Leota and Minister for Immigration and Border Protection (Migration) - [2017] AATA 1365

Leota and Minister for Immigration and Border Protection (Migration) [2017] AATA 1365 (24 August 2017)
Division:GENERAL DIVISION
File number: 2017/0838
Damien Leota
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Dr James Popple, Senior Member
Date:24 August 2017
Place:Canberra

The decision of the delegate of the Minister for Immigration and Border Protection on 18 January 2017 is affirmed.
........................................................................
James Popple, Senior Member
CATCHWORDS
MIGRATION — visa cancellation — character grounds — substantial criminal record — whether discretion to revoke mandatory cancellation of visa should be exercised — primary and other considerations under Ministerial Direction No. 65 — decision under review affirmed.
LEGISLATION
Migration Act 1958, ss 499, 501, 501CA

CASES
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Paerau v Minister for Immigration and Border Protection (2014) 219 FCR 504
Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112

SECONDARY MATERIALS
Minister for Immigration and Border Protection, Direction no. 65—Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 22 December 2014.

REASONS FOR DECISION
Dr James Popple, Senior Member
24 August 2017
Summary

The applicant is a New Zealand citizen. He arrived in Australia 20 years ago, aged seven. He has lived in Australia for about 19 years. Since he was 15, he has been convicted of a number of criminal offences. He has spent approximately five of the last seven years in prison, and is currently imprisoned.
The applicant’s visa was cancelled under s 501(3A) of the Migration Act 1958, on the basis that he did not pass the “character test” because he had been sentenced to a term of imprisonment of 12 months or more.
I am not satisfied that the applicant passes the character test as defined by s 501. And I am not satisfied that there is another reason why the decision to cancel his visa should be revoked, having taken into account the “primary considerations” and some of the “other considerations” set out in a ministerial direction with which I must comply. Accordingly, I cannot revoke the visa cancellation decision under s 501CA of the Migration Act.
Background
I make the following findings on the balance of probabilities; these findings are based on material provided by the Minister, and are not contested. Mr Damien Leota was born in New Zealand in 1990. He is a New Zealand citizen. In 1997, aged seven, he arrived in Australia. He has lived in Australia for the 20 years since then, except that he lived in Samoa for almost all of 2006. In December 2006, when he re-entered Australia, he was granted a Class TY Subclass 444 Special Category (Temporary) visa.
Mr Leota has spent approximately five of the last seven years in prison. He is currently serving a sentence of three years and nine months imprisonment. (I detail Mr Leota’s criminal history below.)[1]
[1] See [16]–[27] below.
Section 501(3A) of the Migration Act provides:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Sections 501(6) and (7) relevantly provide:
Character test
(6)For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); …
…
Substantial criminal record
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more; …
…
On 16 January 2015, a delegate of the Minister for Immigration and Border Protection (the Minister) wrote to Mr Leota to advise him that his visa had been cancelled under s 501(3A). I will call this the original decision. The delegate was satisfied that Mr Leota did not pass the character test because of the operation of s 501(6)(a) on the basis of s 501(7)(c)—that is, he had a substantial criminal record because he had been sentenced to a term of imprisonment of 12 months or more. And Mr Leota was serving a full-time sentence in a custodial institution for an offence against a law of New South Wales. Accordingly, s 501(3A) required the delegate to cancel Mr Leota’s visa.
Mr Leota was invited to make representations about why the original decision should be revoked.[2] On 6 February 2015, Mr Leota requested that the original decision be revoked, under s 501CA of the Migration Act. Mr Leota and members of his family made representations about why the original decision should be revoked.[3] On 18 January 2017, a delegate of the Minister decided not to revoke the original decision.
[2] See Migration Act, 501CA(3)(b).
[3] See Migration Act, 501CA(4)(a).
On 16 February 2017, Mr Leota applied to the Tribunal, under s 500(1)(ba) of the Migration Act, for review of that decision.
Decision under review
The decision under review is the delegate’s decision on 18 January 2017 not to revoke the original decision (on 16 January 2015) to cancel Mr Leota’s visa.
Issues
The issues in this review are:
·Does Mr Leota pass the character test (s 501CA(4)(b)(i))?
·If not, is there another reason why the original decision should be revoked (s 501CA(4)(b)(ii))? That depends on a number of “primary considerations” and “other considerations” (set out in a ministerial direction) that I must take into account.
