Leau and Minister for Home Affairs (Migration)
[2019] AATA 843
•13 May 2019
Leau and Minister for Home Affairs (Migration) [2019] AATA 843 (13 May 2019)
Division:GENERAL DIVISION
File Number(s): 2017/2005
Re:Richard Leau
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:The Hon. Dennis Cowdroy OAM QC, Deputy President
Date: 13 May 2019
Place:Sydney
The decision of the Respondent dated 29 March 2017, to refuse to revoke the mandatory cancellation of the Applicant’s visa made under section 501(3A) of the Migration Act 1958 (Cth), is affirmed.
..…….............................[sgd].......................................................
The Hon. Dennis Cowdroy OAM QC, Deputy President
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass character test – TY Subclass 444 Special Category (Temporary) Visa – New Zealand citizen – extensive criminal record – repeated violent offending – common assault – domestic violence – aggravated break and enter – drive without licence – fail to appear in accordance with bail undertaking – destroy or damage property – stalk/intimidate – primary considerations – protection of Australian community from criminal or other serious conduct – nature and seriousness of conduct – best interests of minor children – expectations of Australian community – risk to the Australian community – other considerations – strength, nature and duration of ties to Australia – extent of impediments if removed – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) – ss501, 501CA
CASES
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
DND V Minister for Home Affairs [2018] AATA 2716
Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141YNQY v Minister for Immigration and Border Protection [2017] FAC 1466
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs, Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
The Hon. Dennis Cowdroy OAM QC, Deputy President
13 May 2019
The applicant seeks review of a decision of the delegate of the Minister for Home Affairs made on 29 March 2017. By such decision the delegate found that there was no reason, pursuant to section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) (“the Act”) to revoke the original decision of the respondent to cancel the applicant’s Class TY Subclass 444 Special Category (Temporary) Visa (“the Visa”).
The respondent’s decision to cancel the Visa was made on the ground that the respondent failed to pass a character test as defined in section 501(6) of the Act. On 20 May 2016 the applicant was notified of the respondent’s decision to cancel a Visa pursuant to section 501(3A) of the Act.
On 7 June 2016 the applicant made representations seeking revocation of the mandatory cancellation of the Visa, pursuant to section 501CA(4)(a) of the Act. However, on 29 March 2017, as indicated above, the delegate determined not to revoke such mandatory cancellation.
On 11 April 2017 the applicant lodged with the Tribunal an application for review of the delegate’s decision. On 15 June 2017, the Tribunal, differently constituted, affirmed the decision under review. However, the applicant thereafter sought review of the Tribunal’s decision in the Federal Court of Australia in proceedings VID 858/2017. On 20 July 2018, by consent, the Federal Court of Australia remitted the matter to the Tribunal for redetermination.
CRIMINAL HISTORY
The applicant was born in 1984 in Samoa. He first arrived in Australia, via New Zealand accompanied by his mother in 1992 when he was eight years of age. The applicant first commenced criminal offending in 2002. The National Police Certificate shows the history of offending as follows:
Date
Offence
Result
8 May 2002
Campbelltown
Local Court
Destroy or damage property
Fine of $500, Court costs of $58 and compensation of $500. The applicant was placed on a s.9 bond for a period of 12 months, with conditions
Destroy or damage property
Fine of $500, Court costs of $58 and compensation of $200. The applicant was placed on a s.9 bond for a period of 12 months, with conditions
23 November 2004
Kogarah
Use uninsured motor vehicle
Fine of $300
Local Court
Use unregistered vehicle on road area (not a trailer)
Fine of $300
Unlicensed driver./rider (not licensed for 5 years) – first offence
Fine of $300 and Court costs of $63
4 May 2005
Campbelltown
Local Court
Destroy or damage property <= $2000 (T2)
Fined of $300 and Court costs of $63
Common assault (T2)
Community service order of 150 hours
Common assault (T2)
Community service order of 150 hours
Common assault (T2)
Community service order of 150 hours
6 March 2007
Campbelltown
Local Court
Common assault (T2)
Community service order of 90 hours (call up)
Common assault (T2)
Community service order of 90 hours (call up)
Common assault (T2)
Community service order of 90 hours (call up)
9 May 2007
Campbelltown
Local Court
Never licensed person driven vehicle on road – 2nd offence
Section 10 bond for a period of 2 years and required to pay Court costs of $67
Use uninsured motor vehicle
Fine of $150
Use unregistered motor vehicle
Fine of $150
8 February 2012
Campbelltown
Local Court
Never licensed person drive vehicle on road – 2nd offence
