who?---I don’t know. I don’t know the person.
So you get a text message from somebody you don’t know?---Yes.
Saying, ‘I’m going to give you $2000 if you go and do home invasions’?--- Yes.
If you go and enforce a drug debt?---Yes. You don’t know who that person is?---No.
But you just go and do it anyway and somewhere along the line there’s another three blokes that you pick up you all go together?---Yes.
Is that how it happens?---Yes.
How can you say you knew who the victims were and you had tension building and that you confronted them over their actions and behaviour when you’re saying, ‘Actually, out of the blue I was told that I had to go and enforce drug debts against these people’?---(No audible response).
I mean, they can’t be reconciled; can they?---(No audible response).
MEMBER: Did these people owe the money to you personally?---Yes, they owed it to me. That’s why I went to go get it back, you know.
MR McLAREN: But why did they owe you money?---Hey?
Why did they owe you money?---Because I gave them stuff, they wanted some stuff.
MEMBER: When you say ‘stuff’; do you mean drugs?---Yes.
All right, so you were selling drugs?---Yes.
MR McLAREN: And on whose behalf were you selling drugs?---I don’t know.
…
Mr [the Applicant], it’s not optional to answer or not answer these questions. These are, with respect, legitimate questions that I’m entitled to ask you. Why don’t we go back to the start and let’s - - - ?---Look, I don’t want to think about that, you know. I don’t want to talk about it because - - -
MEMBER: Mr [the Applicant], I’m going to give you a direction to answer the question?---Yes.
All right. Now, you must answer the questions and you’re here under oath. You’ve given an oath to God on the Bible to tell the truth?---Yes.
Now, you must answer the questions. These are legitimate questions and I require you to answer them?---But I’m telling you I don’t even know who the person is.
MR McLAREN: Well, you’ve just said (indistinct) and you’ve already two inconsistent explanations about how it came that you were seeking to enforce this drug debt. On the one hand you’ve said, ‘I got a text from somebody go and do this and do it’ and then you more recently have said, ‘Actually it was my own, I was chasing the debt down for myself’?---Yes.
Which of those is true?---(No audible response).
MEMBER: Was it your debt or someone else’s debt?---It was someone else’s.
All right. So when you said to me before it was your own debt; that was not true?---Yes.
So it’s somebody else’s debt so that would be consistent with you get a text message offering to pay you money to go and enforce the debt?---Yes.
Was that person your drug supplier?---Yes, but I didn’t even know him.
Who was your drug supplier? What was his name?---I don’t know. I was just only holding it for someone.
The drugs that you were using; who was supplying to you?---I’m not too sure.
Where did you get the drugs from?---I don’t even know.
All right.
MR McLAREN: So what you’ve told the Parole Board that you knew the victims and had a tension building and you confronted them over their actions and behaviour?---Yes.
Is that meaningless? Was that untrue?---Yes.
…
Okay. Well, if you’re sorry about that you should be frank and truthful in terms of explaining what happened?---I just - I don’t know.
You’d gone to at least one of the homes previously; hadn’t you?---I pleaded guilty on this so it’s all mine, you know. I already pleaded guilty.
Mr [the Applicant], I’m asking you questions to try to understand the circumstances around the (indistinct), it’s important to - - - ?---I wanted money, you know. I wanted money to feed my kids so I took it.
Yes, okay. (Indistinct) think that you said that elsewhere that you were in financial stress at the time or struggled financially?---Yes.
And why were you struggling financially? I think you said you lost your job at the time?---Yes.
You said you were you using drugs more at that time?---Yes.”
RG’s evidence corresponded with her husband’s version. In response to a question regarding whether they had discussed the reason for the Applicant’s drug offences, RG said they had, and she said that “at the time he just said that he needed the money. He- he was sick of seeing my kids struggling.”[111]
[111] Transcript 24 March 2021, page 76, lines 20 to 27.
Similarly, the Applicant appeared reluctant to proffer the context regarding how it was that he knew the victims; admitting that he knew them but, to begin with, couldn’t say how they were known to him, simply stating it was “just through other people”. Eventually, when asked if they were drug acquaintances, the Applicant gave evidence that they were.[112]
[112] Transcript 24 March 2021, page 54, lines 6 to 14.
The Applicant’s evidence regarding how such a large quantity of illegal drugs had come to be in his possession was equally vague and evasive. After much questioning, the following was eventually elicited:[113]
·He was holding the drugs for someone that he could not name, saying they were “some random that I met”.[114]
·The unknown person’s “driver or something” dropped off the dangerous drugs (valued at $2 million) to the Applicant’s home after the Applicant had provided his address by text message.[115]
·He couldn’t remember when the drugs were delivered, however said he was only holding the drugs for one day, later saying “It was only meant to be like, a day or a couple of days”.[116]
·After receiving the drugs, the Applicant was told to wait for a text message for someone to pick up the drugs.