Legislative framework
Section 501CA of the Migration Act relevantly provides:
501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
…
(4)The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
In Gaspar v Minister for Immigration and Border Protection, the Federal Court explained:
… s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked.[4]
In other words, as the Full Court of the Federal Court pointed out in Marzano v Minister for Immigration and Border Protection, “‘may’ in s 501CA(4)(b) means ‘must’”.[5] The Full Court also noted:
… the section does not, for example, require the Minister to revoke a cancellation decision if the Minister finds “any” reason why the cancellation decision “could” be revoked”. The requirement that the Minister revoke a cancellation decision if he or she determines that there is another reason why the cancellation decision should be revoked, imports an assessment by the Minister of the propriety of a revocation decision, balancing factors both in favour and against revocation.[6]
[4] (2016) 153 ALD 338 at 345 [38] per North ACJ.
[5] [2017] FCAFC 66 at [31] per Collier J, with whom Logan and Murphy JJ agreed at [59] and [60]. See also at [30]–[32] per Collier J.
[6] [2017] FCAFC 66 at [32] per Collier J, with whom Logan and Murphy JJ agreed at [59] and [60].
The Minister has issued directions (Direction 65) under s 499(1) of the Migration Act about the exercise of the discretion to revoke a mandatory cancellation under s 501CA.[7] Section 499(2A) provides that “[a] person or body must comply with a direction under [s 499(1)]”. That applies to the Tribunal:[8] I must apply Direction 65 in exercising the discretion under s 501CA.[9]
[7]     Minister for Immigration and Border Protection, Direction no. 65—Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 22 December 2014. Direction 65 came into effect on 23 December 2014 (see paragraph 2), which was before the original decision was made (16 January 2015). Even if it had come into effect after the original decision, or after the decision under review (18 January 2017), Direction 65 would still apply to the decision that I must make in this review: see Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461 at 476 [73] and 477 [78] per Kenny and Mortimer JJ, with whom Dowsett J agreed at 463 [1].
[8]     See Paerau v Minister for Immigration and Border Protection (2014) 219 FCR 504 at 506 [3] per Buchanan J; at 513 [42] per Barker J; at 522 [93] per Perry J.
[9]     See also Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112 at 120 [14] per Mortimer J.
Paragraph 6.3 of Direction 65 sets out principles “that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion … to revoke a mandatory cancellation under section 501CA”:[10]
[10] Direction 65, paragraph 5.
6.3 Principles
(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 to 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 considerations 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.
Mr Leota’s criminal history
I make the findings about Mr Leota’s criminal history set out at [17]–[27] below, on the balance of probabilities. These findings are based on material provided by the Minister, including a National Police Certificate and sentencing remarks from various hearings. Mr Leota does not dispute the accuracy of any of this material. To the extent that the sentencing remarks referred to below contain statements of fact, I adopt those as findings.
Mr Leota’s first criminal conviction was in 2005, when he was aged 15. He was convicted of robbery in company. In the 11 years after that, he was convicted of a further 16 offences: demand property with menaces with intent to steal; larceny; assault occasioning actual bodily harm in company; destroy or damage property; affray; robbery in company; common assault; assault occasioning actual bodily harm; possess implements to enter; goods in personal custody suspected being stolen; and robbery armed with offensive weapon.
On four occasions, Mr Leota was sentenced to unsuspended terms of imprisonment:
·On 10 December 2010, he was convicted of two counts of robbery in company, and sentenced to a total of three years and nine months imprisonment, with a non-parole period of two years.
·On 21 January 2014, he was convicted of assault occasioning actual bodily harm, and sentenced to three months imprisonment, with no non-parole period.
·On 21 November 2014, he was convicted of possessing implements to enter and destroy or damage property, and sentenced to 11 months imprisonment, with a non-parole period of three months. (That sentence included one month imprisonment, with no non-parole period, for his conviction, on 21 January 2014, for common assault, for which he had been placed on a 12-month good-behaviour bond.)
·On 19 January 2016, he was convicted of robbery in company and two counts of robbery armed with an offensive weapon, and sentenced to six years and six months imprisonment, with a non-parole period of three years and six months. The offences had been committed in December 2013 and November 2014. The sentence commenced on 15 December 2014. Mr Leota is still serving this sentence.
When Mr Leota was sentenced on 10 December 2010, the sentencing judge[11] detailed how, on 19 March 2010, Mr Leota and others had conducted an “unprovoked physical attack” upon a Nepali student at a train station. They had stolen his wallet and other possessions. Mr Leota had punched the student at least six times, and dragged him across a footpath. And, on 30 May 2010, Mr Leota and another person had robbed a liquor store, stealing some bottles of Scotch. The sentencing judge noted that Mr Leota had said that he “was probably ‘pissed’” when he participated in the first of these offences, and had been drinking and smoking marijuana before the second.
