Leau and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2021] AATA 4097

Leau and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4097 (9 November 2021)

Division:GENERAL DIVISION

File Number(s):      2017/2005

Re:Richard Leau

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM QC

Date:9 November 2021

Place:Sydney

The decision under review is affirmed.

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Deputy President B W Rayment OAM QC

CATCHWORDS

MIGRATION – re-determination of matter on remittal from the Federal Court – applicant’s visa cancelled pursuant to s. 501 of the Migration Act 1958 (Cth) – cancellation not revoked – applicant does not satisfy the character test – issue for determination: whether there is another reason why the cancellation of the applicant’s visa should be revoked – provisions of Direction 90 considered – primary and other considerations assessed - applicant’s background and criminal history considered – decision under review affirmed.

LEGISLATION

Migration Act 1958 (Cth)

SECONDARY MATERIALS

Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Deputy President B W Rayment OAM QC

9 November 2021

1. The applicant arrived in Australia from New Zealand when he was aged 8, and had a Special Category (Subclass 444) visa, which was the subject of mandatory cancellation on account of his criminal record. A delegate refused to revoke the cancellation and the matter was brought to the Tribunal for review. He is now 37. He has been in gaol or immigration detention since 4 December 2014, now a total of almost 7 years.

2. The applicant was self-represented before the Tribunal, and Ms Donald, a partner of Sparke Helmore Lawyers represented the Minister. An earlier decision of the Tribunal was set aside by consent by the Federal Court and a subsequent decision of the Tribunal was also set aside by consent by the Federal Court and these are my reasons for decision on the re-determination.

3. The applicant does not pass the character test, having been sentenced on 1 February 2016 to a term of three years and six months imprisonment, with an 18 month non-parole period. The delegate had power to revoke the cancellation of the applicant’s visa under s.501CA of the Migration Act, 1958 (the Act). The question before the delegate and now before the Tribunal is whether there is another reason why the cancellation of the applicant’s visa should be revoked, within the meaning of s.501CA(4)(b)(ii) of the Act.

4. Judge English, who sentenced the applicant in February 2016, described his background as follows: 

   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

   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. He would like to know about her welfare but says that is not

   possible as he has no contact with any other family member.

   He attended school as best he could. He was a below average student.

   He completed Year 10, despite having left the family home at the age of 14.

   He left in order to find employment. He says he was never in trouble at school,

   He commenced to work for a cabinetmaker and he enjoyed the work. He

   then obtained work learning now to weld. He remained in fulltime employment

   up until 2012.

   He has had two long-term relationships, one that lasted four years and

   resulting in the birth of a daughter who is now 11 and one that lasted seven

   years and resulted in the birth of a son who is now nine. His first relationship ended but he has maintained contact with his daughter, although he has had no contact with her whilst he has been in custody. The relationship with his son’s mother he says was a positive relationship. Unfortunately, she died in a car accident in 2012. Thereafter, he suffered a significant deterioration in his mental health. In the opinion of the psychologist he is suffering from unresolved grief and bereavement pertaining to her death.

   He then left his employment, commenced to abuse drugs and began to

   lead a negative lifestyle. His son went to live with his partner’s parents, where he remains. He is well cared for and settled in that environment. He is hopeful of improving his own circumstances and eventually regaining custody of his son.

   Prior to going into custody he formed a relationship with another woman

   and is hopeful of resuming that relationship when he leaves gaol. She lives in

   Grong Grong with her family. She lives a pro-social life and, in his opinion, is a positive influence for him.

   He says he disengaged from pro-social peers following the death of his

   partner in 2012. He began to socialise with antisocial peers but he no longer

   has any contact with them and is motivated to refrain from socialising with

   such persons in the future.

   He apparently commenced to use heroin in 2007, using twice a week. It

   was costing him up to $150 a week. He ceased using after six months. His

   habit was escalating and costing him more than he could afford and he was

   experiencing serious symptoms of withdrawal. He commenced to use

   cannabis and ice following the death of his partner. His habit reached a $100

   a day habit and continued up until he went into custody. He was using

   cannabis to help him come down off the ice. He was, in effect, self-medicating

   : with these substances. He denies any problems with alcohol abuse or

   gambling. He has never engaged in drug and alcohol counselling, he does not

   see the need to, but he is open to attending NA in order to have support in the

   community to maintain sobriety.

   He says he first experienced symptoms of depression following the death

   of his partner. In the opinion of the psychologist, he probably suffered from

   mood disruption, given his dysfunctional upbringing also.

5. The current direction made under s.499 of the Act is applicable to these proceedings is Direction 90. The applicant made representations to the Minister and to the Tribunal on review. Decision-makers are not limited to the considerations expressly mentioned in Direction 90 and may take account of any matter which may be relevant in deciding whether to revoke the mandatory cancellation.