·He expected to receive $1,500-$2,000 in exchange for holding the drugs.
·The person for which he was collecting the drug debts and holding onto the dangerous drugs was the same person. He couldn’t not identify this person, and said he “only knew them through text messages”.
·When it was put to the Applicant that the evidence just given gave rise to the impression that he was a drug dealer, or was otherwise involved in drug trafficking, the Applicant denied this.[117]
[113] Transcript 24 March 2021, pages 54 to 59.
[114] Transcript 24 March 2021, page 54, lines 22 and 23.
[115] Transcript 24 March 2021, page 55, lines 30 to 38.
[116] Transcript 24 March 2021, page 58, lines 1 to 6.
[117] Transcript 24 March 2021, page 56, lines 14 to 24.
On 22 September 2017, the Applicant appeared in the Queensland Supreme Court in Brisbane, charged as follows:[118]
·‘Possessing dangerous drugs schedule 1 drug quantity of or exceeding schedule 4’, for which the Applicant was convicted and sentenced to nine years and 10 months imprisonment; and
·‘Possessing dangerous drugs schedule 1, drug quantity of or exceeding schedule 3 but less than schedule 4’, for which the Applicant was convicted and sentenced five years imprisonment.
[118] Exhibit G1, G6, page 32.
Incidents in custody
Whilst in custody, Queensland Corrective Service Commission file notes pertaining to the Applicant reveal that there have also been a number of behavioural incidents involving the Applicant:
·On 24 July 2017, the Applicant was involved in an incident where he was insolent, argumentative, and non-compliant with his prison work requirements. As a consequence, the Applicant was removed from the work unit.[119] The Applicant’s evidence regarding this incident was that he “got a T-shirt - they gave me a T-shirt and there was already writing on the back and I was just sitting there in and he just comes in and told me that I graffitied my back of the T-shirt and I tried to tell him that it was already there. But he still reckons that I did it.”[120]
·On 9 August 2017, the Applicant and another prisoner were recorded as having assaulting a third prisoner, thus causing multiple facial fractures.[121] The Applicant said he recalled the incident, agreed with the summary in the file note and, in response to a question as to why he had assaulted the other prisoner, said “we just got into a disagreement.”[122]
·On 10 August 2017, the Applicant was involved in another fighting incident in the prison exercising yard.[123] The Applicant again agreed that the file note was accurate.[124]
·On 12 August 2017, the Applicant had been on a phone call with RG, who was reported to be emotional and crying. When asked to conclude the call, the Applicant refused, and would not return the handset to the correctional officer.[125] The Applicant indicated that he could not recall this incident.[126]
·On 15 November 2018, a file note records the Applicant as having made “threats against staff”. The file note details that the Applicant had approached a correctional officer and had offered a sum of $3,000 to the officer to bring prohibited items into the correctional centre. When the officer declined, the Applicant then asked the officer a question regarding the identity of his wife and family, thus intimating that the Applicant had personal knowledge of their identities. The correctional officer inferred this to be a veiled threat.[127] In his evidence before the Tribunal the Applicant agreed this incident had occurred, yet indicated the file note was out of context, explaining that the prison officer had asked the Applicant about his wife and children as the officer knew his brother and wife. The next day, the Applicant and another prisoner were talking about smoking when the same officer had approached, and the Applicant had said to him to “bring some smokes in”. The Applicant said he did not mention any other drugs and did not offer to pay the correctional officer $3,000, however admitted that he had said “’oh, I’ll give you some money’ but I wasn’t – I was only joking”. The officer had then said no, and later, after the Applicant had learned that the officer’s girlfriend was a woman the applicant had used to know, the Applicant had approached the officer and asked about her and the officer’s children.[128]
·On 18 January 2019, when the Applicant’s wife and children were visiting, there was an argument between the Applicant’s wife and a prison officer regarding his visitors and the Applicant moving around the floor area and also moving the plastic chairs in the visit room. The Applicant then approached another prison officer and was recorded as having said: “that cockhead has killed my visit.”[129] The Applicant agreed that the file note was accurate.[130]
·On 4 March 2019, the records show that the Applicant was involved in another prison fight, which he again did not dispute had happened.[131]
[119] Exhibit R2, page 136.
[120] Transcript 24 March 2021, page 62, lines 17 to 29.
[121] Exhibit R2, page 330.
[122] Transcript 24 March 2021, page 65, line 46.
[123] Exhibit R2, page 326.
[124] Transcript 24 March 2021, page 65, lines 30 to 33.
[125] Exhibit R2, page 137.
[126] Transcript 24 March 2021, page 62, lines 37 to 41.
[127] Exhibit R2, pages 319 and 322.
[128] Transcript 24 March 2021, page 64, lines 6 to 29.
[129] Exhibit R2, page 154.
[130] Transcript 24 March 2021, page 63, lines 1 to 14.
[131] Exhibit R2, page 309; Transcript 24 March 2021, page 63, lines 32 to 39.