[11] Judge Quirk, District Court of New South Wales, Parramatta.
The sentencing judge also said:
There is not doubt that Mr Leota suffers from a serious psychiatric illness, schizophrenia, which was diagnosed, according to [a consultant forensic psychiatrist], from about 2007. He has spent time in three psychiatric units after presenting with psychotic symptoms in the past. Two of those admissions were voluntary admissions. … He is currently receiving treatment whilst in custody …
… He has been using and abusing drugs and alcohol from about the age of seventeen and there is a family history of schizophrenia. … It seems that there is an interaction between his schizophrenia and his use of the drug “ice” [methamphetamine] and cannabis. He has also used heroin. He binge drinks frequently. His choice of drink is spirits. He has been smoking cannabis since the age of fifteen and drinking about one bottle of spirits every two to three days. …
However, he admits his guilt and has expressed remorse for what he did. …
In this case I accept the opinion of [the consultant forensic psychiatrist] that mental illness contributed to the commission of both offences, particularly the second offence where I accept that the offender heard voices telling him to rob the liquor store. At the time of the first offence he was so intoxicated that he cannot remember what occurred—and that intoxication, together with his schizophrenia made him less aware of the consequences of his acts, although this does not excuse his offending behaviour.
…
However, I am satisfied that the offender has tried in the past and has made efforts to help himself, as is evidenced in the documents tendered on his behalf. … The documents before me indicate that he does have prospects of rehabilitation and that he wants to rehabilitate himself. If he is able to remain under treatment and refrain from substance abuse which will require a great deal of assistance, the Court has hopes that he will be able to remain out of the justice system on his release to parole.
On 18 January 2014, Mr Leota was travelling on a bus. He banged on the windows and yelled abuse at other passengers. A passenger asked the driver to stop the bus, and asked whether any other passenger would help him remove Mr Leota from the bus. Mr Leota assaulted that passenger. Another passenger tried to stop him assaulting the first, and Mr Leota assaulted him, too. On 21 January 2014, Mr Leota was convicted of assault occasioning actual bodily harm in relation to the second passenger, and sentenced to three months imprisonment. And he was convicted of common assault in relation to the first passenger, and placed on a good-behaviour bond for 12 months.[12]
[12] I have not been provided with the sentencing remarks of the Local Court magistrate who sentenced Mr Leota on 21 January 2014. However, details of the offence, and the sentence, are given in the sentencing remarks of the Local Court magistrate who sentenced him on 21 November 2014: see [22] below.
On 21 November 2014, Mr Leota was convicted of various offences relating to him having broken into a car and stolen some tools. The magistrate[13] revoked the good-behaviour bond on which Mr Leota had been placed in January, and sentenced him for the common assault as well as the property offences. The magistrate’s sentencing remarks included:
While I am mindful of the defendant’s mental health issues there is no doubt … that a lot of his problems arise from his taking prohibited drugs. He has got a terrible history of prior suspended sentences. He has serious matters when he was a child and juvenile. …
He does not have a history of much prospects for rehabilitation quite frankly. He has got a history of going off his medication. He has got a history of, and I accept he has been diagnosed with a chronic psychotic illness being schizophrenia and the taking of illicit substances complicates that treatment. I know it is difficult to identify what came first the chicken or the egg and/or whether the illness means he is less equipped to avoid taking drugs or whether the taking drugs is something that then exacerbates the mental illness. He does require ongoing psychiatric care. …
[13] Magistrate Degnan, Local Court of New South Wales, Liverpool.
When Mr Leota was sentenced on 19 January 2016, the sentencing judge[14] detailed how, on 10 December 2013, Mr Leota had robbed a shopkeeper of cash and cigarettes while armed with a knife. The next day, Mr Leota and another man had robbed a taxi driver. Mr Leota had held the taxi driver, while the other man punched the driver. And, in November 2014, Mr Leota had robbed a convenience store of cash while armed with a knife. The sentencing judge said:
I have gone through the facts in some little detail simply because it is important to understand the rational way in which [Mr Leota] went about the commission of the offences in the context of a claim that he makes in a handwritten statement produced to the Court that he has no memory of the relevant events. …
The judge thought that the way in which Mr Leota committed the offences was “[q]uite inconsistent with a person who was so heavily affected by drugs or alcohol that he has a legitimate reason not to be able to remember what occurred”.