6. At Annexure A to the respondent’s Statement of Facts, Issues and Contentions, the criminal history of the applicant is correctly set out. It is as follows:

Date and location of conviction (offence date)	Offence	Court result
8 May 2002 Campbelltown Local Court (28 February 2002)	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 $200, 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 Local Court (31 October 2004)	Use uninsured motor vehicle	Fine of $300
	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 (26 December 2004)	Destroy or damage property <= $2000 (T2)	Fine 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 (26/12/2004)	Common assault (T2)	(Call up) Community service order of 90 hours
	Common assault (T2)	(Call up) Community service order of 90 hours
	Common assault (T2)	(Call up) Community service order of 90 hours
9 May 2007 Campbelltown Local Court (22 March 2007)	Never licensed person drive 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 (12 January 2012)	Never licensed person drive vehicle on road – 2nd offence	Fine of $600, Court costs of $81, and disqualified from driving for 3 years commencing on 8 February 2012.
8 August 2012 Campbelltown Local Court (4 March 2012)	Fail to appear in accordance with bail undertaking	Imprisonment for 8 days commencing 1 August 2012
	Common assault (dv)	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 (17/05/2013) (09/07/2013)	Steal from the person	Imprisonment for 8 months, commencing 4 October 2013, with a non-parole period of 2 months and subject to conditions
	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 2 months, commencing 2 October 2013
	Fail to appear in accordance with bail undertaking (Three counts)	On each count, imprisonment for 1 month commencing 4 October 2013.
	Attempt dispose property – theft <= $5000 – t2	Section 9 bond, with 12 months supervision order
22 October 2014 Campbelltown Local Court (10 July 2014)	Attempt dispose property – theft <= $5000 – t2	(Call up) Imprisonment 3 months, commencing 10 July 2014
	Possess or use a prohibited weapon without permit	Imprisonment 3 months, commencing 10 August 2014
1 February 2016 Campbelltown District Court (31 March 2014)	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.

1. Ms Donald closely cross-examined the applicant on details of the criminal history, which began when he was 18 with the offences for which he was convicted on 8 May 2002. Thereafter, his longest period with convictions was from May 2007 until 2012, when he was first sentenced to a short term of imprisonment. Then between 2013 and 2016 he was sentenced to a number of terms of imprisonment, culminating in the final sentence of 1 February 2016.

2. He has not married. He has two children by different partners, and one stepchild. His extended family in Australia is very large, and includes some 23 nephews and nieces. Several of his relationships ended in circumstances of family violence. He has had a drug problem until his incarceration and immigration detention. Sadly, he has untreated psychiatric disorders, and whatever the outcome of these proceedings, unless he obtains professional help, he may reoffend in Australia or New Zealand.

3. Political views differ in Australia and New Zealand about whether to deport foreign nationals with criminal records between the two countries. Direction 90 makes no distinction between deportation to New Zealand and deportation to elsewhere. A long-term New Zealand resident with criminal offences would not be likely to be deported to Australia. In the past, this country has adopted different policies about deportation to New Zealand. Speaking generally, such a consideration is of very doubtful relevance to a decision-maker or this Tribunal, and such a large question is primarily, if not only, for representative government dealing with bilateral relations with New Zealand, rather than a delegate or this Tribunal, acting under the Migration Act.

4. The terms of Direction 90 are published and likely well known to readers of these reasons, and instead of rehearsing its terms, I will instead go directly to a consideration of the application of its terms, understood in the light of the principles stated for the guidance of decision-makers.

5. Considerations which Direction 90 describes as primary (mandatory) considerations are: (a) protection of the Australian community from criminal or other serious conduct; (b) whether the conduct engaged in constituted family violence; (c) the best interests of minor children in Australia affected by the decision; and (d) expectations of the Australian community.

   Protection of the Australian community

6. The crimes of which the applicant has been convicted and for which there is more detailed evidence before the Tribunal include the following:

   (a)There were three common assaults against the mother of the applicant’s elder child (a daughter) in 2004.

   (b)There was a family violence offence in 2012, with the applicant on several occasions physically molesting the mother of his second child (his son).  He had had an on again/off again relationship with the victim over six years. In the incident, he broke the window of her father’s car in which the victim was sitting.  The victim was greatly distressed. In some respects, in cross-examination, the applicant denied the facts alleged by the victim and included in the police statement of facts. For this offence, the applicant was sentenced to a term of 8 days imprisonment on 8 August 2012. An apprehended violence order was issued against the applicant.

