LKSY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 4586
•9 December 2021
LKSY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4586 (9 December 2021)
Division:GENERAL DIVISION
File Number(s): 2021/6901
Re:LKSY
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member M Griffin QC
Date:9 December 2021
Place:Sydney
The decision under review is affirmed.
............................[SGD]............................................
Senior Member M Griffin QC
CATCHWORDS
MIGRATION – mandatory cancellation of visa – Class TY Subclass 444 Special Category (Temporary) visa – where visa was cancelled under section 501(3A) because applicant did not pass character test – substantial criminal record- Ministerial Direction No. 90 – primary considerations – protection of the Australian community – seriousness of offending and future risk – best interests of minor children – expectations of the Australian community – other considerations – extent of impediments if removed – links to the Australian community – strength, nature and duration of ties to Australia – Impact on Australian business interests – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth): ss 499, 500, 501, 501CA, 501E
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
SECONDARY MATERIALS
Direction No. 90- Migration Act 1958- Direction under section 499- Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Senior Member M Griffin QC
9 December 2021
The Applicant has applied for review of a decision of the delegate of the Minister which was made on 20 September 2021 (‘review decision’) not to exercise discretion under section 501 CA(4) of the Migration Act 1958 (Cth) (‘the Act’) to revoke an original decision to cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (‘visa’).
FACTS
The Applicant has conveniently set out in a table the history, relevant events, and references in the material to background matters which are relevant to this consideration. The Tribunal reproduces that table.
Date
Event
Reference
1939
Applicant’s maternal grandmother born
G 174
1990
Applicant born in Wellington, New Zealand G 132
1990
Applicant’s de facto partner, Ms M, born in Australia
G132
13.08.1995 Applicant first arrives in Australia aged four years, travelling on a subclass 444 visa with his uncle, followed shortly afterwards by his grandparents and their family. Applicant lives with his grandparents, cousins and siblings
G120
G181
1997
Applicant’s mother moves to Australia with Applicant’s two younger half-brothers
G 120-121
09.04.1998
Applicant’s maternal grandmother granted Australian citizenship. Applicant not included in citizenship application for unknown reasons
G 174
2000
Applicant’s grandfather dies
G 121
26.10.2000
Applicant’s mother granted Australian citizenship. Applicant not included in citizenship application for unknown reasons
G 155-156
13.12.2002
Applicant graduates Year 6 at Blackett Public School
G 139
29.06.2004
Applicant receives Confirmation in The Holy Family Church
G 140
20.07.2004
Applicant celebrates Reconciliation in The Holy Family Church
G 137
24.10.2004
Applicant receives Blessed Eucharist in The Holy Family Church
G 138
26.03.2007
Applicant convicted in Cobham Childrens Court of:
· robbery - 18 months’ probation
· demand property with menaces - control order 3 months
· aggravated robbery - control order 3 months
G 52
16.07.2007
Applicant convicted in Cobham Childrens Court of larceny and fined $600
G 52
27.05.2008
Applicant convicted in Parramatta Childrens Court of:
· robbery- call- up control order
· possess spray paint- call- up control order
· goods in personal custody- dismissed with caution
· use offensive language- $150 fine
· resist/ hinder police officer- $150 fine
· larceny- 12 month bond
G 52
02. 10. 2008
Applicant convicted in Parramatta Childrens Court of affray and sentenced to 18 months’ probation
G 52
03.11.2008
Applicant at skate park takes mobile phones from two youths aged 16 years, after threatening them with an (unbroken) bottle
SD
11.01.2009
Applicant with at least four others enters rail corridor between Doonside and Blacktown; one of the other offenders “trips” signal arm so that train stops, providing opportunity to deface train with graffiti. Applicant has face covered with t-shirt. Ten minutes later, when train stops, offenders deface train, causing damage worth $6,788.60.
SD
25.01.2009
Applicant with two others enter Kingswood Railway Station and grab keys from train while driver sitting in compartment. Applicant has face covered with t-shirt.
SD
26.10.2009
Applicant with five others enter Richmond Railway Station and use bolt cutters to cut a section of wire fencing leading to rail corridor. They later enter and spray graffiti onto trains. Applicant has face covered with t-shirt. Total damage $3,999.90.