Fine of $600, Court costs of $81, and disqualified from driving for a period of 3 year commencing on 8 February 2012
8 August 2012
Campbelltown
Local Court
Fail to appear in accordance with bail undertaking
Imprisonment for 8 days commencing 1 August 2012
Common assault
Imprisonment for 8 days commencing 1 August 2012
Destroy or damage property (dv)
Section 10A conviction, with no other penalty
Drive while disqualified from holding a licence
Imprisonment for 8 days commencing 1 August 2012
2 December 2013
Campbelltown
Local Court
Steal from the person
Imprisonment for 8 months, commencing 4 October 2013, with a non-parole period of 2 months and subject to condition
Stalk/intimidate intend fear physical harm etc (domestic) – t2
Imprisonment for 8 months, commencing 4 October 2013, with a non-parole period of 2 months and subject to conditions
Common assault (DV)- t2
Imprisonment for 8 months, commencing 4 October 2013, with a non-parole period of 2 months and subject to condition
Fail to appear in accordance with bail undertaking (Three counts)
On each count, imprisonment for 1 months commencing 4 October 2013
Attempt dispose property – theft <= $5000 – t2
Section 9 bond, with 12 months supervision order
22 October 2014
Campbelltown
Local Court
Attempt dispose property – theft <= $5000 – t2
Imprisonment 3 months, commencing 10 July 2014 (call up)
Possess or use a prohibited weapon without permit
Imprisonment 3 months, commencing 10 August 2014
1 February 2016
Campbelltown
District Court
Aggravated b&e & commit serious indictable offence – people there – si
Imprisonment 3 year and 6 months, commencing 4 December 2014, non-parole period of 18 months with conditions
The chronology of the offending establishes that although the original offences, in 2002 to 2004 were of a relatively minor nature, there has been an increasing tendency in seriousness. For example the offences committed in 2005 and 2007 related to assault. Thereafter in 2012 and 2013, the convictions related to assaults which attracted penal servitude. In 2014 the applicant was convicted of possessing a prohibited weapon without a permit and was sentenced to imprisonment for three months.
The offending became even more serious thereafter. The conviction on 1 February 2016 was recorded as aggravated break and enter and commit serious indictable offence for which imprisonment of three years and six months was imposed.
DIRECTION 79
Direction 79, made pursuant to section 499 of the Act, provides guidance to decision-makers in assessing the exercise of powers under section 501 of the Act. As provided by clause 6.2, the first consideration under the heading of “General Guidance” is the protection of the Australian community from harm “as a result of criminal activity or other serious conduct by non-citizens.”
Under the heading “Principles”, it is stated in clause 6.3(1) that Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. It continues:
“Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.”
The principles confirm that a non-citizen who has committed a serious crime can generally be expected to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia and that, in some circumstances, criminal offending or other conduct, and “harm that would be caused if it were to be repeated, maybe so serious, that any risk of similar conduct in the future is unacceptable.”
The principles also state that Australia has a low tolerance of any “criminal or other serious conduct.” And 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 should be allowed to come to, or remain permanently in, Australia.”
It is mandatory that decision-makers take into account the Primary and Other Considerations relevant to the individual case. The Primary Considerations identify the protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and the expectations of the Australian community: see Part C of the Direction. Pursuant to clause 13.1.1, the nature and seriousness of the conduct is to be considered including sentences imposed by the courts and the frequency of non-citizens offending and whether there is any trend of increasing seriousness and the cumulative effect of repeated offending.
The Primary Considerations in Part C of the Direction reiterate that there is to be a low tolerance for non-citizens who have previously engaged in criminal or other serious conduct and the decision-maker is required to give consideration to the nature and seriousness of the non-citizens conduct to date; and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct: see clause 13.1.2(a) and (b).
Clause 13.3 makes provision for consideration of the expectations of the Australian Community. Clause 13.3(1) provides inter alia:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person.”
Direction 79 does not dictate the manner in which the discretion is to be exercised, but instead creates a framework within which the discretion vested in the decision maker is to be lawfully exercised: see Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141 (2014 FCR 562) Perry J [80]. See also DND v Minister for Home Affairs (Migration) [2018] AATA 2716 at [82].