   (c)In November 2012, while the apprehended violence order was in place, the same victim and the applicant met again with their four-year-old son. According to a police statement of facts, believing that the victim had started a relationship with another man, the applicant put a lighted cigarette on her shoulder and injured her thumb.  The applicant denied placing the lit cigarette on the victim’s shoulder. The applicant commented that they both smoked heroin together at times. This matter led to no court proceedings. In June 2013, the lady in question died in a car accident and the charges were withdrawn.

   (d)Ms Donald then put to the applicant a police statement of facts relating to an incident of domestic violence which occurred in February 2013 when the applicant is said to have grabbed another lady and threw her into the walls of her home. He had been in an intimate relationship with the lady for seven months. In May 2013, she drove him in her vehicle and he grabbed her by the hair on top of her head and pulled a chunk of her hair out, and got out of the car with her backpack. This led to the court proceedings of 2 December 2013, by which date the applicant had been in custody for about 2 months. He was sentenced to a term of imprisonment of 8 months, with a two months non-parole period, meaning that he was released on 3 December 2013 but then subject to parole for 6 months. The applicant pleaded guilty. In evidence the applicant denied grabbing her hair and admitted grabbing her arm and said that the victim was refusing to let him get out of the car. The applicant also said that the backpack belonged to him.

   (e)The sentencing magistrate does not recount the facts said to have been admitted by the applicant, nor any findings made by the Court. The applicant told Corrective Services that he was not guilty of the offences, but was found guilty. I note that the records about this offending are very unclear.

   (f)In 2016 Judge English sentenced the applicant to a term of imprisonment of 3 years and 6 months with a non-parole period of 18 months, on his pleading guilty to one count of break and enter and commit intimidation. The victim was a female neighbour of the applicant and his then partner. According to the sentencing remarks of Judge English there was a dispute between the victim and the applicant about money, which the victim alleged had been stolen from her by the applicant. On 26 and on 28 March 2014, the victim called the police to report threats made by the applicant. At 8 pm on 31 March 2014, the applicant went to the victim’s premises and found the applicant and his girlfriend at the front door, and he abused her verbally. She went inside and told the applicant to go away. The applicant forcibly entered the victim’s house, where the victim’s child had been sleeping, and while the victim was protecting her child. At that time since the victim had called triple 0, speech by the applicant was recorded, including abuse and threats. The applicant damaged the rear laundry door and doorframe in order to gain entry to the house, later noted by police. The presence of the victim’s son at the scene at the time was treated as an aggravating circumstance of the offending. At the time of the offending the applicant was under the influence of ice. He was on parole at the time of the offence. Judge English described the offence as falling below the mid- range, for which the maximum sentence was 20 years imprisonment. She said his criminal antecedents disentitled him to leniency but were not such as to aggravate the matter.

   (g)The applicant advanced before the Tribunal the explanation for his behaviour that the neighbour had given him money for the purchase of marijuana and that the dealer had stolen it. He said that the arrangement to buy marijuana was made while he shared a joint with the neighbour. He said that the neighbour had sent five men to his house who confronted his girlfriend and child, to try to collect the money. He denied some details of the break and entering and said that he entered the house only by putting his foot in the door.

   (h)The applicant’s version of the facts is largely inconsistent with the essential ingredients of the offence found by Judge English, and I act on the basis of the findings made by the Judge. I treat the statements of the applicant about the background to the offence as possible facts which may or may not be correct, not justifying or diminishing the criminality of the behaviour of the applicant.

7. Two aspects of Judge English’s sentencing remarks should be noted. First, her Honour said that:

   His prospects for rehabilitation I find are reasonable if he obtains psychiatric treatment and attends psychotherapy to treat his depression and to deal with his unresolved issues arising from his childhood and the death of his former partner and, more importantly, he learns to abstain from using illicit drugs. Whilst he may well consider he does not need drug and alcohol counselling, the experience is that all those who abuse drugs are in need of counselling to assist them to learn the skills they need to prevent relapse in times of stress and trauma in the future. If he is able to commit to treatment and attend drug and alcohol counselling, then the likelihood of him re-offending will be significantly reduced.

8. This is a matter to which I will revert.

1. In the second place her Honour said:

   I am asked to make a finding of special circumstances and I will do so. This offender is in need of an extended period of parole to enhance his prospect for rehabilitation and to assure that he attends for psychological and psychiatric assessment and he adheres to the treatment regimes recommended and attends any other programs which the Community Corrections consider appropriate to enhance his prospects for leading a law abiding life.

2. Those remarks failed to take into account that the applicant’s visa was likely to be the subject of mandatory cancellation, with the result, as things turned out, that he did not enjoy a prolonged, or any, period of parole.