SD
05.02. 2009
Applicant arrested and refused bail
G 65
30.04.2009
Applicant convicted in Mt Druitt Local Court of:
· goods in custody susp. stolen - 2 months imp.
· 5 x destroy/damage property - 6 months imp. on each charge, concurrent
· 5 x disguise with intent to commit indictable offence - 6 months imp. on each charge, concurrent with above
· assist in obstruction of rail - 12 months imp., concurrent
· steal from the person - 9 months imp., concurrent
Total effective sentence: 12 months imprisonment with a NPP of six months- to commence 05.02.2009 and expire 22.05.2009
G 51-52
G 70-80
10.02.2009 Applicant transferred to Metropolitan Reception and Remand Centre in Silverwater (MRRC)
G 85 27. 08. 2009 Applicant transferred to Parklea Correctional Centre
G 85 19. 03. 2010 Applicant appears before Penrith District Court:
Severity appeal from Mt Druitt Local Court - sentences vacated and replaced:
· goods in custody susp. stolen - 1 month imp.
· 5 x destroy/damage property - 1 month imp. on each charge, concurrent
· 5 x disguise with intent to commit indictable offence - 1 month imp. on each charge, concurrent with above
· assist in obstruction of rail - 1 month imp., concurrent
· steal from the person - 1 month imp., concurrent
· Sentence on further armed robbery offences arising from skate park incident on 03.11.2008:
· 1 x robbery armed with offensive weapon - 2 years 7 months imp; NPP 15 months
· 1 x robbery armed with offensive weapon 12 months imp., concurrent with above.
· Form 1 - 2 x attempted robbery with offensive weapon.
Total effective sentence: 2 years 7 months imp, NPP 15 months commencing 30.06.2009 and expiring 29.09.2010
G 49- 51
G 64- 69
13. 04. 2010 Applicant transferred to John Morony Correctional Centre in Windsor
G 85 21. 04. 2010 Respondent notifies applicant that his visa may be liable to cancellation on character grounds
G 177 13. 08. 2010 Respondent writes letter notifying applicant of decision not to cancel his visa, with a warning that his visa cancellation may be reconsidered if he commits further offences
G 177- 178 13. 09. 2010
Applicant visited in John Morony Correctional Centre by two officers of the Department and handed letter of warning. Applicant signs acknowledgement of receipt of letter; however later told by other inmates that “it was nothing” G 128
G 179
12. 05. 2011 Applicant commences de facto relationship with Ms M G 108 2012 A son, T, born in Sydney to Applicant and Ms C G 133 29. 09. 2010 Applicant released on parole G 84 2013 Applicant’s godson, H, born G 119 15. 11. 2012 Applicant and others caught shoplifting clothes in Westfield Parramatta. Pursued by security guards into car park and attempt to escape in their car but unable to exit due to boom gates. Applicant reversed and drove against traffic flow, causing guards to jump out of the way. [Police Facts Sheet ends here]
SD
14. 12. 2013 Applicant, while heavily intoxicated, attempted to enter Mona Vale Hotel. When refused entry by security guards he became aggressive and a scuffle ensued. Police arrived for a unrelated matter and arrested applicant
SD 13. 08. 2014 Applicant convicted in Parramatta Local Court of:
· shoplifting value < $2,000 - $400 fine
· learner not accompanied - $300 fine
· drive in bus lane - $300 fine
· not stop at red light - $500 fine
· drive vehicle recklessly/
· furiously or speed/manner dangerous:
· $1,500 fine
· s. 9 bond 18 months supervised
· disqualified 3 years
· no “L” plates - $150 fine
· excluded person in licenced premises - $400 fine
· behave in offensive manner - $400 fine
G 49 20. 09. 2014 Applicant and Ms M appointed as Godparents of H G 135- 136 06. 02. 2015 Applicant convicted in Parramatta District Court of drive vehicle recklessly/furiously or speed/manner dangerous:
· $1,500 fine
· s. 9 bond 18 months
· disqualified 3 years
G 49 20. 04. 2015 Applicant stopped by police in Mt Druitt for a random breath test and asked if he had a current licence. He tells police he does and that his disqualification (on 13.08.2014) was under appeal. Police release applicant but later check applicant’s record and discover that the applicant had lodged an appeal but this had been dismissed on 06.02.2015 when he failed to attend the court.