On 31 July 2018, the Applicant was convicted and sentenced in the Toowoomba District Court for the following offences:
·‘Threatening violence – discharge firearms or other act at night’ and was sentenced to 18 months imprisonment;
·‘Attempted enter dwelling with intent at night whilst armed in company’ and was sentenced to 12 months imprisonment;
·Two counts of ‘burglary and commit indictable offence’, for which he was sentenced to nine months imprisonment.
Issues
The issue for the Tribunal is whether it should exercise the power in s 501CA(4) in favour of revoking the cancellation of the Applicant’s visa. In determining that issue, the Tribunal must determine:
·whether the Applicant passes the character test; and
·if the Applicant does not pass the character test, whether there is ‘another reason’ why the cancellation decision should now be revoked.
The Character Test:
The character test is specified in s 501(6) of the Act. Relevantly, it provides that a person will not pass the character test if they have a “substantial criminal record”: s 501(6)(a). A substantial criminal record is defined, in s 501(7) of the Act, and includes (c), that the person has been sentenced to a term of imprisonment of 12 months or more, and (d), circumstances wherein a person has been sentenced to two or more terms of imprisonment comprising a total of 12 months or more. Here, what is relevant is the fact of imprisonment for a period of 12 months or more, and not the time actually served.
In this instance the Applicant has been sentenced to several terms of imprisonment up to nine years and ten months. By operation of law,[132] the Applicant could not ever pass the character test, and the Tribunal so finds, accordingly. Indeed, the Applicant himself concedes that he cannot pass the character test. [133]
[132] Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666; [2009] AATA 47 at [63].
[133] The Applicant concedes that he does not pass the character test. See Exhibit A1, paragraph 5.
The issue before the Tribunal thus reduces to the question: whether there is now some other reason for the Tribunal to exercise the discretion to revoke the cancellation decision?
The Ministerial Direction
In considering whether to exercise the revocation discretion, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s.501CA (“the Ministerial Direction”) is the applicable Ministerial Direction.
Part C of the Ministerial Direction identifies the considerations that are relevant when determining whether to exercise the discretion to revoke the cancellation of the non-citizen’s visa. General guidance is provided for decision-makers in paragraph 6.2(1) – (3). Principles that ‘provide a framework within which decision-makers should approach their task of deciding whether to… revoke a mandatory cancellation under section 501CA’ are then set out, in paragraph 6.3.[134]
[134] Ministerial Direction, paragraph 6.2(3).
Paragraph 6.3 provides:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
Suitably informed by the Principles set out in paragraph 6.3, paragraph 13(2) in Part C of the Ministerial Direction then prescribes that the Tribunal must, when deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, bring to account the following primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia; and
c)The expectations of the Australian community.
In addition, paragraph 14 in the Ministerial Direction requires that, when determining whether to revoke the mandatory cancellation of a visa, the Tribunal must also take into account certain ‘other considerations’, wherever these may be relevant. These include (but are not limited to):
a) International non-refoulment obligations;
b) Strength, nature and duration of ties;
c) Impact on Australian business interests;
d) Impact on victims; and
e) Extent of impediments, if removed.
Here, it is to be emphasised the importance of these being regarded as “other”, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[135]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non-refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
[135] [2018] FCA 594, at 23.
The Primary Considerations
Protection of the Australian community from criminal or other serious conduct
Paragraph 13.1(1) of the Ministerial Direction specifies that when considering protection of the Australian community, decision-makers should have regard for the principle that the Government is committed to protecting the Australian community from harm as the result of criminal activity or other serious conduct by non-citizens. The Ministerial Direction specifies that 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 expressed to be a step that is consistent with this principle, thus ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved. 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.
The nature and seriousness of the Applicant’s conduct:
Paragraph 13.1.1(1) of the Ministerial Direction specifies that when considering the nature and seriousness of the non-citizen’s criminal offending, or other serious conduct to date, the Tribunal must have regard to:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or Government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)Subject to paragraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)The cumulative effect of repeated offending;
g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
i)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, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.
The Respondent submits that the Applicant’s offending should now be categorised by the Tribunal as “extremely serious” because of the following:
·The Applicant’s criminal history includes two convictions that each entail aspects of violence: the conviction in the District Court at Toowoomba on 31 July 2018 for ‘Threatening Violence – Discharge Firearms or other Act at Night’; and the conviction recorded on 18 August 2016 before the Ipswich Magistrates Court for ‘Common Assault in a Public Place whilst Adversely Affected by Intoxicating Substance’. The Respondent submits that these offences must be categorised as “very serious” because of paragraph 13.1.1(1)(a) in the Ministerial Direction.