It is also established the Australian Community “expects” non-revocation of a decision to cancel where the subject person has been convicted of serious crimes: see YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76].
Part C relates specifically to revocation of a visa. In particular, clause 13.1.1 refers to the very serious view that is taken of non-citizens who commit violent and/or sexual crimes. Specifically, where there is repeated offending, the cumulative effect must be taken into consideration: see clause 13.1.1(1)(f). Sentences of imprisonment imposed by courts for a crime or crimes is also to be considered in viewing the seriousness of a conduct: see clause 13.1.1(1)(d).
Section 501(2) empowers the Minister to cancel a visa which had been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test.
The character test is set out in section 501(6) of the Act and includes matters relevant to the current application. Namely, a person has a substantial criminal record (as defined by subsection 7 thereof). Section 501(7)(c) provides that a person has a “substantial criminal record” if:
“The person has been sentenced to a term of imprisonment of 12 months or more”.
APPLICATION OF PRINCIPLES AND PRIMARY CONSIDERATIONS
By virtue of the offending, as recorded in the above history of convictions, especially the sentences of imprisonment, the applicant does not pass the character test defined in section 501 of the Act.
Protection of the Australian community: clause 13.1
The Tribunal notes that in respect of the offence for which the applicant was sentenced to 3 years and six months imprisonment, with 18 months non-parole from 4 December 2014, the applicant was found to have intimidated a neighbour, a female, outside her house. The applicant reportedly then entered the premises of the neighbours in the rear, smashing down the glass sliding kitchen door and kicking in a wooden laundry door. He tore a mobile phone from the hand saying “consider this a warning, cunt” before leaving the house. At the hearing the applicant did not concede the facts relied upon by the police.
Such conduct reportedly occurred in the presence of the neighbour’s six-year-old son, causing great distress. Again the applicant did not concede the facts. At the sentencing hearing in the District Court of New South Wales, criminal jurisdiction at Campbelltown on Monday, 1 February 2016, the trial judge concluded that although there may have been some animosity between the applicant and the neighbour, it did not excuse or in any way mitigate against the seriousness of the offence. At the time of the offence the applicant was on parole.
The nature and seriousness of the conduct
Direction 79 superseded the previous Direction 65. Significantly, pursuant to Direction 79, violence against females was especially addressed, with the insertion of clause 13.1.1(1)(b) which provides:
“The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed.”
The fact that the offending of the applicant has escalated in recent years is concerning. Further, the long history of criminal offending shows that the applicant has little regard for his obligations under the law of this country.
Risk to the Australian community
To understand the applicant’s criminal offending, it is necessary to consider his past history of offending in detail as set out hereunder.
Initially the applicant’s offending in 2002 comprised of destruction of property for which the applicant was convicted of two counts, find $500 plus court costs, order to pay compensation and was directed to enter into a 12 months supervision order. The applicant was unable to supply any details of such offences.
Thereafter in 2004 he was found to be driving a motor vehicle whilst unlicensed and driving a vehicle which was unregistered and uninsured. In each case he was ordered to pay fines. On 4 May 2005 in Campbelltown Local Court the applicant was convicted of destroying or damaging property for which a fine of $300 plus court costs was imposed. He was also charged with three counts of assault. In each case the applicant was given the benefit of a community service order of 150 hours each.
On 6 March 2007 in the Campbelltown Local Court, the community service orders were called up because the applicant had failed to comply with the provisions of such orders. An additional 90 hours of community service was imposed in each case for each of the three assaults.
Shortly thereafter, on 9 May 2007 the applicant was again convicted of driving whilst unlicensed and driving an unregistered and uninsured motor vehicle. In this instance he was given a bond to be of good behaviour for two years in respect of the driving offence, and fined $150 each for the offences involving the uninsured and unregistered motor vehicle.
On 8 February 2012 in the Campbelltown Local Court the applicant was again convicted of another offence of driving whilst unlicensed. For this offence he was fined $600, plus ordered to pay court costs and disqualified from driving for a period of three years.
On 8 August 2012, only six months after the previous offence, the applicant was again found to have been driving a vehicle whilst disqualified from holding a licence. For this offence he was declared a habitual offender and imprisoned for eight days and disqualified from driving for two years. It appears that the order that he was a habitual offender was quashed but there is no detail of such fact. However the applicant was also given a prison sentence of eight days for failing to appear in accordance with his bail conditions. The applicant also received imprisoned for eight days for common assault and was given a bond in respect of destroy or damage property.