SD 27. 08. 2015 Applicant convicted in Mt Druitt Local Court of drive while disqualified:
· Community Service Order 100 hours
· disqualified 2 years
G 49 19. 09. 2015 Applicant entering Defqon I Music Festival at Penrith and stopped and searched by police, who find one capsule of methylamphetamine.
SD 29. 12. 2015 Applicant made the subject of a firearms prohibition order
G 54 07. 01. 2016 Applicant convicted in Mt Druitt Local Court of possess prohibited drug - $500 fine.
Applicant served with firearms prohibition order
G 49
G 54
05. 07.2016 Police attend applicant’s premises at 2 Idriess Crescent Blackett to execute search warrant pursuant to firearms prohibition order and find $6,250 in cash. In next-door yard they find luggage bag containing shortened firearm, pistol and ammunition, with applicant’s fingerprints on bag. Also found more ammunition in applicant’s house.
Applicant arrested and refused bail.
G 54-55
G 149
29. 07. 2016 Applicant transferred to Amber Laurel Correctional Centre in Emu Plains
G 84 11. 11. 2016 Applicant being held at MRRC when searched by corrective officers who find a small mobile phone, charger, and 0.1 grams of Buprenorphine SD 14. 04. 2018 Applicant and other inmates assault a fellow inmate at MRRC and charged with affray SD 15. 06. 2018 Applicant convicted in Burwood Local Court of:
· inmate possess mobile phone - 10 months imprisonment
· possess prohibited drug - 10 months imprisonment concurrent
G 48- 49 20. 12. 2018 Applicant convicted in Burwood Local Court of affray and sentenced to 6 months imprisonment
G 48 22. 07. 2019 Jake Baldacchino, Provisional Psychologist, and Alison Cullen, Psychologist, provide report to Penrith District Court.
Applicant diagnosed, at time of firearms offences, as likely to meet diagnostic criteria for:
· Moderate Alcohol Use Disorder;
· Severe Stimulant (Cocaine) Use Disorder; comorbid with
· Stimulant (Cocaine) Intoxication
These diagnoses “appear to have directly influenced [The Applicant]’s decision making and understanding of the severity related to his offending misconduct”
“Given that [the Applicant] reported being abstinent for three (3) years from all substances and that such claims of maintained abstinence are perceived as genuine and intrinsically motivated, he is considered to be in sustained remission”.
“In the event that [the Applicant] maintains long-term abstinence, his prognosis is considered favourable and, subsequently his risk of recidivism is considered low.” (emphasis added)
G 144- 151 02. 08. 2019
After a plea of guilty, applicant convicted in Penrith District Court of:
· Possess unauthorised pistol - sentenced to 5 years imp., commencing 27.07.2016, conc. 26.07.2021; npp 3 years, conc. 26.04.2020
· Possess shortened firearm - sentenced to 5 years imp., concurrent with above
· possess ammunition; 2 x deal with property
G 48
G 53-64
16.09.2019 Applicant convicted in Penrith Local Court of steal motor vehicle and sentenced to 8 months imprisonment to commence 04.08.2016 concluding 03.04.2017
G 47
13. 11. 2019 Applicant’s subclass 444 visa cancelled under s 501(3A) of the Migration Act
G 47 21. 11. 2019 Applicant completes Request for revocation of visa cancellation and Personal Circumstances Form at Lithgow Correctional Centre
G 182- 187 26. 03. 2020 Applicant convicted in Lithgow Local Court of Use or possess mobile phone in place of detention and sentenced to six months imprisonment, commencing 26.03.2020 and expiring 25.09.2020
G 281 30. 07. 2020 Applicant convicted in Lithgow Local Court of Use or possess mobile phone in place of detention and sentenced to seven months imprisonment, commencing 30.07.2020 and expiring 28.02.2021
G 281 20. 09. 2021 Delegate of respondent makes decision to refuse to revoke the cancellation of the applicant’s subclass 444 visa
G 12-30 24. 10. 2021 Applicant lodges application for review of decision with the Administrative Appeals Tribunal
G 3-8 ISSUES
The Applicant does not pass the character test because he has a substantial criminal record by virtue of having been sentenced to a term of imprisonment of 12 months or more: ss 501(6)(a) and (7)(c) of the Act. This is not disputed by the Applicant.