·The Applicant’s drug convictions before the Queensland Supreme Court on 22 September 2017, were described by the sentencing Judge, His Honour Justice Martin as having been for a “massive” amount of methamphetamine, with an estimated street value exceeding $2 million. Here, the Respondent submits that the serious societal impacts of such drug-related offending are self-evident.[136]
·Other convictions recorded against the Applicant also need to be categorised as “very serious” under the requirements of the Ministerial Direction. In particular, the Applicant’s conviction before the District Court at Toowoomba on 31 July 2018 for ‘Attempted Enter a Dwelling with Intent at Night Whilst Armed in Company’, and the two charges of ‘Burglary and Commit Indictable Offence’.
·The Applicant has a “troubling” traffic history, incurred over a long period, thus revealing a blasé attitude towards general obedience to the law, and for matters of community safety pertaining to use of the roads.
·The lengthy custodial sentences imposed on the Applicant needs to be accepted by the Tribunal as an objective indicator of the overall seriousness of the Applicant’s offending.
·The Applicant’s offending history now reveals a trend of increasing seriousness over time.
[136] Exhibit R1, paragraph 17.
In his Statement of Facts, Issues and Contentions, the Applicant concedes that his offending conduct does include offences with elements of violence, yet submits that these may be overlooked by the Tribunal, as these were “committed while under the influence of substances and therefore [are] not a true reflection of the Applicant’s character” [Tribunal insertion]; and because “there is no evidence to suggest that any injuries were sustained by the Applicant’s victims”.[137]
[137] Exhibit A1, paragraph 34.
The Tribunal cannot accept these submissions. To do so would be to fall into factual error. The evidence reveals the Applicant to have been a regular drug user since his early teens, and reveals recurrent instances of law breaking, oftentimes in direct consequence of the influence of drugs and/or alcohol on the Applicant. In these circumstances, unacceptable conduct by the Applicant when under the influence of intoxicants is more aptly categorised as a recurrent and troubling aspect of Applicant’s character. Nor can the Tribunal be persuaded to now downplay the seriousness of the Applicant’s past violence, on putative grounds that ‘no injuries were sustained by the victims of the Applicant’. That the home invasion victims were not injured in consequence of the Applicant having discharged a sawn-off shotgun into the screen door of their home is more an instance of miraculous good fortune than the product of any intent on the part of the Applicant, and the Tribunal will not now accept this as affording any logical basis for diminishing the violence inherent in the Applicant’s conduct on that date. Equally, there are a number of other instances wherein immediate physical harm has been caused to victims, in direct consequence of the violent actions of the Applicant.[138]
[138] For example, 1 May 2016 when the Applicant committed the offence of common assault; in August 2015 when the Applicant was domestically violent towards his own wife, RG; and whilst in prison, where the Applicant admits that he has engaged in violent assaults on other prisoners.
Further, the Applicant submits that with respect paragraph 13.1.1(b) of the Ministerial Direction “the Applicant’s offending history has not involved women or children”.[139] Yet, that is demonstrably untrue, as is now revealed by the fact of the domestic violence incident that necessitated the making of a DVO against the Applicant on 24 August 2015. In these circumstances, clause 13.1.1(b) of the Ministerial Direction requires that this be treated as “very serious”.
[139] Exhibit A1, paragraph 35.
Ultimately, the Tribunal accepts all of the submissions of the Respondent and is entirely unpersuaded by any of the Applicant’s submissions as to why the Applicant’s offending conduct could now be categorised by the Tribunal as anything other than “very serious”.
The risk to the Australian Community should the non-citizen commit further offences or engage in other serious conduct.
In considering the question of future risk to the Australian community should the Applicant commit further offences or engage in other serious conduct in the future, the Tribunal is required to take guidance from paragraph 13.1.2 in the Ministerial Direction, which provides:
(a)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 of the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The Applicant submits that, in terms of risks to the Australian community arising in consequence of the Applicant potentially committing further offences or engaging in other serious conduct in the future, that risk should now be treated as one that has been mitigated in consequence of: [140]
(a)Proper management and treatment of the Applicant’s grief at the loss of B1, (which is here claimed to have triggered his substance abuse); and
(b)The (future) deterrent effect of the Applicant having now served an actual term of imprisonment, and his facing the (on-going future) prospect of deportation, in the event of his engaging in further criminal or other serious conduct in the future.
[140] Exhibit A1, paragraph 45
Conversely, the Respondent submits that the Applicant presents as an unacceptable risk of further offending because:[141]
·Similar offending involving possession of commercial quantities of illicit drugs carries an attendant risk of harm to the Australian community, particularly in terms of the potential for physical harm to, or death of drug users, coupled with the risk of the commission of further offences relating to drug use, such as property-based offences;[142]
·Further crimes involving physical violence by the Applicant may cause risk of serious harm to victims;
·Further crimes of burglary may cause the loss of property and associated harm to victims;
·Further instances of speeding and drink-driving may result in physical harm to road users;
·There is evidence that the Applicant was a regular drug user even before the onset of B1’s terminal illness.
·Although the Applicant has engaged in some drug rehabilitation programs while in prison his capacity for abstention from drugs once released from prison is a matter that remains entirely untested.