The circumstances relating to this offence arise out of a domestic dispute with the mother of his second child. The record shows there was a violent altercation during which the applicant seized his former partner’s mobile phone and in the ensuing melee, broke the window of her father’s motor vehicle. The applicant also violently assaulted the former partner after the applicant accused her of cheating on him. Such allegation was denied by the former partner. She became hysterical and a neighbour telephoned police. According to the facts sheet of the NSW police, the applicant made full admissions in relation to the pushing of the victim and the smashing of the car window.
The applicant claimed to be very remorseful when apprehended by police. At the hearing the applicant did not concede the accuracy of the police facts contained in the police report.
A Provisional Apprehended Violence Order (AVO) was issued and served upon the applicant on 4 March 2012. However the victim died before any charges relating to this incident, and the hearing of the AVO could be heard by the court.
Before the Campbelltown Local Court on 2 December 2013, the applicant was convicted of failing to appear in accordance with three bail undertakings. He was sentenced to imprisonment to one month on each charge from 4 October 2013 to 3 November 2013. The applicant was also convicted of attempting to dispose of property which had been stolen. For this offence the applicant was granted a good behaviour bond for a period of 12 months under the supervision of the NSW Probation Service.
On 2 December 2013 the applicant was convicted of stealing, for which he was imprisoned for eight months commencing on 4 October 2013 and concluding on 3 June 2014. In this instance the applicant was found in a vehicle being driven by another who was known to police. Drug paraphernalia was found in the car and drugs were found in a satchel in the vehicle. The applicant was found to have a stolen computer in his possession. The applicant claimed that he was wishing to sell it to his companion. It was found that the laptop had been stolen from a break, enter and steal which had occurred during August in Campbelltown. The applicant claimed that he was unaware that it was stolen property, and thought it belonged to his partner’s sister.
The applicant was also convicted of stalking/intimidate with intent to fear physical harm for which he was imprisoned for eight months commencing on the same dates and also common assault, for which the applicant was imprisoned for two months commencing on 2 October 2013 and concluding 1 December 2013.
These charges relate to an assault committed by the applicant against his former partner committed on 26 November 2012 at a Sports Complex. At the time of this offence the AVO issued to protect such partner had been issued and was current. The parties had met to discuss child support payments. The discussion had turned aggressive. When the partner sought to walk away, the applicant placed a lit cigarette on her left shoulder causing her skin to burn. The burn mark was observed by the police. The applicant decamped and an arrest warrant was issued. Again, at the hearing, the applicant did not admit the police facts.
Another violent incident occurred with the applicant’s second partner on 17 May 2013. On this occasion the applicant grabbed the victim by the hair, tearing her hair out in his hand and threatened to break her arm. The applicant walked away whilst in possession of the victim’s backpack. The victim upset had then driven to a Tavern to seek help from a friend and contacted the police. An apprehended violence order was issued, returnable on 18 June 2013. On 9 July 2013 a final Apprehended Domestic Violence Order was made against the applicant for a period of 12 months.
On 24 January 2014 an arrest warrant was issued for the applicant arising out of his breaches of bail.
The final violent incident for which the applicant was convicted was aggravated break and enter and to commit serious indictable offence and robbery. Such offences occurred on 7 November 2015 when there was a violent altercation between the applicant and neighbour who lived in close proximity to his home. The applicant does not admit the facts recorded in the police report. However, it is obvious that much of the threats made by the applicant and his conversation were recorded when the victim telephoned 000 for assistance.
At the time of the most recent offending, the applicant was under the influence of methamphetamine. A psychological assessment recorded that the applicant was a drug user commencing with heroin in 2007 and then cannabis and methamphetamine from 2012. It also appears that such use commenced following the death of his son’s mother.
The Tribunal notes there was some explanation provided by the applicant in respect of the conduct involving his neighbour appears that the neighbour had requested the applicant to buy methamphetamine for her and gave him $3,000 in cash. Thereafter there was some disagreement. Irrespective, the trial judge took such circumstances into account and in imposing the sentence stated that the applicant was entitled to a “significant degree of leniency, due to his dysfunctional upbringing and unresolved grief, issues which hithertofore have not been addressed”. For these reasons, although the offence had a prescribed maximum penalty of 20 years imprisonment with a standard non-parole period of five years, the sentencing judge provided a substantial reduction in the sentence.
