Leau and Minister for Immigration and Border Protection (Migration)
[2017] AATA 918
•15 June 2017
Leau and Minister for Immigration and Border Protection (Migration) [2017] AATA 918 (15 June 2017)
Division:GENERAL DIVISION
File Number: 2017/2005
Re:Richard Leau
APPLICANT
Minister for Immigration and Border ProtectionAnd
RESPONDENT
DECISION
Tribunal:Dr L Bygrave, Member
Date:15 June 2017
Place:Sydney
The Tribunal affirms the decision under review.
................................[sgd]....................................
Dr L Bygrave, Member
CATCHWORDS
IMMIGRATION – Migration Act 1958 – mandatory visa cancellation – substantial criminal record – character test – risk of re-offending – protection of the Australian community – best interests of minor children – expectations of the Australian community – decision affirmed.
LEGISLATION
Migration Act 1958 (Cth) ss 499(2A) 501(3A), 501(6)(a), 501(7), 501CA(4),
CASES
Divane and Minister for Immigration and Border Protection [2016] AATA 728
Re Sharma and Minister for Immigration and Border Protection [2015] AATA 608
SECONDARY MATERIALS
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Dr L Bygrave, Member
15 June 2017
INTRODUCTION
The applicant, Mr Richard Leau, is a 33 year old citizen of New Zealand who first arrived in Australia in 1992. He has resided in Australia since 1992 on a TY Subclass 444 Special Category (Temporary) visa.
The applicant’s visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act) on 20 May 2016 after he was sentenced to three years and six months imprisonment on 1 February 2016.
On 6 June 2016, the applicant lodged a Request for Revocation of a Mandatory Visa Cancellation Under S501(3A).
The Minister’s delegate decided not to revoke the cancellation decision on 29 March 2017. The applicant subsequently lodged an application with the Administrative Appeals Tribunal seeking a review of this decision.
The matter was heard in Sydney on 1 June 2017. The applicant attended the hearing by video-conference and telephone from Christmas Island. He did not have legal representation.
BACKGROUND
The applicant was born in New Zealand in 1984 and travelled to Australia with his grandparents, who had adopted him, when he was eight years old.
The applicant told the Tribunal he completed Year 10 at high-school and worked as a cabinet maker, labourer, welder and heavy vehicle body builder for approximately 12 years.
There is limited information before the Tribunal about the applicant’s childhood and family. Sentencing remarks by Judge English on 1 February 2016 referred to a psychological assessment and stated:
He grew up in a dysfunctional environment, subjected to parental rejection, abandonment and physical and verbal abuse and, as a result he became homeless at the age of 14. He was one of six children. His parents separated prior to his birth and he never met his father and he does not know his identity.
His mother was in a relationship with another man and she and that partner had nine children together, 15 children all up. He was given to his maternal grandparents when he was about 12 months old. He was the only child given away by his mother and, as a result, he felt rejection and abandonment. He had limited contact with his mother, his stepfather or his siblings. His grandparents were good to him but imposed physical discipline, in keeping with their culture.
His grandparents moved to Queensland and he was required to move back to his mother’s house when he was about 13 years of age. His stepfather, he says, was physically and verbally abusive to him. His stepfather was an alcoholic. His mother was verbally abusive towards him and he suffered severe emotional abuse from her. As a result, he left home at 14, house-hopping amongst friends and he has never returned to reside with his mother. He has no contact with her or, indeed, any other member of his family. His grandfather died about two years ago. His grandmother suffers from dementia.[1]
[1] Exhibit G-G3, pp 41-42.
Criminal record
The applicant has an extensive criminal record dating from 2000 to 2016. Some of the criminal offences described in his National Police Certificate dated 23 March 2016[2] are set out below:
·8 May 2002: conviction in the Campbelltown Local Court: two counts of ‘destroy or damage property’ – sentenced to 12 month good behaviour bond for each offence, fined $500 for the first count and $200 for the second count.
·4 May 2005: conviction in the Campbelltown Local Court: ‘destroy or damage property <= $2000-t2’ – fined $300 plus court costs; three counts of ‘common assault-t2’ – sentenced to complete 150 hours of community service for each offence.
·6 March 2007: conviction in the Campbelltown Local Court: three counts of ‘common assault-t2’ – sentenced to complete community service order of 90 hours for each count.