·Although the Applicant has extensive family support, to which he will return after his release from prison, that set of circumstances existed prior to - and throughout - all of the Applicant’s offending.
·That there is a real risk of the Applicant re-offending is a matter that is now corroborated by the most recent risk of re-offending assessment conducted by Queensland Corrective Services.[143]
[141] Exhibit R1, paragraph 25 - 26
[142] Sam v Minister for Home Affairs [2019] AATA 35 at [42].
[143] Exhibit R1, paragraph 31; Exhibit R2, pages 280 and 281.
It is now difficult to accept that the risk of the Applicant engaging in further offending is only “low” because the drug use which caused the past offending was specifically grief-related, in circumstances wherein the Applicant has now had enough time to deal with the underlying grief caused by the death of his son B1. There is evidence that the Applicant was a regular drug user for a considerable period even prior to B1’s diagnosis, and the proffered basis for why the risk of future offending is now claimed as low does not explain the Applicant’s involvement in offences beyond the fact of his personally using drugs: such as the substantial drug possession offence for which he was arrested in January 2017; and his involvement in a series of home invasion offences.
Equally, there is no real evidence before the Tribunal regarding the steps taken by the Applicant to deal with his grief, and, given his past inappropriate responses to various stressors such as the illness of his son B1, real doubts now remain as to whether the Applicant will react to ordinary life stressors in a more constructive manner in the future. Although the Applicant has a large family, and substantial community support that would no doubt surround him in the event that he were to be allowed to return to the Australian community, it is questionable whether this ‘protective scaffold’ will ever be enough to prevent the Applicant from lapsing back into drugs and crime, given that that scaffold already existed at the time of the Applicant’s major offending, and in circumstances wherein previously the Applicant went to efforts to hide his drug use, particularly from his wife.
Ultimately, the Tribunal determines the following as regards the matters identified in paragraphs 13.1.2(a) and (b) of the Ministerial Direction:
·The nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct is likely to be “very serious”; and
·The likelihood of the Applicant engaging in further criminal or other serious conduct is appreciable such that it presents as an unacceptable risk to the Australian community.
In these circumstances, ongoing risk to the Australian community must be given very substantial weight in favour of non-revocation of the visa cancellation decision. Even if the risk of the Applicant re-offending were low (as is now contended by the Applicant),[144] such is the nature of any prospective future harm to the Australian community that the Tribunal concludes that even a low risk of future re-offending would be enough to accord this primary consideration very substantial weight against revocation of the visa cancellation decision.
[144] Exhibit A1, paragraph 46(c).
The best interests of minor children in Australia affected by the decision
Paragraph 13.2 in the Ministerial Direction sets out various factors that, wherever relevant, must be considered as part of an assessment of the best interests of minor children in Australia who will be impacted by a refusal to revocate a visa cancellation decision.
The Applicant is the father of six surviving biological children:
·KG, male, born June 2010;
·BG, male, born April 2011;
·EG, male, born March 2012;
·MG, female, born October 2013;
·LG, female, born March 2015; and
·NG, female, born February 2016.
In addition to the Applicant’s surviving children, there are also at least ten nephews and nieces residing in Australia.[145]
[145] Transcript 24 March 2021, pages 87 and 97.
The Applicant submits that the best interests of all these minor children weigh significantly in favour of revocation of the visa cancellation decision, on the basis that:[146]
·The Applicant has been a prominent and constant feature in the lives of his children, and they continue to share meaningful contact with the Applicant, notwithstanding the Applicant’s current imprisonment (13.2(4)(a)).
·The Applicant has played a positive parental role in the past and will continue to play a positive role in the lives of each of his children in the future (13.2(4)(b)).
·There is no evidence to suggest that any of the children have been negatively impacted by the Applicant’s offending. Further, it is submitted that the likelihood of the Applicant now re-offending in the future is low and, in that light, the Applicant now also poses a low risk of adversely affecting the children in the future (13.2(4)(c)).
·Separation from the Applicant would have a devastating effect on his children, given their strong bond and their expectations that the Applicant will return home to them upon his release from prison (13.2(4)(d)).
·Subparagraph 13.2(4)(e) is not relevant as there is no other person that fulfils a paternal role for the children. Although the Applicant here acknowledges that his wife, RG, fulfils a maternal parenting role in relation to the children, it is submitted that the evidence of RG is that she has experienced financial and emotional hardship in consequence of the absence in prison of the Applicant, which cannot be ameliorated unless the Applicant returns home to live with her and their children. The financial and practical demands of raising six children, and RG’s experienced hardship as a single parent will now only be exacerbated in the event that the Applicant is deported.
·With respect to subparagraph 13.2(4)(f), while noting that because of the children’s young ages they have only limited insight into the total circumstances, the Applicant’s children have still had regular contact with the Applicant since he has been in prison. Since his imprisonment the children have all expressed how much they miss the Applicant, and this should be taken as an expression of their views as being opposed to their father’s deportation.