[14] Judge Norrish, District Court of New South Wales, Parramatta.

The judge pointed out that Mr Leota had been on parole when he committed the first two offences, and on a good-behaviour bond when he committed the third. He added that Mr Leota had “a substantial criminal history” and had, on several occasions, been directed to undertake drug and alcohol treatment and counselling “in relation to matters identified within the psychiatric reports concerning his complaint of or symptoms of psychotic reactions to the ingestion of drugs”. He pointed out that:
… whilst subject to parole [Mr Leota] had been breached on two separate occasions for continued drug use and not residing in an approved address. Ultimately his parole such as was left of it was revoked, his compliance with supervision was described as “erratic” and he had “displayed disregard towards the conditions of (the parole) order”.
The judge said:
It is of some significance to my mind that substantial psychotic episodes, which I accept have occurred over a period of time from time to time, appear to have commenced at the time he started using amphetamine. He has, over a period of time, had auditory hallucinations and some visual hallucinations. … He claimed to the psychiatrist that he would not be touching alcohol or prohibited drugs again …
I note during the course of his time at school he has had a number of conduct issues relating to violence with other students. His parents endeavoured to correct his conduct by sending him to Samoa to live with an uncle who was a priest, but that apparently did not work out as well as was hoped by the mother and he returned to Australia when he was 16 or 17 years of age. …
Since coming into custody, he has been abstinent [from] prohibited substances although … he continued to hear voices. He had been diagnosed both in custody and out of custody with schizophrenia although he was in custody relatively stable with mild symptoms. He did have some increase in auditory hallucinations in December 2014 shortly after coming into custody but his medication was increased and that was generally effective indicating the success of antipsychotic medication in maintaining him.
The judge referred to a number of psychiatrists’ reports. He noted that, according to one of these reports, Mr Leota “appears to have developed some insight into the presence and management of mental illness and developed some insight into his substance abuse”. That report added that drug use would “likely exacerbate his existing mental condition and may heighten the risk of relapse into drug use as well [as] increase the risk of offending behaviour”. Another report said that Mr Leota’s “chronic paranoid schizophrenia” had had a “fluctuating course” over the previous eight years (that is, since early 2008), was “quite severe” and resistant to treatment. That report added that Mr Leota’s condition and his use of illicit substances are “significant risk factors for violent and offending behaviour”.
The judge said that Mr Leota was very vulnerable “primarily because of his mental health issues and … his ready susceptibility to lapsing back into drug use”. He said:
[Mr Leota] has committed robbery offences in the past and has previously been sentenced to terms of imprisonment and it would seem that those previous terms of imprisonment have not acted as a deterrent to [him] returning to the community and ingesting drugs in knowledge that the ingestion of drugs, given his mental condition, is more likely to make him violent or commit crimes of violence against others.
…
I have already pointed out that his prospects of rehabilitation must be approached with considerable circumspection and I certainly could not make a favourable finding on his behalf. I could not conclude also that he is unlikely to reoffend in the future if he returns to the use of prohibited drugs he is at real risk of offending as he has done in the past.
Does Mr Leota pass the character test (s 501CA(4)(b)(i))?
I must revoke the original decision if I am satisfied that Mr Leota passes the character test (s 501CA(4)(b)(i)).
Mr Leota has been sentenced to a term of imprisonment of 12 months or more. Because of s 501(7)(c), he has a “substantial criminal record”. And, because of s 501(6)(a), he does not pass the character test for the purposes of s 501.
It follows that I am not satisfied that Mr Leota passes the character test as defined by s 501. I cannot revoke the original decision under s 501CA(4)(b)(i).
Is there another reason why the original decision should be revoked (s 501CA(4)(b)(ii))?
I must revoke the original decision if I am satisfied that there is another reason why the original decision should be revoked (s 501CA(4)(b)(ii)).
Paragraph 7(1)(b) of Direction 65 says that a decision maker must take into account the considerations in Part C of Direction 65 when deciding whether to revoke a mandatory cancellation under s 501CA, given the specific circumstances of the case.[15] Part C specifies “primary considerations” that must be taken into account, and “other considerations” that must be taken into account where relevant.[16] Paragraph 8(4) says that “[p]rimary considerations should generally be given greater weight than the other considerations”.
[15] See also Direction 65, paragraph 13(1).
[16] Direction 65, paragraphs 13(2) and 14(1).