·8 August 2012: conviction in the Campbelltown Local Court: ‘common assault (dv)-t2’ – sentenced to eight days imprisonment commencing 1 August 2012 and concluding 8 August 2012; ‘destroy or damage property (dv)’ – section 10a conviction with no other penalty; ‘fail to appear in accordance with a Bail Granted undertaking’ – sentenced to eight days imprisonment commencing 1 August 2012 and concluding 8 August 2012.
·2 December 2013: conviction in the Campbelltown Local Court: ‘steal from the person’ – sentenced to eight months imprisonment commencing 4 October 2013 and concluding 3 June 2014; ‘stalk/intimidate intend fear physical etc harm (domestic)-t2’ – sentenced to eight months imprisonment commencing 4 October 2013 and concluding 3 June 2014; ‘common assault (dv)-t2’ – sentenced to two months imprisonment commencing 2 October 2013 and concluding 1 December 2013; three counts of ‘fail to appear in accordance with a Bail Granted undertaking’ – sentenced to one month imprisonment commencing 4 October 2013 and concluding 3 November 2013; ‘attempt dispose property-theft=serious-indictable <= $5000-t2’ – 12 months good behaviour bond.
·22 October 2014: conviction in the Campbelltown Local Court: ‘attempt dispose property-theft=serious-indictable <= $5000’ – sentenced to three months imprisonment commencing 10 July 2014 and concluding 10 October 2014; ‘possess or use a prohibited weapon without a permit – t2’ – sentenced to three months imprisonment commencing 10 August 2014 and concluding 9 November 2014.
·1 February 2016: conviction in Campbelltown District Court: ‘aggravated break and enter and commit serious indictable offence – people there’ – sentenced to three years and six months imprisonment.
[2] Exhibit G-G3, pp 34-36.
The applicant also has a substantial record of traffic and road offences including unlicensed driving, and driving an unregistered and uninsured vehicle.
RELEVANT LEGISLATION AND ISSUES
The power to revoke a visa cancellation
Pursuant to s 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test. A person is taken to not pass the character test if he or she has a ‘substantial criminal record’. A person who has been sentenced to a term of imprisonment of 12 months or more has a ‘substantial criminal record’ as defined in ss 501(6)(a) and (7) of the Act.
Under s 501CA(4) of the Act, the Minister (and therefore the Administrative Appeals Tribunal on review) has the discretion to revoke the original cancellation decision if the Minister is satisfied that the person passes the character test or ‘there is another reason why the original decision should be revoked’.
The applicant has a ‘substantial criminal record’ and so does not pass the character test.
I must therefore consider whether there is another reason to revoke the original cancellation decision.
When considering whether to revoke the cancellation decision, I am required under s 499(2A) of the Act to have regard to the guidance contained in Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction).
The Direction sets out the policy of the government and includes a number of introductory statements including the expectation that non-citizens will obey Australian laws and behave in accordance with Australian community values and standards if they wish to retain the privilege of coming to or remaining in Australia.
The Principles set out in cl 6.3 of the Direction provide a framework to approach deciding whether to cancel a visa. The Principles state:
(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. 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.
(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 vulnerable members of the community such as minors, 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. In these circumstances, even other strong countervailing consideration may be insufficient to justify not cancelling or refusing the visa.
(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. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(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 should be allowed to come to, or remain permanently in Australia.
(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 in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Informed by the Principles, I must take into account the factors set out in Part C of the Direction in determining whether to revoke a mandatory cancellation of a non-citizen’s visa under s 501CA of the Act. The primary considerations are:
(a)protection of the Australian community from criminal and other serious conduct;
(b)best interests of minor children in Australia affected by the decision; and
(c)expectations of the Australian community.
Part C also sets out other considerations which must be taken into account. Other considerations relevant to this matter are:
(a)strength, nature and duration of the applicant’s ties to Australia; and
(b)extent of impediments if the applicant is removed from Australia.
Clause 8(2) of the Direction stipulates that information and evidence from independent and authoritative sources should be given appropriate weight in applying the primary and other considerations.
Protection of the Australian community
Clause 13.1(2) of the Direction states the Government’s commitment to protecting the Australian community from harm by non-citizens and requires that I consider:
(a)the nature and seriousness of the applicant’s conduct to date; and
(b)the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.
I will first consider the nature and seriousness of the applicant’s conduct to date.