·With respect to subparagraphs 13.2(4)(g) and (h) of the Direction, it is submitted that there is no evidence that the Applicant has ever abused or neglected any of the children, nor is there any evidence that any of the children have experienced any physical or emotional trauma arising from the Applicant’s conduct.
[146] Exhibit A1, paragraphs 51 to 64.
The Respondent concedes that the prima facie position remains that the bests interests of the Applicant’s children are served by revocation of the visa cancellation decision, yet submits that less weight needs be given to this consideration because: [147]
·The Applicant has not performed a primary carer role in the case of his children for a considerable period, in consequence of his lengthy period of imprisonment. The Applicant is not in a direct parenting role in the case of any of his nieces or nephews.
·There is some evidence of the children having borne witness to instances of domestic violence perpetrated by the Applicant against their mother RG.
·Although the Applicant’s children are apt to be emotionally impacted by the prospect of the Applicant’s deportation, that impact may be ameliorated by modern electronic communication means.
·The children’s mother, RG, is presently performing a parental role and will continue to do so in the future.
[147] Exhibit R1, paragraph 36 to 37.
Ultimately, the Tribunal accepts that the best interests of minor children in Australia are best served by a revocation of the cancellation decision. However, the weight that the Tribunal attaches to this consideration is circumscribed, because:
· The Applicant is not in a direct parental role in the case of any of his nieces or nephews, such that less weight is given to their needs in the manner specified by paragraph 13.2(4)(a) of the Ministerial Direction.
· The Applicant has not performed a direct daily parenting role on behalf his children since his incarceration in 2017.
· The Tribunal has formed the view that the Applicant’s wife RG has performed an admirable and very effective parenting role, singlehandedly raising the children in the absence of the Applicant. There is no evidence to suggest that this circumstance will change in the event that the Applicant were to be deported.
· RG has the ongoing support of close family residing very near to her and her children in the community, as was confirmed in the evidence of each of LPA, PLA, PG and DT. This support appears to have acted as a substantial and important protective factor against the detrimental impact of the Applicant’s absence from the lives of the children, in consequence of his incarceration.
· There is evidence that at least some of the Applicant’s children have borne witness to physical violence by the Applicant towards their mother RG.
· The Tribunal does not accept that the risk of the Applicant re-offending is now only a low risk, as is contended by the Applicant.
· The risk of any future detrimental impact of the Applicant being deported to New Zealand upon his children is a factor that is considerably diminished in circumstances wherein the evidence of RG before the Tribunal was that she and the children would also relocate to New Zealand, in the event that the Applicant were to be deported.
In consequence therefore, the Tribunal assesses that, although the best interests of minor children in Australia weigh in favour of revocation of the visa cancellation decision, only ‘some’ weight in favour of revocation of the visa cancellation arises because of this consideration.
Expectations of the Australian Community.
Paragraph 13.3(1) of the Ministerial Direction specifies that 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 in future 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 of the nature of the character concerns or the offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers are required to have due regard to the Government’s views in this respect, which reflect those of the Australian community,[148] yet the question as to whether it is appropriate in all the circumstances to act in accordance with those expectations remains a matter within the Tribunal’s discretion.[149]
[148] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [66] – [67] (per Charlesworth J), [91] & [104] (per Stewart J)
[149] Ibid, at [76] (per Charlesworth J); and [97], (per Stewart J).
The Tribunal concludes that this case is one in which Paragraphs 6.3(3) and 6.3(4) in the Ministerial Direction are determinative of the need to now refuse to revoke the visa cancellation decision. Here, it is to be noted that the Applicant has been, amongst other things, convicted of possessing a very substantial quantity of methamphetamine with a street value exceeding $2 million, thus warranting a term of actual imprisonment of as long as nine years and ten months. The Tribunal further notes that the Applicant was very obviously evasive in his evidence in relation to his involvement in that crime thereby giving rise to the spectre of the Applicant having not fully severed his ties with criminal elements in the community engaged in serious aspects of the illicit drug trade. Furthermore, it is to be noted that the Applicant has been convicted of home invasion offences and has actually discharged a sawn-off shot gun towards the occupants of one of those homes during the process of his attempting to use actual violence to enforce an illegal drug debt. Even in prison, the Applicant admits to his use of violence against others. The primacy of these matters as grounds requiring the Applicant’s deportation persist, even notwithstanding the Applicant having been in Australia since the age of 14; having contributed to the community in a positive manner during those times when he has held paid employment; and despite the Applicant also having many immediate family members, including young children who are resident in Australia[150] This consideration now weighs determinatively against revocation of the visa cancellation decision.
[150] Exhibit A1, paragraph 67.
OTHER CONSIDERATIONS.