The sole issue for the Tribunal's determination is whether it can be satisfied that there is another reason why the original decision should be revoked, such that the Tribunal may revoke the decision: s 501CA(4)(b)(ii) of the Act.
RELEVANT LEGISLATION AND POLICY
Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: see s 501CA(1).
Section 501CA(4) provides that:
(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 [2016] FCA 1166 at [38], North ACJ held that:
The preferable conclusion is that 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.
Section 501(6)(a) relevantly provides that a person does not pass the character test if the Applicant has a substantial criminal history. Section 501(7)(c) states that a person has a substantial criminal history if they have received a sentence of imprisonment of 12 months or more.
The Applicant was sentenced to a term of imprisonment for more than 12 months. The Applicant does not pass the character test.
Section 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made a written direction pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (Direction No. 90). Section 5 of Direction No. 90 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly includes that:
1Australia has a sovereign right to determine whether non-citizens who are of character concern have a right to enter or remain in Australia. Being able to come 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 (paragraph 5.2(1));
2non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia (paragraph 5.2(2));
3the Australian community expects that the Australian Government can and should refuse entry to non-citizens or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community (paragraph 5.2(3));
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens 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 by non-citizens who have lived in the Australian community for most of their life, or from a very young age (paragraph 5.2(4));
5decision makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non- citizen's conduct or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community (paragraph 5.2(5)).
Part 2 of Direction No. 90 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises four Primary Considerations and several specified, but non-exhaustive, Other Considerations, which must be taken into account.
Pursuant to Part 2 of Direction No. 90, the Tribunal must, to the extent that they are relevant to this case, take the relevant considerations (both primary and other) into account and:
1In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight (paragraph 7.1).
2Primary considerations should generally be given greater weight than the other considerations (paragraph 7.2).
3One or more primary considerations may outweigh other primary considerations (paragraph 7.3).
These principles are of course dependent upon the facts and circumstances of each case.
The primary considerations are:
(a)Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);
(b)Whether the conduct engaged in constituted family violence (Primary Consideration 2);
(c)The best interests of minor children in Australia (Primary Consideration 3); and
(d)Expectations of the Australian community (Primary Consideration 4).
The Tribunal must also take into account other considerations insofar as they are relevant.
These considerations include (but are not limited to):
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims;
(d)Links to the Australian community, including:
(i)strength, nature and duration of ties to Australia; and
(ii)impact on Australian business interests.
Submissions on evidence
The Tribunal accepts the Applicant’s written submissions that merely because the Respondent has produced a large volume of material from various sources, including courts and police reports, production does not make that material admissible. It is only if that material or the facts stated therein are accepted by the Applicant, or otherwise accepted by the Tribunal, as evidence, upon which the Tribunal is satisfied, that that material becomes admissible evidence in the proceedings. It is upon that basis that the Tribunal will act; only on admissible evidence in this case.
Oral evidence given at hearing
The Applicant’s former partner, Ms C, and his present partner, Ms M, both gave evidence to the effect that there was a palpable change in the Applicant since his imprisonment and immigration detention. Both witnesses, expressly or impliedly, spoke of the appreciation of the Applicant as a very different person to the man who comes before this Tribunal with numerous criminal convictions. The Tribunal notes that the very many references and testimonials by family and others who know the Applicant speak to the same effect.
It appears to the Tribunal that there is a loving, caring, sensitive and generous side to the Applicant which is at odds with his criminal behaviour. Nonetheless, the Tribunal accepts that there is that dimension to his character, described in quite positive terms by all of those witnesses.
The Applicant’s counsel made a submission during the course of his address that the Applicant arrived in Australia already ‘broken’. That is most probably true, having regard to the Applicant’s unfortunate background which continued despite the love within his family and particularly the love which was given him by his grandmother, which he has returned. The affection for his family by the Applicant was clearly demonstrated in the Applicant’s oral evidence.
The Applicant’s present partner supported his remaining in Australia but the Tribunal notes there is some ambivalence in her oral evidence and statements made both by her and by her father concerning her intentions should the Applicant be returned to New Zealand. It is simply not clear whether she would follow the Applicant to New Zealand because in oral evidence she stated, in effect, that her life, her job and her home were in Australia and impliedly suggested that she would not follow the Applicant to New Zealand. The Tribunal does not accept this statement which was obviously made in an attempt to produce a result in the Tribunal’s findings in favour of the Applicant. In the event, the Tribunal is satisfied it is not necessary to make a particular finding one way or the other on this topic.