The primary considerations are:
·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.[17]
The other considerations include (but are not limited to):
·international non-refoulement obligations;
·the strength, nature and duration of ties to Australia;
·the impact on Australian business interests;
·the impact on victims; and
·the extent of impediments if removed.[18]
Only the second and fifth of these other considerations are relevant to Mr Leota’s case: the strength, nature and duration of his ties to Australia; and the extent of impediments if he is removed.
[17] Direction 65, paragraph 13(2).
[18] Direction 65, paragraph 14(1).
Protection of the Australian community (primary consideration)
Paragraph 13.1 of Direction 65 says:
13.1 Protection of the Australian community
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. …
(2)Decision-makers should also give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Paragraph 13.1.1 lists factors to which I must have regard in considering the nature and seriousness of Mr Leota’s conduct (paragraph 13.1(2)(a)). Relevantly, I must have regard to:
·the principle that violent crimes are viewed very seriously;
·the sentences imposed by the courts;
·the frequency of Mr Leota’s offending and whether there is any trend of increasing seriousness; and
·the cumulative effect of repeated offending.[19]
Having regard to these factors, I am satisfied that Mr Leota’s conduct—his criminal behaviour—is very serious. Mr Leota has been sentenced four times to unsuspended terms of imprisonment for violent crimes.[20] He has frequently reoffended. He committed two offences while on parole, and one while on a good-behaviour bond. The seriousness of Mr Leota’s offending has fluctuated over time, though there is perhaps a trend of increasing seriousness. What is clear is the cumulative effect of his repeated offending: he has spent almost 19% of his life, and more than 70% of the time since his first imprisonment, in prison.[21]
[19] Direction 65, paragraphs 13.1.1(1)(a), (c), (d) and (e).
[20] See [18] above. On 21 November 2014, Mr Leota was sentenced for property crimes and for breaching a good-behaviour bond in relation to a violent crime: see [22] above
[21] These figures are calculated on the assumption that Mr Leota served only the non-parole periods of imprisonment imposed.
Another factor listed in paragraph 13.1.1 is relevant to Mr Leota’s case: whether he has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of his migration status.[22]
[22] Direction 65, paragraph 13.1.1(1)(g).
I make the following findings on the balance of probabilities; these findings are based on material provided by the Minister, and are not contested. On 21 February 2012, the Department of Immigration and Border Protection (the Department) wrote to Mr Leota who was then in prison, following his sentencing on 10 December 2010. The letter advised that a delegate of the Minister had decided not to cancel his visa on character grounds “on this occasion”. The letter went on to say:
Please note: this decision does not mean that your case cannot be considered again under s 501 in the event of further criminal offending by you.
On 3 March 2014, the Department wrote again to Mr Leota, who was then in prison, following his sentencing on 21 January 2014. The Department’s letter advised that “[a]t present, no consideration is being given to cancelling your visa under section 501 of the [Migration] Act”. The letter went on to say:
The purpose of this letter is to warn you that any further criminal convictions, or any other conduct on your behalf that comes within the scope of subsection 501(6), could result in consideration of the cancellation of your visa.
Mr Leota committed criminal offences before and after each of these letters: he re-offended after being formally warned, in writing, about the consequences of further offending in terms of his migration status. Having regard to this factor, I am further satisfied that Mr Leota’s criminal behaviour is very serious.
Paragraph 13.1.2 lists factors to which I must have regard in considering the risk to the Australian community should Mr Leota commit further offences or engage in other serious conduct (paragraph 13.1(2)(b)). Relevantly, I must have regard to:
·the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases;
·the nature of the harm to individuals or the Australian community should Mr Leota engage in further criminal or other serious conduct; and
·the likelihood of Mr Leota engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of Mr Leota re-offending.[23]
Having regard to these factors, I am satisfied that there is a not insignificant risk that Mr Leota will commit further violent offences or engage in other serious conduct.
[23] Direction 65, paragraphs 13.1.2(1), (2)(a) and (2)(b).
Mr Leota gave evidence at the hearing. He said that he is sorry for the crimes he committed. He says that he has undertaken programs in prison intended to help him to avoid taking illegal drugs, and to become less aggressive. He says that his reoffending was due to him deciding not to continue taking his medication, and relapsing into taking illegal drugs, specifically methamphetamine. He says that he now understands the importance of taking his medication to help him deal with his mental illness, and that his use of methamphetamine was a major cause of his offending. I accept Mr Leota’s evidence: I think that he is genuinely repentant, and is taking steps to address his drug addiction and his violent behaviour.