In 2016 a psychologist recorded that the applicant was “truly remorseful and contrite”. However the trial judge observed that whilst the applicant might have been “somewhat remorseful” he was unable to find him “truly remorseful” but demonstrated “some contrition” in his plea.
The applicant attributed his conduct to being involved with the “wrong crowds”. The judge considered that the applicant’s prospect of rehabilitation was “reasonable”.
However, the involvement with drugs, and the circumstances involving dispute with a neighbour, does not explain the numerous offences occurred prior to this offence which resulted in his long incarceration. The applicant was on parole at the time, he has had a history of breaches of parole, has repeatedly driven whilst disqualified, having never had a driving licence, and has had the benefit of community service orders in the past.
It appears that the applicant has failed to accept that he is required to obey the requirements of the law. Further, the applicant has been addicted to drugs. He states that he commenced using marijuana in approximate in 1999 when he was 16 years of age. He would use marijuana once per fortnight but ceased this drug approximately eight years ago. Thereafter in 2012 he commenced using heroine but denies he is a heroin addict. After his former partner died in a motor vehicle accident in June 2013 (as stated by the applicant although a sentencing report states that she died in 2012), he commenced using methamphetamine and acknowledges that he was addicted to that drug for a period. He has also acknowledged that he was a user of cocaine.
The applicant has had other matters which have brought him before the court which have not involved violence. For example, he has had convictions for providing false details to the police, travelling without a valid train ticket. He has also been convicted of having a prohibited weapon, namely a taser gun in his possession.
A pre-sentence Report provided to the Campbelltown Local Court on 2 December 2013 records that the applicant had come to the attention of the corrective services on 8 May 2002. The records indicated “satisfactory compliance with the conditions of these bonds, including successful attendance at an employment program” it was also noted that he had completed a “Violence Prevention program”. In regard to the applicant’s attitude to his offending, the report observed that the applicant did not acknowledge responsibility for all but two of the current offences with which he was then charged but he expressed a willingness to address the domestic violence issues.
Such observations were made on 28 November 2013. It is apparent that any attempts which the applicant is made to address such issues have been unsuccessful, as evidenced by the violent crimes committed against his partners over the years as detailed above.
Direction 79 contains principles as set out in clause 6.3. In particular, subclause (3) provides:
“A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia”.
Taking the factual history of the applicant’s serious offending matters into account, the fact that the violent offences were mainly committed against women, and the requirement of the principle contained in clause 6.3(3) of Direction 79, the Tribunal considers that the applicant remains a risk to the community.
Best interests of minor children: clause 13.2
Direction 79 states the requirements which must be considered with regard to minor children: see clause 13.2(1) and where there is more than one child, individual consideration must be given: see clause 13.2(3). The individual matters to be considered are set out in clause 13.2(4).
The applicant has three minor children in Australia all of whom are Australian citizens namely a daughter aged 14, a son aged 12 and a stepdaughter aged 8. However, during the hearing it became apparent that one of the children has had no contact with the applicant for many years, as referred to hereunder.
The applicant’s eldest child was born in 2008 (as stated by the applicant). Her mother and the applicant separated when the child was approximate three or four years of age. Such daughter has resided with her mother in Sydney. The evidence at the hearing demonstrates that there is a non-existent relationship between the child’s mother and the applicant. The applicant has not seen such child for seven months. The only contact which is continuing is by telephone. The applicant stated that he speaks to her twice a month. Such telephone calls are at night, lasting from lengthy calls to duration of 15 minutes.
There is no evidence that the applicant has played a major role in upbringing and the child’s mother has formed a new relationship. Her partner has a good relationship with such child. Significantly, the child’s mother offered no evidence to support the applicant’s claim that he be permitted to remain in Australia.
The second child is a product of a relationship between the applicant and a different partner. He is now 12 years of age. The child lost his mother in a car accident in 2012 (or 2013: the facts are unclear). It appears that he has suffered from some psychological problems having witnessed the accident. Such child has resided with his maternal grandparents and the applicants had no contact with him since the accident. Apparently, according to the trial judge’s comments, that child “is well cared for and settled”. The applicant has had negligible involvement with the child’s life since 2012, when the child was approximately five years of age. For all practical purposes, the welfare of this child is not a consideration.