The Applicant’s former partner and mother of his child, T, spoke highly of the Applicant and his parenting skills and the love that the Applicant has for his child and described the child’s relationship with the father in terms of the child ‘adoring’ the father. The Tribunal is prepared to accept that evidence and this will be discussed further in considering the best interests of minor children.
The Applicant gave evidence and was cross-examined and questioned also by the Tribunal. Superficially, the Applicant was candid in his responses to certain matters but the Tribunal notes that candour was in relation to matters concerning which the Applicant had no other option but to accept the facts and consequences that were proven against him.
There were, however, some quite troubling aspects to the Applicant’s evidence. The Applicant said that he did not know why a Prohibition Order against the possession of weapons was made against him. The Tribunal finds that explanation inherently incredible.
The Applicant was asked about the antecedents to his possession of the weapons, which was the subject of his last serious offending. The Applicant explained that he had ‘found’ the ammunition in parkland or a reserve (apparently wrongly described as ‘reservoir’ in Court documents). The Applicant went on to explain that the finding of the ammunition led him to decide to purchase a weapon having, by chance and luck, come across the ammunition. It is unsurprising that the Applicant refused to provide the name of the person who supplied the weapon. As to the pistol, the Applicant gave evidence that he paid over $3000 for that pistol. As to the possession of those weapons, the Applicant’s version, explained to the Sentencing Judge, was that he was in a paranoid state of fear and required them for his own protection.
The explanation as to how the Applicant acquired the shotgun by first ‘finding’ the ammunition is, in the Tribunal’s opinion, absurd and therefore, inherently incredible.
The Applicant gave evidence as to the possession of more than $6000, the subject of sentencing proceedings, together with the possession of the weapons. The Applicant explained that although he did not contest that charge, he was, in fact, effectively innocent of the offence of being in possession of money suspected of being stolen, in that the money was given to him by his grandmother who kept it on his behalf from wages earned by him. The $3000 which the Applicant described as having been paid for the purchase of the pistol was also provided by the grandmother under the same circumstances, from his wages which she kept for him. The Applicant told the Tribunal that he explained to his grandmother the purpose of the $3000 was to do some shopping for clothes.
All of these explanations, the Tribunal finds, are inherently incredible.
It was put to the Applicant that he was a member of an outlawed motorcycle gang, the Rebels. Although eventually in evidence, the Applicant admitted that he had made that revelation to prison authorities in order to obtain better conditions for himself, including protection, he denied any involvement in that outlawed motorcycle gang. The Applicant admitted that his brother was a member of such a gang, that he knew members of the gang but determinedly did not accept membership. The Tribunal finds the evidence given by the Applicant on this topic, inherently incredible.
There is, in the Tribunal’s mind, a cumulative effect in relation to the inherent credibility of these aspects of the evidence to which the Tribunal has referred. There is no doubt in the Tribunal’s mind that the Applicant has been deliberately untruthful on these topics in his evidence before the Tribunal. The untruthfulness of the Applicant in his giving of oral evidence is regarded as a particularly serious matter by the Tribunal.
It is quite feasible that in relation to some discreditable conduct, evidence given by a person in the Applicant’s position may wish to ameliorate or even deny some aspects of behaviour in order to present a better face to the Tribunal in circumstances where that Applicant is facing very serious consequences which include deportation permanently from Australia.
In this case, however, the Tribunal is in no doubt that the Applicant has deliberately lied on a number of important matters. Not only does that lying go to issues of credit but in this case, the lies affect the view the Tribunal forms of the Applicant’s protestations of reform and rehabilitation which, in turn, directly affects consideration of the risk which the Applicant poses to the community, should he be allowed to remain in Australia.
The Tribunal recognises that there is some evidence of rehabilitation which is a positive feature for the Applicant. In fact, in this case, the question of rehabilitation, and therefore risk, are highly relevant in the overall consideration of the Applicant’s matter before this Tribunal.
There is evidence that the Tribunal accepts that the Applicant has been drug-free since 2016. Furthermore, since the Applicant has been in immigration detention, there are no notations on his file to suggest otherwise than that he has been a well-behaved prisoner which indicates objectively, some evidence of rehabilitation.