The applicant’s criminal record, which is set out in part in paragraph 9, shows he committed an extensive number of offences between 2002 and 2016. Police reports also show that the applicant first offended and was cautioned by police on 18 December 2000.[3]
[3] Exhibit R2.
The applicant’s offences include violent criminal behaviour. He was convicted of common assault in 2005, 2012, 2013 and 2016. Magistrate Rabbidge, in the Campbelltown Local Court on 2 December 2013, observed the applicant had a history of domestic violence.[4] This is further confirmed in police reports which describe the applicant violently assaulting three of his ex-partners.
[4] Exhibit G-G3, p 48.
In sentencing remarks on 1 February 2016, Judge English noted that Mr Leau pled guilty to ‘one count of aggravated break and enter and commit serious indictable offence, namely intimidation’. Judge English described Mr Leau’s offence, which was directed at his female neighbour and occurred in front of her six year old son, and stated:
It appears to have been an offence committed against a background of animosity between the victim and the offender, although the reason for that animosity is speculative at best. Whatever gave rise to that conflict did not give the offender cause to break into the victim’s home and intimidate her in the way he did, particularly when there was a young boy present. The fact that he was affected by drugs may have heightened her fears.[5]
[5] Exhibit G-G3, p 45.
Judge English concluded that ‘whilst he [the applicant] might be somewhat remorseful, I am unable to find he is truly remorseful’.[6]
[6] Exhibit G-G3, p 45.
The applicant did not dispute his criminal record at the Tribunal hearing.
Considering the relevant factors set out in cl 13.1.1 of the Direction, I find that:
·The applicant’s offences include committing violent offences against women. The applicant was sentenced to three years and six months imprisonment for his most recent offence.
·The applicant’s criminal offending has involved 30 offences over 14 years and reflects a pattern of repeat offending.
·There is no information before the Tribunal that the applicant has committed any offences since his visa cancellation or has ever provided false or misleading information to the Department.
I am satisfied that the frequency and cumulative effect of the applicant’s criminal offending is a matter of serious concern. I find that the nature and seriousness of his offending weighs heavily against him.
I must also consider the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.
The sentencing remarks of Judge English on 1 February 2016 noted:
[The applicant] has convictions for destroying or damaging property, common assault, driving offences, failing to appear, steal from the person, stalk or intimidate, attempting to dispose of stolen property and possessing a prohibited weapon. He has been fined, he has been ordered to perform community service work and has been placed on good behaviour bond is and he has been called up for breaching those bonds. He has previously served time in custody.[7]
[7] Exhibit G-G3, pp 40-41.
At the Tribunal hearing, the applicant provided no explanation for his criminal behaviour, except that he was ‘young and dumb’ and would not offend again. Given his history of offending since 2000, I am not persuaded that the applicant will not reoffend should he be released into the Australian community.
In considering the nature of the harm and potential risk to the Australian community if the applicant were to reoffend in the future, I am mindful of the nature and seriousness of his past criminal offences and particularly his offences of common assault and domestic violence.
On balance, I find that the protection of the Australian community weighs heavily against revoking the cancellation decision.
The best interests of minor children in Australia affected by the decision
Clause 13.2(4) of the Direction sets out the factors that I must consider in relation to whether revoking the cancellation decision is, or is not, in the best interests of a child affected by the decision. Relevant to this matter are the nature and duration of the relationship, the extent to which the applicant is likely to play a positive parental role, the likely effect any separation would have on the child, and whether there are other persons who already fulfil a parental role.
The applicant has two minor children who are Australian citizens. As these children are under the age of 18 years, I must consider their best interests.
The applicant has a daughter who is 14 years old. She lives with her mother and has done so since 2005. The applicant told the Tribunal he speaks to his daughter by telephone approximately once a month and last saw her in person seven years ago.
The applicant has a son who is eight years old and has lived with his maternal grandparents since his mother died in 2012. The applicant told the Tribunal he has had no contact with his son since 2012.
Having regard to the Direction, I note that the applicant does not reside with either of his children. He has not seen his daughter since she was seven years old, although he speaks with her by telephone. The applicant has had no contact with his son since he was three years old. The evidence before the Tribunal is that both the applicant’s daughter and son have other people in their life who are fulfilling – and have fulfilled for many years – a parental role on a daily basis.
Based on the evidence before the Tribunal, I find that the best interests of minor children neither weigh for nor against revoking the cancellation decision.