The applicant and his current partner have resided together since November 2013. The partner has an 8 year old daughter with whom the applicant stated in his application that he has a “good” relationship. However, the applicant does not see either the mother or the child.
The Tribunal accepts that it would be in the best interests of the eldest child of the applicant if the applicant were to remain in Australia. However, the Tribunal notes that the current association between the applicant and the child is tenuous.
Expectations of the Australian community: clause 13.3
In view of the long history of convictions, the fact that the applicant had the benefit of bonds and of community service orders, thereby affording him a “second chance” on several occasions, and his repeated reoffending, he has shown failure to acknowledge the requirements of the Australian community. He has breached paroled conditions and failed to appear in court when called up in relation to a bail undertaking. He has engaged in several offences such as theft, intimidation and assaults. Such offences have occurred with increasing seriousness.
It should also be observed that whilst the applicant has been serving time in jail, he has been involved in violent conduct which has resulted in additional disciplinary action being taken against him. The records show that on 11 December 2015 the applicant was involved in a fight or other physical combat. The applicant stated during the hearing that it was an argument over racial issues. Irrespective, the applicant broke the jaw of another prisoner. The applicant considered that such an injury was “not a serious injury”.
Further, the applicant was found to be in possession of an offensive weapon on 25 January 2015. The weapon was a makeshift sharpened weapon. The applicant denied knowledge of such weapon but was confined to his cell for two days.
In view of the history of offending, the Australian community would expect that the applicant’s Visa should be cancelled.
OTHER CONSIDERATIONS
Strength, nature and duration of ties: clause 14.2
The applicant has resided in Australia for 25 years and regards Australia as his home. Accordingly the community would afford some higher tolerance of his criminal conduct.
The applicant was educated to year 10 when he left school to find employment. He initially worked as a cabinetmaker and remained in full-time employment until 2012. He thereafter worked as a heavy bodybuilder from 2005 to 2013 he has accordingly been in gainful employment for this period, although there is some doubt concerning the year when he ceased working.
The applicant’s current partner is an Australian citizen. They have a close relationship although there is no evidence of any family visits to the prison in which the applicant was incarcerated.
The applicant has a large number of relatives in Australia namely his biological mother who resides in Sydney with nine other children. However, the biological mother gave the care of the applicant to her parents at his birth. He was raised by his grandparents until the age of 13 and thereafter adopted by his aunt. The applicant’s biological mother suffers from ill-health and dementia and she apparently requires some financial support from the applicant.
The applicant’s grandparents are Australian citizens. His grandfather passed away in 2007 and his grandmother is suffering from dementia. The applicant wishes to remain close to his grandmother for the remainder of her life.
The applicant’s 15 siblings from his biological and adoptive family, six uncles or aunts and 23 nieces and nephews and one cousin are Australian citizens or long-term residents in Australia.
The Tribunal notes a letter written by the applicant, addressed “To whom it is concerned”. In such letter the applicant states that he has lived in Australia for most of his life and does not wish to be returned to a country with which he has no recent connections. The letter refers to the loss of his partner and of the fact that his children would suffer without a father.
The applicant also wrote a statement, undated in which he refers to the fact that his mother is ill and bedridden. The applicant states that he regards himself as an Australian, having arrived at such an early age. He states that he has rehabilitated himself and that his period in detention has caused him to realise and appreciate his conduct. He states that he believes everyone deserves a second chance.
A welfare officer has provided a letter dated 12 July 2018. He talks of the applicant’s “exceptional behaviour” which he has displayed during the time he knew him. He refers to the fact that the applicant participated in many worthwhile and constructive activities; that he had taken on a substantial role in a peer to peer mentoring program and devoted much of his personal time to other inmates. A Certificate of Appreciation that was issued to the applicant, signed by the Superintendent and an Inspector at Christmas Island Detention Centre records the applicant’s positive behaviour in immigration detention and his contribution to the good order of the detention centre.
The Tribunal notes the letter also written to the Minister by the applicant in which the applicant states that he acknowledges some of the “bad” things he has done and the fact that he has always tried to work in gainful employment as a heavy vehicle bodybuilder. The Tribunal also notes the letters provided in support of the applicant’s application from his current partner, aunt, sister, two of his relatives, from his sister in law and brother, niece and from his high school friend. Such letters and references speak as to the good qualities of the applicant, and of his genuine remorse at his conduct.