However, even during the course of the Applicant’s custodial sentence, undoubtedly appreciating the seriousness of his position and having been warned already in the past of the consequences of criminal conduct (which the Applicant on his own evidence ignored), the Applicant committed offences of possession of a mobile phone on two occasions, the purpose of which possession was not made clear.
The Applicant was also involved in drug dealing, in the sense that he used a prison-use drug to trade for other commodities while incarcerated. The Applicant seemed to appreciate on his own evidence very little about the seriousness of this conduct which, in fact, amounted inside prison to a dealing in prohibited substances. This conduct is considered by the Tribunal particularly serious, made the more so by the fact that the Applicant must have appreciated by that time the likelihood of deportation or action against him for deportation.
The Applicant became involved in the serious offence of affray in which he described a retribution-type conduct by him, in respect of a fellow prisoner with whom he had a longstanding enmity. The Tribunal views this conduct as particularly serious.
There is further discussion below in respect of risk. However, the matters referred to above, in the Tribunal’s view essentially negate any positive evidence that the Applicant argues in his favour as to rehabilitation and minimisation of risk.
The Applicant relies on psychological reports produced in the past by Ms Cullen and Mr Baldacchino, and most recently by Mr Watson-Munro who saw the Applicant on 26 October 2021, which is a recent and contemporary report. Although the report does not specifically refer to risk, impliedly in the report is a positive view of the Applicant for the future and the Tribunal infers that the author assesses the risk posed by the Applicant in relatively low terms.
The Tribunal, however, has had the opportunity of seeing the Applicant give evidence, be questioned and cross-examined, and has had the advantage of assessing matters concerning the truthfulness of the Applicant’s evidence referred to above and the impact of that on risk.
Despite the positive evidence in the Applicant’s favour, which comes from the psychologists, his family and friends, all of whom describe a very positive change in attitude noted in the Applicant, the Tribunal is of the view that the cumulative effect of the Applicant’s untruthfulness before this Tribunal is of such a magnitude that, in the Tribunal’s view, the Applicant poses a significant risk of re-offending and that re-offending is of the type and dimension of all the sorts of offences that the Applicant has in the past committed, that is to say, offences of violence, offences against property and a general lawless disregard for rules and regulations imposed on the Applicant, demonstrated in the past by his poor behaviour in breaching probation, parole and community-based orders. This question of risk will be discussed below.
EXERCISING THE DISCRETION
In exercising the discretion in s 501CA(4) of the Act, the Tribunal must comply with Direction No. 90 (see s 499(2A) of the Act) which sets out the relevant considerations.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 8.1 of Direction No. 90 provides:
When considering protection of the Australian community, decision-makers should keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or 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.
Paragraph 8.1(2) of Direction No. 90 provides that decision-makers should also give consideration to:
(a)the nature and seriousness of the non-citizen's conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant's conduct to date
Sub-paragraph 8.1.1 of Direction No. 90 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes:
(a)without limiting the range of offences that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community (sub-paragraph 8.1.1(1)(a)(i)- (iii)):
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious (sub-paragraph 8.1.1(1)(b)(i)-(iv)):
(i) causing a party to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision- maker's opinion (for example, section 501(6)(c);
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph a)(ii), a)(iii) or b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2 of Direction No. 90 provides that decision-makers must have regard to the following:
4In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
5In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
(c)c) where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Seriousness of offending and future risk
Paragraph 8.1.2(2)(b) of Direction No. 90 requires the Tribunal to have regard to the likelihood of the person engaging in further criminal conduct, including evidence of re-offending and rehabilitation.
It is appropriate to consider the Applicant’s offending history against the Applicant’s developmental background which the Tribunal considers, according to various psychological reports, suggest a predisposition to the Applicant’s entire history of offending.
In fairness to the Applicant, weight should be given to that deprived background. The Applicant has a history of drug and alcohol abuse. The drugs of choice used by the Applicant were cannabis and cocaine which, on the evidence of Mr Watson-Monroe, the psychologist, was a fairly serious addiction.
It appears, and the Tribunal is prepared to accept, that since being in custody, the Applicant has remained drug-free and largely his behaviour whilst in custody and detention suggest an improvement in his attitude and therefore, the Tribunal accepts some evidence of rehabilitation.