3. Ms Donald put to the applicant Serco records of abusive statements made to Seco staff as a result of which the records state that he was moved between sections of the Christmas Island detention centre. The applicant denied the veracity of the record.

4. He said that he tried ice twice at Christmas Island in the detention centre.

5. He said that if he is falsely accused, if he is in the right, he becomes aggressive on occasions.

6. He said that if contraband was in his cell in detention, and he was there alone, he would accept the blame, to avoid snitching. He said that on one occasion, the bong found was actually his. He said he thought he had used the bong on three occasions. He said that when he was found with a syringe, he was just holding it for someone. He explained his drug use on the basis that he had been in detention for five years.

7. Asked whether he had failed to attend drug and alcohol appointments, he said that they were morning appointments and that he is not a morning person. He said that he missed other medical appointments for various other ailments, because they were morning appointments.

8. He said he had never attended any drug and alcohol sessions in detention.

9. I heard no evidence amounting to evidence of rehabilitation while he was in detention. The medical appointments which he missed suggest that he has not taken advantage of opportunities to improve his health. In questioning of the applicant about that matter, I was told that he attributes his failure to attend appointments to his depression, a condition which no doubt stems in part from his long period of incarceration and detention.

10. The previous offending of which the applicant was convicted seems quite likely to be repeated if he is released into the community.  There does not appear to be any suggestion of likely stable influences apart from possible future contact with siblings, which will set him on a secure new path.

11. The instances of family violence in his offending are multiple and suggestive of repetition if he is released into the community, especially if combined with drug taking.

12. In terms of the protection of the Australian community, including women with whom he may associate in the future, it seems to me that the considerations of protection of the community, and his offences against women favour affirmation of the reviewable decision.

13. Similarly, the consideration of the expectations of the Australian community, such expectations being those stated by the government in the Direction, also favours affirmation of the reviewable decision.

14. As to the primary consideration of the best interests of minor children under the age of 18 years, I accept that he strongly desires to resume contact with his daughter now aged 18 years, with whom he communicates by Facebook.  He has not seen her since she visited him in Villawood about two and a half years ago. He introduced her to his son at the funeral of his son’s mother.

15. His son, now aged 11 or 12, lives with his maternal grandparents, he said is about ten now.  He has not seen the son since his mother’s accident. The son was in the back seat when the mother died in the accident and while the applicant was in Bathurst gaol he signed documents giving custody to the grandparents so that they could medicate his son.  He said he had failed to get in contact with his son since the accident, and that he spoke to the mother’s brother who sent him photographs at the beginning of 2020, and that  he has had no news of him since that time.

16. He has nine brothers and five sisters, now all living in Australia. He has contact only with one of his brothers and one of his sisters, although not for two years in the case of the sister.

17. The brother with whom he has contact has five children, and he has never met any of them or had contact with them. The sister has three children, one of whom, the eldest, a daughter, he met when still in the community. She is now about nine or ten, and he has had no contact with her since the mother of his son died, now more than five years ago.  His only contact with his sister is by Facebook, and he said that the more he reaches out to them, the more distant they are getting. Another brother has a boy and a girl, now 20 or 22 or 23, and a boy just over 18. He communicated with them by Facebook not long ago, but has not seen them in person since his former partner’s funeral. There is also a step-child of one of his former partners. The step-daughter resided with the applicant and her mother for two or three year. Asked whether he would make contact with the step-daughter if he were released, he said “I’d love to but I don’t know”. Asked whether he would be in touch with his son and daughter if sent back to New Zealand, he said he would, as much as he could.  He pointed out that resuming contact with his son would be difficult, but he would try.

18. It is in the best interests of the son and the daughter and such of the nephews and nieces with whom he may have contact in Australia that the cancellation of the applicant’s visa be revoked. He said that he hoped to have contact with his nephews and nieces, but has largely had no such contact at the present time. They number 23.

19. No non-refoulement obligations are owed in respect of the applicant.

20. As to impediments if removed, I was told that the applicant has no family remining in New Zealand, and no connections there. At the age of 37, and with untreated medical and psychiatric conditions, he may not, without considerable effort, improve himself. If he remains in Australia, especially in detention, his future is no less bleak insofar as can be seen. 

21. As to ties to the community, I have effectively already explored what is known about that matter. His main ties are family ties.

22. Balancing the various considerations which I have mentioned, and despite noting his sad background and circumstances, in my opinion, the correct or preferable decision is to affirm the reviewable decision.

I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC

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Associate

Dated: 9 November 2021

Date(s) of hearing:	28 September 2021
Applicant:	Self-Represented
Solicitor for the Respondent:	Ms M Donald, Sparke Helmore Lawyers