As to the various ‘other considerations’ identified in paragraph 14 of the Ministerial Direction, and on the basis of the cases advanced by both the Applicant and the Respondent before the Tribunal, now only (b), ‘Strength nature and duration of the Applicant’s ties to this country’; and (e), the ‘Extent of the impediments that would be faced by the Applicant if removed from Australia’ require consideration by the Tribunal.
Strength nature and duration of the Applicant’s ties to Australia
The Applicant submits that this consideration should weigh in favour of revocation of the visa cancellation decision by reason that:[151]
·The Applicant has lived in Australia since shortly before his 14th birthday.
·The Applicant has made some positive contributions to Australia in the past through his having completed his education here, and during his periods of paid employment.
·The Applicant has extensive family ties to Australia, including through his children, each of whom were born in Australia, and who have little connection with New Zealand.
[151] Exhibit A1, paragraph 71 and 72.
The Respondent acknowledges that the Applicant has lived in Australia for a considerable period, and submits that:[152]
·The Applicant spent the majority of his formative years overseas, arriving in Australia shortly before his 14th birthday.
·The Applicant has made some positive contribution to the Australian community in the past through employment (albeit that it is apparent there were periods of unemployment).
·It is acknowledged that the Applicant has family ties to Australia through his wife and children particularly, as well as his extended family, and that they may be impacted by separation from the Applicant (although noting, as above, the potential for the applicant's family to join him in New Zealand).
[152] Exhibit R1, paragraphs 48 to 50.
At the end of it, the Tribunal concludes that this factor weighs in favour of revocation of the visa cancellation decision, yet the weight that attaches to it is only marginal and does not assist to outweigh those primary considerations in favour of non-revocation
Extent of impediments if removed
Paragraph 14.5 of the Ministerial Direction requires that consideration be given to the impediments that the Applicant may face, in the event that he is deported from Australia to his home country of New Zealand, in terms of re-establishing himself and maintaining basic living standards (assessed in the context of what is generally available to other citizens of New Zealand), when taking into account the Applicant’s age and health; and whether there are substantial language or cultural barriers; and in light of any social, medical or economic supports available to the Applicant in that country.
The Applicant submits that the difficulties and impediments that he will face in the event that the mandatory visa cancellation decision is not revoked will amount to “a significant degree of practical, financial and emotional hardship upon a return to New Zealand, due to his separation from family and absolute lack of social, medical and economic support in New Zealand”. And, that “the Applicant’s mental health would be put in a perilous state if he were to return to his country of citizenship because of the financial strain that would be placed upon his wife who currently bears the burden of providing financially for their young family, as well as the non-financial aspects typically required of caring for six young children”. [153]
[153] Exhibit A1, paragraphs 77 to 78.
The Respondent contends that this consideration should attract only minimal weight in the Applicant’s favour, submitting that:[154]
·The Applicant is an adult who appears to be in good health. There are no language or cultural barriers for the Applicant in New Zealand, given its broad similarity to Australia and the fact that the Applicant lived there for nearly the first 14 years of his life.
·There is nothing to suggest that the Applicant would not have available to him in New Zealand the equivalent social, medical or economic support as is available in the case of all other New Zealand citizens.
·While the Applicant may face some short-term practical difficulties in re-establishing himself in New Zealand, there is nothing to suggest that these factors would prove insurmountable.
·While it may be accepted that the Applicant and his family and friends will be emotionally impacted by the Applicant no longer living in Australia, they can continue to maintain contact with the Applicant by modern means of communication, and there is no evidence of any legal impediments to the Applicant being able to be visited (or joined permanently) by his family in New Zealand.
·There is no evidence (beyond the Applicant’s own assertions) to support the contention that his mental health would be seriously impacted by the visa cancellation not being revoked.
[154] Exhibit R1, paragraphs 52 to 55.
The Tribunal concludes that any impediments the Applicant might face upon deportation to New Zealand will not be insurmountable, and nor will these be anywhere near as significant as are now contended by the Applicant. The Applicant is still a young man, in apparent good health, and there are no substantial cultural or language barriers arising, in the event that the Applicant is compulsorily removed to New Zealand. The Applicant will also have immediate access to the same medical and welfare supports as are available to all other New Zealand citizens. As becomes clear from the evidence received before the Tribunal, the Applicant also still has some family connections in New Zealand, and the Applicant has clearly maintained connections with New Zealand. In her own evidence before the Tribunal, RG also indicated that in the event that her husband were to be deported, that she and the children would also thereafter follow the Applicant and re-locate to New Zealand. These are important matters that detract from the Applicant’s submissions regarding impediments.
This Tribunal determines that the extent of any impediments lend only marginal weight in favour of revocation of the mandatory cancellation decision, insufficient to outweigh those primary considerations in favour of non-revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
As has been noted, the Applicant does not pass the character test. Having regard to the Ministerial Direction and to the totality of the evidence before me, I am of the view that there is not now ‘another reason’ to revoke the cancellation decision. The Tribunal should therefore exercise the power conferred by s 501CA(4) by refusing to revoke the mandatory visa cancellation.