The Applicant’s past offending is moderately serious in the scale of offending for a person of his age. The Applicant’s Children’s Court history is largely irrelevant to the Tribunal’s mind. At just 18 years of age, the Applicant was sentenced for robbery to an appropriate sentence of imprisonment, taking into account his youth and the lower-level circumstances surrounding that offence. The Applicant’s offending history continued throughout time until the most recent offences committed in 2016 in the community, involving possession of both a prohibited pistol and a shotgun, such possession contrary to a relatively recently ordered prohibition against such possession.
The Applicant has a large number of anti-social offending and property offences. However, the offences committed in relation to the possession of those weapons in 2016 is considered particularly serious having regard to the nature of the weapons themselves and the inferences that must fairly and properly be drawn from that possession. The Applicant was also convicted of possessing a sum of over $6000, suspected of being the proceeds of crime.
The Tribunal accepts that there are factors in the Applicant’s background and upbringing, together with diagnoses of anxiety and depression which have led, in what the Tribunal has accepted on the evidence, to be reasons and explanations for the Applicant’s past offending. Despite submissions by the Respondent to the contrary, these are matters which the Tribunal takes into account in assessing, overall, the moral culpability of the Applicant and leaves the Tribunal to conclude that some allowance must be given within this consideration to those factors which practically reduce the culpability of the Applicant’s past offending.
That combination of circumstances in his 2016 offending in the community is particularly concerning and the Tribunal regards those offences as extremely serious. The Applicant’s explanation is that those weapons were possessed because of a concern for his own safety is frankly, in the Tribunal’s view, not a matter which diminishes the grave seriousness of that offending. The possession of those weapons and the implications which that possession suggests, together with the concerning explanation by the Applicant as to the purpose of the possession, all lead to a conclusion that there is the gravest concern for public safety in those offences.
The remainder of the Applicant's offending history is varied and serious as well. Since being in custody, the Applicant has committed two modest offences of possessing a mobile phone. Whilst not objectively particularly serious, those offences show, at the time of commission at least, that the Applicant was unconcerned, even whilst in custody, about rules and regulations imposed upon him.
It is said in a number of places in the evidence, including statements by the Applicant to Mr Watson-Monroe, that the Applicant has been drug-free whilst in custody since 2016. There is no evidence to the contrary and the Tribunal accepts that evidence. Furthermore, the Tribunal accepts that there are no other breaches in relation to behaviour during custody or detention which is suggestive of the fact that the Applicant has undergone real and practical rehabilitation whilst in custody and the Tribunal, furthermore, accepts that.
The evidence discloses that the Applicant has found a new maturity and understanding of his offending and appreciates now the significance of his past offending, the magnitude of deportation from Australia and that these will act, in the future, as a protective factor against offending in the future.
The Tribunal accepts that there are protective factors, including the latter matter and family ties, the presence of his son in Australia, the assistance of family and his partner, to attempt to ensure that the Applicant will no longer commit offences or be a danger or risk to the Australian community.
The reality is, however, that the Applicant has been given sentences in the past with parole and other rehabilitative orders and has continued to re-offend. A clear warning as to deportation was ignored by the Applicant. Whilst the Tribunal views as genuine the Applicant’s determination and insistence that he has reformed, that reform has not been tested whilst the Applicant has had an opportunity to live in the community.
The Applicant’s past re-offending history cannot be ignored in making an assessment as to risk of future offending.
As to that risk, the Applicant has, in the past, been warned about the consequences of future offending. The Tribunal is not satisfied that the Applicant misunderstood or did not appreciate the significance of that warning. The simple fact of the matter is the Applicant continued to offend and in the Tribunal’s view, the offending in 2016 concerning the possession of prohibited weapons was an escalation in conduct and seriousness of behaviour. That conduct was committed when the Applicant, in 2016, was about 25 years of age. It cannot be said that he was a particularly youthful offender.
The Applicant’s former partner, the mother of his son, speaks positively for the Applicant remaining in Australia. There are a number of positive testaments for the Applicant and it is clear that there are aspects to his character and personality which are praiseworthy. Family members and friends speak highly of the Applicant and is taken into account by the Tribunal in his favour in the balancing exercise which must be carried out.
Furthermore, the Tribunal takes into account that as testament to the Applicant and his likely future behaviour, there is, the Tribunal accepts, the genuine offer of a job for him to go to. The offer of a job is something that the Tribunal accepts would act as protective factor against future offending.