The expectations of the Australian community
The Direction states that the Australian community expects non-citizens to obey the law. It also notes that non-revocation may be appropriate because the nature of the character concerns or offences are such that the community would expect that the person should not hold a visa (cl 13.3(1)).
Having regard to cl 6.3(5) of the Direction, which states in part that ‘…Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life’, I am mindful that the applicant has lived in Australia since he was eight years old. The Australian community would anticipate a nuanced approach to considering the extent to which the applicant is a member of the Australian community even though he is not a citizen. It would seek to consider any positive contributions the applicant has made to society, such as employment, community activities and/or family relationships; and weigh this against his adverse and antisocial behaviour.
At the Tribunal hearing, the applicant said he had been employed for over 12 years in positions as a cabinet maker, labourer, welder and heavy vehicle body builder. He also explained his role as a father to his daughter and son.
The applicant provided character references to support his claims. These include a reference from a past employer, and character references from four family members and two ex-partners. I place limited weight on these references because the applicant told the Tribunal that his family members and previous employer were unaware of the full extent of his criminal offending.
Apart from his employment, there is little information before the Tribunal about the applicant making a positive contribution to Australia. While I accept the applicant’s contention that he wants to maintain his relationship with his children, I note that he will be able to continue his telephone contact with his daughter from New Zealand.
The applicant’s criminal record has been extensively described in my consideration of protection of the Australian community. I do not believe his record would be viewed in any positive way by the Australian community.
I accept the applicant grew up in difficult circumstances, as set out in paragraph 8 above. While these circumstances may have contributed to the applicant’s subsequent behaviour, they do not excuse or mitigate his criminal offending.
I also have regard to a previous Tribunal decision, which states domestic violence is conduct that is ‘fundamentally inconsistent with the standard of behaviour expected by the Australian community and usually weighs heavily against an individual being of good character’.[8] I note the Australian community and the Australian Government:
…takes a very serious stance on domestic violence in particular. They pointed to the numerous and costly measures that it is currently taking to address domestic violence in Australia. Further, in a media release issued in September 2015, Prime Minister Turnbull and a number of other government Ministers expressed the view that domestic and family violence has a devastating impact on the Australian community; that domestic, family or sexual violence is unacceptable in any circumstances, and that the issue must be elevated to our national consciousness.[9]
[8] Re Sharma and Minister for Immigration and Border Protection [2015] AATA 608 at [37].
[9] Divane and Minister for Immigration and Border Protection (Migration) [2016] AATA 728 at [57].
On balance, I am satisfied the third primary consideration counts against revoking the mandatory cancellation under s 501CA of the Act.
Other considerations
While the primary considerations carry particular weight, the Direction acknowledges at cl 14 that other considerations must be taken into account where relevant.
There are no international non-refoulement obligations in this matter. I was not provided with any evidence about the impact of the applicant’s removal on any Australian business interests. There is no evidence of any impact on victims from the applicant’s criminal behaviour.
I now consider the strength, nature and duration of the applicant’s ties to Australia and the extent of impediments if he is removed to New Zealand.
The applicant provided written statement on 12 May 2017, which stated he has lived in Australia for 25 years, ‘pretty much all [his] life’.[10] He also wrote about his relationship with his children and his mother, who is in hospital and going into palliative care. At the Tribunal hearing, the applicant said that his family and friends all reside in Australia and he does not know anyone in New Zealand.
[10] Exhibit A1.
I find that the consideration of the applicant’s ties to Australia weigh in his favour.
The impediments to removing the applicant from Australia rely on his detachment from his children, family members and friends. The applicant has no medical conditions that could not be treated within the New Zealand health system. There is no information before the Tribunal that he would not be able to live and work in New Zealand.
I therefore find that there are no substantial impediments, apart from being removed from his children and mother, preventing the applicant commencing a life in New Zealand.
CONCLUSION
I have already indicated the first and third primary considerations weigh strongly against the applicant. The second primary consideration neither weighs for nor against the applicant.
In regard to the other considerations, the applicant’s ties to Australia weigh in his favour and the impediments weigh against him. However, the weight I give these other considerations is low and does not outweigh the primary considerations.
In these circumstances, it is not appropriate for me to revoke the refusal of visa decision.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member
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Associate
Dated: XX June 2017
Date of hearing: 1 June 2017 Applicant: In person Solicitors for the Respondent: Ms P Richards, Clayton Utz Lawyers
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