The Tribunal also notes a letter written by the applicant to “NCCC Decision [sic] maker” prepared by the applicant. Such letters restate the long period during which the applicant has resided in Australia, of the tragic accident involving his partner in 2012/2013, and of the impact that his removal would have from Australia.
The sister of the applicant has provided considerable detail concerning the fact that the applicant was raised by her grandparents since birth; that the applicant has resided in Australia since he was a young child and he has no other place which he regards as his home. She states that the applicant is very remorseful and is capable “for change”. She states that the applicant has no family in New Zealand and pleads for a second chance.
The Tribunal accepts that the applicant has substantial connections and ties to Australia.
Extent of impediments if removed: clause 14.5
The applicant remains a New Zealand citizen. There are no known health issues associated with the applicant. The applicant will no doubt suffer the separation from his family, especially his children, and also his extended family, if he were relocated. The applicant has skills in building removal and relocation. An undated letter from a prospective employer, addressed to “the honourable Judge/Magistrate”, which bears a facsimile date of 4 August 2016, offers the applicant employment once he ceases prison life. A letter from a former employer dated 25 May 2016 speaks of the applicant’s work ethic that he shows great leadership skills and works well with others, was very honest, reliable and punctual and was an asset to the company. Such testimonials indicate that the applicant should be able to find employment in New Zealand.
The applicant has skills which would enable him to find employment in New Zealand. No issues of non-refoulment arise in this instance. Nor are there any business interests in Australia involving the applicant.
OBSERVATION
The applicant has a long history of traffic offences. Whilst these, of themselves, would not weigh heavily against the applicant, such a record indicates a lack of regard for Australian law. In Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 at [45] the Tribunal stated:
“The Applicant’s driving offences may, at first blush, be considered relatively minor when viewed against the balance of his history. However, the theme of attendant recklessness and indifference to laws and rules governing the operation of a motor vehicle is, in and of itself significant. Indeed laws that protect road users “go to the essential safety of the community”.…. But, his failure to understand right from wrong when operating a motor vehicle – be it drinking and driving, driving without a license, or driving an unregistered vehicle – can only lead me to conclude that this component of his history further confirms the seriousness of his offending and potential risk to the community”.
The applicant is the user of methamphetamine and other drugs. His offending has become increasingly violent over the years. He represents an unacceptable risk of harm to the Australian community. Despite the applicant’s claims that he is now rehabilitated, the offending by the applicant has proceeded over many years, and the courts have extended to him the benefit of repeated bonds to be of good behaviour. The more recent offending suggests that the applicant is becoming more violent. Whether this is due to the effect of drugs, or whether it is the applicant’s disposition, is not known. The Tribunal concludes that the protection of the Australian community outweighs the best interests of his children.
As already referred to, the applicant provided statements to the Tribunal, and the letter of the welfare officer dated 12 July 2018. The Tribunal notes that the applicant’s violent offending resulted from situations of conflict. The welfare officer gives no indication of any circumstances that arose at the detention centre which the applicant is likely to face in the community involving conflict.
The Tribunal has taken all the documents provided by the applicant into consideration when making its decision. However, the information the applicant provides confirms that he refuses to take responsibility for his criminal offending. His statements contained the following statement:
“So my criminal history is what I’ve learnt from the Australian community.”
The applicant demonstrated a lack of insight into his offending. During the hearing, his attempts to distance himself from the facts as recorded and which led to his convictions on several occasions, was disconcerting. The respondent states that the applicant is an unreliable witness. The Tribunal found that the respondent’s answer to some of the questions asked of him demonstrated that he had either a very poor knowledge and recollection of the events; had been impaired by drugs, or is otherwise unreliable as a witness.
CONCLUSION
The Tribunal finds that the factors in support of revocation relating to his family do not singularly or cumulatively outweigh the primary considerations, and the factors weighing against the exercise of discretion under section 501CA(4) of the Act to revoke the applicant’s mandatory Visa cancellation.
Accordingly the Tribunal finds that the correct and preferable decision is the decision made by the delegate to refuse to revoke the mandatory cancellation.
I certify that the preceding 85 (eighty -five) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy OAM QC, Deputy President
................................[sgd].........................................
Associate
Dated: 13 May 2019
Date(s) of hearing: 08 April 2019 Applicant: In person Solicitors for the Respondent: A Keevers - Sparke Helmore Lawyers
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