In reaching this conclusion, I have had regard to the considerations referred to in the Direction. With regard to the weight allocatable to each of these Primary and Other Considerations, I find as follows:
·Primary Consideration A weighs very substantially in favour of non‑revocation;
·Primary Consideration B attracts some weight in favour of revocation;
·Primary Consideration C weighs determinatively against revocation of the visa cancellation decision;
·Other Considerations (a), (c) and (d) are of neutral weight, or are not relevant;
·Other Considerations (b) and (e) each weigh marginally in favour of revocation of the mandatory visa cancellation decision; and
·The combined weight of Primary Consideration A and Primary Consideration C determinatively weigh in favour of non-revocation, and now substantially outweigh any of the factors that now support revocation of the visa cancellation decision.
The Tribunal concludes that a holistic application of the considerations in the Direction to the evidence therefore favours non-revocation of the mandatory cancellation of the Applicant’s visa.
The decision under review is affirmed.
I certify that the preceding 122 (one hundred and twenty-two paragraphs are a true copy of the reasons for the decision herein of Member Andrew McLean-Williams
………………[SGD]………………………
Associate
Dated: 4 June 2021
Date of hearing: 24 and 30 March 2020 Applicant:
Self represented (via AVL)
Solicitor for the Respondent Mr David McLaren (via AVL)
Minter Ellison
Annexure A – Decision dated 12 April 2021
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2021/0418
General Division )
Re: LBND
Applicant
And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RespondentDECISION
TRIBUNAL: Member Andrew McLean-Williams DATE: 12 April 2021 PLACE: Brisbane DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the reviewable decision made by the delegate of the Respondent dated 15 January 2021.
The Tribunal will give written reasons for this decision within a reasonable time of the decision.
....................................[sgd]..........................
Member Andrew McLean-Williams
ANNEXURE B - EXHIBIT REGISTER
File No 2021/0418
Between LBND (Applicant)
AndMINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS (Respondent)
EXHIBIT
DESCRIPTION OF EVIDENCE
DATE OF DOCUMENT
DATE RECEIVED
G1
G Documents (pages 1 to 193)
-
7 February 2021
R1
Respondent’s Statement of Facts, Issues and Contentions (pages 1 to 11)
10 March 2021
10 March 2021
R2
Respondent’s Supplementary Documents (pages 1 to 363)
-
10 March 2021
A1
Applicant’s Statement of Facts, Issues and Contentions (pages 1 to 15)
23 February 2021
23 February 2021
A2
Letter of Offer from Mr NM (one page)
21 January 2021
19 March 2021
A3
Statement of the Applicant (six pages)
19 March 2021
19 March 2021
- AGLC
- LBND and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1621
- Case
- [2021] AATA 1621
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Tribunal was whether there was "another reason" to revoke the mandatory cancellation decision, as contemplated by subsection 501CA(4) of the Act. This required the Tribunal to consider and apply Ministerial Direction No 79, which outlines the framework for assessing primary and other considerations when determining whether to revoke a visa cancellation. The Tribunal was tasked with determining the appropriate weight to be given to various considerations, including the protection of the Australian community from criminal or other serious conduct, and any "other" considerations presented by the Applicant.
The Tribunal's reasoning emphasised the distinction between "primary" and "other" considerations, drawing on principles established in *Suleiman v Minister for Immigration and Border Protection*. It was noted that while primary considerations are generally afforded greater weight, "other" considerations are not inherently secondary and may, in certain circumstances, be given the greatest weight. The Tribunal considered the nature and seriousness of the Applicant's conduct, the risk to the Australian community, and other factors as outlined in paragraph 13.1 of Ministerial Direction No 79. The Tribunal ultimately affirmed the delegate's decision not to revoke the mandatory cancellation.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Here, it is to be emphasised the importance of these being regarded as “other”, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[135] “…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non-refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[135] [2018] FCA 594, at 23.The Primary ConsiderationsProtection of the Australian community from criminal or other serious conduct Paragraph 13.1(1) of the Ministerial Direction specifies that when considering protection of the Australian community, decision-makers should have regard for the principle that the Government is committed to protecting the Australian community from harm as the result of criminal activity or other serious conduct by non-citizens. The Ministerial Direction specifies that 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 expressed to be a step that is consistent with this principle, thus ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved. Decision-makers should also give consideration to:a)The nature and seriousness of the non-citizen’s conduct to date; andb)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.The nature and seriousness of the Applicant’s conduct: Paragraph 13.1.1(1) of the Ministerial Direction specifies that when considering the nature and seriousness of the non-citizen’s criminal offending, or other serious conduct to date, the Tribunal must have regard to:a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or Government representatives or officials due to the position they hold, or in the performance of their duties, are serious;d)Subject to paragraph (b) above, the sentence imposed by the courts for a crime or crimes;e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;f)The cumulative effect of repeated offending;g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending; h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);i)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, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.