However, Mr Leota’s history of re-offending—and the circumstances of that reoffending—suggest that there is still a significant risk that he will reoffend. When Mr Leota was first sentenced to prison (on 10 December 2010), the sentencing judge said that “he does have prospects of rehabilitation and … he wants to rehabilitate himself”. The judge said that “the Court has hopes that he will be able to remain out of the justice system on his release to parole”.[24] When Mr Leota was sentenced on 21 November 2014, the sentencing magistrate said that there was not much prospect of rehabilitation.[25] When Mr Leota was sentenced on 19 January 2016, the sentencing judge commented on his “ready susceptibility to lapsing back into drug use” and said that Mr Leota’s “prospects of rehabilitation must be approached with considerable circumspection”.[26] He added: “I could not conclude also that he is unlikely to reoffend in the future if he returns to the use of prohibited drugs he is at real risk of offending as he has done in the past”.[27]
[24] See [20] above.
[25] See [22] above.
[26] See [27] above.
[27] See [27] above.
At the hearing, I asked Mr Leota what had changed that makes him confident that he will not relapse when he is released given that, after previous terms of imprisonment, he relapsed into drug-taking and criminal behaviour. Mr Leota said that the last time he relapsed, he said and did things to his mother that now make him very sad. He said that his mother had “always been there” for him, and that he just wants to “bring peace to her mind”. He continued:
And I would never—it’s because of the ice, that led me to jail. I know now. I’ve learnt a few things from the programs that I’ve done, that can help me to avoid touching ice, but every time I would—there’s ice in front of me, or if I see ice, I will just have to think of my mum, and that would make me change my mind.
I think it likely that Mr Leota now has a better understanding of the impact of his offending than he did during and after his earlier periods of imprisonment. And I believe that Mr Leota genuinely regrets the effect that his criminal behaviour has had on his family. However, I note that Mr Leota has previously participated in programs intended to help him to deal with his drug addiction,[28] yet he went on to relapse and re-offend. And he would appear to have had the benefit of a supportive family throughout his life, but that did not stop him offending and re-offending.
[28] See [24] above.
I think that there is a significant risk that, when he is released from prison, Mr Leota will relapse into drug-taking. (This risk will be heightened if, as he has done in the past, he stops taking medication for his schizophrenia.) And, if he does relapse into drug-taking, there is a significant risk that he will commit further offences, including serious offences like the violent offences for which he has been imprisoned. This significant risk that Mr Leota will commit further violent offences means that the protection of the Australian community (one of the primary considerations) weighs heavily against revocation of the original decision.
Best interests of minor children in Australia (primary consideration)
Paragraph 13.2 of Direction 65 relevantly says:
13.2 Best interests of minor children in Australia affected by the decision
(1)Decision-makers must make a determination about whether revocation is, or is not, in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
…
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact …
…
c) The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
…
I make the following findings on the balance of probabilities; these findings are based on evidence given by Mr Leota and his parents, and are not contested. Mr Leota has no children. He has four brothers and two sisters, all younger than him. Two of his siblings are under the age of 18.
At the hearing, Mr Leota’s parents told me how they have worked hard to raise their children well. They told me that, apart from Mr Leota, none of their children has ever committed any criminal offence. I accept their evidence. Mr Leota told me that he has a close relationship with his siblings, and that he encourages them not to “go down the path I went”. Written statements from his siblings assert that he has a positive impact on their lives. I accept that Mr Leota has a close relationship with his siblings, noting that he has been physically separated from them for much of the last seven years, while he has been in prison. I also accept that he has sometimes had a positive impact upon the lives of his siblings.
There is some evidence before me that Mr Leota has cared for his younger siblings when his parents were unavailable. However, it is clear that Mr Leota does not have a parental relationship with any of his siblings.
If the original decision is not revoked, Mr Leota will be forced to leave Australia at the end of his current term of imprisonment. That would not be in the best interests of Mr Leota’s minor siblings, to the extent that they will be separated from their brother (unless they leave Australia, too—I discuss this possibility below).[29] However, I must give little weight to this consideration because Mr Leota relationship with his siblings is non-parental, and he has been separated from his siblings for long periods (while imprisoned). From his parents’ evidence, it is clear that Mr Leota’s past criminal conduct has had a negative impact on his siblings (including his minor siblings) to the extent that his crimes have caused much heartache in his family. And I note that, if Mr Leota is forced to leave Australia, he will be able to maintain contact with his family, including his minor siblings, in other ways.
[29] See [65]–[66] below.
For these reasons, I think that revocation of the original decision would be in the best interests of Mr Leota’s minor siblings. But this consideration (one of the primary considerations) does not weigh heavily in favour of revocation of the original decision.
Expectations of the Australian community (primary consideration)
Paragraph 13.3 of Direction 65 says:
13.3 Expectations of the Australian community
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
In ETWK and Minister for Immigration and Border Protection, Deputy President Forgie considered the question of how the expectations of the Australian community should be determined:
In my reasons for decision in Rabino and Minister for Immigration and Border Protection,[30] I considered this paragraph in some detail. I will not repeat my analysis but adopt its conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in [Direction 65] than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an “unacceptable risk” that non-citizens will breach that expectation or when the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. I respectfully suggest that a consideration of what is an acceptable risk and what is not will be informed by the Principles set out in the current Direction. Paragraph 6 generally, and paragraph 6.3 in particular, must be borne in mind. That is particularly so when regard is had to the general statement in 6.2(1) that:
... The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.[31]
[30] [2016] AATA 999 at [60]–[72] per Forgie DP.
[31] [2017] AATA 228 at [102] per Forgie DP.

Mr Leota has committed violent offences. I have already decided that there is a significant risk that he will commit further violent offences.[32] The minister contends that “the Australian community would not expect someone in [Mr Leota’s] position and circumstances to be given ‘another chance’, particularly noting the serious harm he has caused, and the ongoing risk of harm he presents, to the Australian community”.
[32] See [43] above.
On the basis that the principles set out in paragraph 6.3 of Direction 65 (see above)[33] reflect the expectations of the Australian community, I agree. Specifically, I agree that the Australian community expects that the Australian Government can and should cancel the visas of non-citizens (like Mr Leota), if they commit serious crimes in Australia (paragraph 6.3(2)); and a non-citizen who has committed a serious crime, including of a violent nature, should generally expect to forfeit the privilege of staying in Australia (paragraph 6.3(3)).
[33] See [15] above.
I do not think that Mr Leota’s criminal offending is so serious that any risk of similar conduct in the future is unacceptable (paragraph 6.3(4)). And, I note that Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who (like Mr Leota) has lived in the Australian community for most of their life, and from a young age (paragraph 6.3(5)). I also note that the cancellation of Mr Leota’s visa will have negative consequences for his minor siblings and his immediate family in Australia (paragraph 6.3(7)).
Nonetheless, I think that the Australian community would expect that a non-citizen with a criminal record like Mr Leota’s would not be allowed to stay in Australia. The Australian community’s expectations (one of the primary considerations) weigh heavily against revocation of the original decision.
Strength, nature and duration of ties to Australia (other consideration)
Paragraph 10.2 of Direction 65 says:
10.2 The strength, nature and duration of ties to Australia
(1)Reflecting the principles at 6.3, decision-makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of cancellation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Mr Leota first came to Australia aged seven. He has lived in Australia for approximately 19 years. He was 15 when he was first convicted of an offence (robbery in company). He was 20 when he was first imprisoned. He has spent more than five years in prison. He is now 27.
Mr Leota arrived as a child, and can be assumed to have contributed positively to the Australian community for the eight years that he was in Australia before he was first convicted. But, as noted above,[34] between 2005 and 2016, Mr Leota was in Australia for about ten years and was convicted of 17 offences. It appears that he worked only briefly during those ten years, though his capacity for employment is probably reduced due to his schizophrenia. Having particular regard to the principle in paragraph 6.3(7),[35] I think that Mr Leota has made a positive contribution to the Australian community for less than half of the time that he has lived here.
[34] See [4] and [17]–[18] above.
[35] See [15] above.
It appears that Mr Leota has extensive family and social links with Australian citizens and others with an indefinite right to remain in Australia. He has a large family, nearly all of whom live in Australia. His connection to them would appear to be strong and long-lasting, though his terms of imprisonment must have reduced the strength of those links. If Mr Leota is forced to leave Australia at the end of his current term of imprisonment, the effect upon his family—particularly upon his parents and siblings—will be significant and negative.
However, the strength and duration of Mr Leota’s family and social links must be balanced against the extent and duration of his positive contribution to the Australian community. On balance, I think that the strength, nature and duration of Mr Leota’s ties to Australia (one of the other considerations) weigh in favour of revocation of the original decision, but not heavily.
Extent of impediments if removed (other consideration)
Paragraph 10.5 of Direction 65 says:
10.5 Extent of Impediments if removed
(1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)The non-citizen’s age and health;
b)Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.[36]
[36] Paragraph 10.5 has no principal verb. However, from its context in Direction 65, it is clearly intended that decision makers have regard to the factors set out in that paragraph.
Mr Leota is a New Zealand citizen. If he is forced to leave Australia at the end of his current term of imprisonment, he can return to New Zealand. At the hearing, Mr Leota and his parents said that all of his close family and friends live in Australia, though he has some relatives living in New Zealand and in Samoa.
There are no substantial language or cultural barriers to him living in New Zealand. And the Minister has provided some evidence that the medical and economic support that would be available to Mr Leota in New Zealand would be comparable to the support available to him in Australia.
I think that there are two impediments that Mr Leota will face if he is removed to New Zealand: his health, and the lack of social support available to him in New Zealand. Mr Leota suffers from schizophrenia, and has done for about ten years.[37] He has been treated for this serious psychiatric illness, including while in prison. Even if he continues his treatment after his release, including taking his medication, I think it likely that his schizophrenia will be an impediment to him establishing himself in New Zealand and maintaining basic living standards. I assume that medical support comparable to that available to Mr Leota in Australia would be available to him in New Zealand. But, without social support (particularly the support of his family), I think that the risk of him not continuing to take his medication would be greater than if he were to stay in Australia. And, even without has mental illness, that lack of social support would be something of an impediment to him establishing himself in New Zealand and maintaining basic living standards.
[37] See [20] above.
However, as the Minister points out, Mr Leota “would … have more support available to him if his family (or some of his family) decided to re-locate to New Zealand, either permanently or temporarily”.[38] Mr Leota’s parents are New Zealand citizens. It appears that some of his siblings are also New Zealand citizens, and I assume that the others are eligible for New Zealand citizenship. At the hearing, his parents said that they have considered, and would consider, moving to New Zealand if Mr Leota is forced to go there. But they also said, and I accept, that such a move would be extremely disruptive for Mr Leota’s family, especially given that some of his siblings are still at school.
[38] If Mr Leota’s minor siblings were to move to New Zealand, that would reduce the extent to which the revocation of the original decision would otherwise be in the best interests of those children. However, I have already decided that that consideration does not weigh heavily: see [49] above.
There can be no reasonable expectation that Mr Leota’s family, or some of his family, should move to New Zealand. Nonetheless, doing so would reduce, to some extent, the impediments that Mr Leota would face if he were removed to New Zealand: his health and lack of social support. Accordingly, I think that I can have regard to the possibility of his family relocating to New Zealand in considering the extent of the impediments facing Mr Leota. On balance, I think that the extent of the impediments that he might face, if removed from Australia, in establishing himself and maintaining basic living standards in New Zealand (one of the other considerations) weighs in favour of revocation of the original decision, but not heavily.
Further considerations
The list of “other considerations” set out in paragraph 14(1) of Direction 65 is expressly not exhaustive.[39] I do not think that there are any further considerations that I should take into account in this case.
[39] “These considerations include (but are not limited to)” the list of other considerations in paragraph 14(1).
Conclusion: is there another reason?
In deciding whether there is another reason (apart from the character test) why the original decision should be revoked, I must take into account the considerations in Part C of Direction 65. In Mr Leota’s case, of the primary considerations:
·the protection of the Australian community from criminal or other serious conduct weighs heavily against revocation of the original decision;
·the best interests of minor children in Australia weigh in favour of revocation, but not heavily; and
·the expectations of the Australian community weigh heavily against revocation.
And, of the other considerations:
·the strength, nature and duration of Mr Leota’s ties to Australia weigh in favour of revocation of the original decision, but not heavily; and
·the extent of any impediments that Mr Leota may face if removed from Australia weighs in favour of revocation, but not heavily.
Having regard to all of these considerations, and giving greater weight to the primary considerations than to the other considerations, I am not satisfied that there is another reason why the original decision should be revoked. I cannot revoke the original decision under s 501CA(4)(b)(ii).
Conclusion
I am not satisfied that Mr Leota passes the character test as defined by s 501. And I am not satisfied that there is another reason why the original decision should be revoked. I cannot revoke the original decision under either s 501CA(4)(b)(i) or (ii). I must affirm the decision under review.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple

........................................................................
Associate
Dated: 24 August 2017

Date of hearing: 21 July 2017

Applicant: In person

Counsel for the Respondent: Mr Ken Powell

Solicitors for the Respondent: Clayton Utz Lawyers

Date of hearing:	21 July 2017
Applicant:	In person
Counsel for the Respondent:	Mr Ken Powell
Solicitors for the Respondent:	Clayton Utz Lawyers