In 2019, psychologists Mr Baldachino and Ms Cullen undertook a detailed assessment of the Applicant and concluded, in effect, that his risk of recidivism was low. Most recently, as discussed above, Mr Watson-Monroe formed a view that was very positive for the Applicant, noting that, in his opinion, the Applicant had matured, and that family members had noticed a change in his attitude during incarceration and detention, with a greater appreciation of responsibilities to the community. As the Applicant also expressed, Mr Watson-Monroe noted a determination by the Applicant to seek further assistance after release from detention.
The Tribunal accepts the submissions made by the Applicant’s representatives that significant weight should be given to these opinions in the overall determination of the risk of re-offending. It is correct that these matters should be given proper weight, however, in the Tribunal’s view, they are not solely determinative of the risk of re-offending. The Applicant’s past history both of offending, and opportunities given for reform, together with the former warning as to the consequences of further offending on his visa status are also relevant considerations, in the Tribunal’s opinion.
These proceedings are not punitive, in the sense that the investigation of the Applicant’s past offending should bring about further punishment. An assessment of the Applicant’s past criminal conduct and future risk is simply that: an assessment according to the precepts of Direction No. 90 and should act as no further punishment in the way offending is taken into account.
Nonetheless, the Tribunal is of the view that the Applicant’s past offending is particularly serious, even having regard to his relatively good conduct in recent years since being sentenced. Despite evidence which the Tribunal accepts of rehabilitation, overall, the past offending and the continuation of that offending which became more serious as discussed above, in the Tribunal’s view, leads to a conclusion that there is still a risk to the Australian community should the Applicant re-offend. The quality and nature of that re-offending is likely to be within the range of offences which the Applicant has in the past committed, including property offences, offences of violence, and the real likelihood of serious violence by the use of acquired weapons which because of their type and character, are used in the conduct of serious criminal behaviour. The Tribunal assesses the level of risk as both real and more than merely a low risk.
This consideration, overall, therefore weighs strongly against the Applicant.
PRIMARY CONSIDERATION 2 – FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
Paragraph 8.2(1) of Direction No. 90 provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.
Paragraph 4(1) defines family violence to mean ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful’.
Primary Consideration 2 is relevant in circumstances where (paragraph 8.2(2)):
(a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence (sub-paragraph 8.2(2)(a)); and/or
(d)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen has been afforded procedural fairness (sub-paragraph 8.2(2)(b)).
Paragraph 8.2(3) of Direction No. 90 provides that, in considering the seriousness of family violence engaged in by the non-citizen, the following factors must be considered, where relevant:
(a) the frequency of the non-citizen's conduct and/or whether there is any trend in increasing seriousness (sub-paragraph 8.2(3)(a));
(b) the cumulative effect of repeated acts of family violence (sub-paragraph 8.2(3)(b));
(c) rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (sub-paragraph 8.2(3)(c)):
(i) the extent to which the person accepts responsibility for their family violence related conduct (sub-paragraph 8.2(3)(c)(i));
(ii) the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.2(3)(c)(ii));
(iii) efforts to address factors which contributed to their conduct (sub- paragraph 8.2(3)(c)(iii)); and
(d) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (sub-paragraph 8.2(3)(d)).
There is no evidence to indicate that this consideration is relevant to this review.
PRIMARY CONSIDERATION 3 – BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.3(1) of Direction No. 90 provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision.
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 (sub-paragraph 8.3(2)).
Paragraph 8.3(3) provides that the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) provides a list of factors to be considered in determining the best interests of the child, which includes:
(a)the nature and duration of the relationship between the child and Applicant. 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 (including whether an existing Court order restricts contact) (sub-paragraph 8.3(4)(a));
(b)the extent to which the Applicant is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements (sub- paragraph 8.3(4)(b));
(e)the impact of the Applicant's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child (sub- paragraph 8.3(4)(c));
(f)the impact of the Applicant's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child (sub- paragraph 8.3(4)(c));
(g)the likely effect that any separation from the Applicant would have on the child, taking into account the child's or Applicant's ability to maintain contact in other ways (sub-paragraph 8.3(4)(d));
(h)whether there are other persons who already fulfil a parental role in relation to the child (sub-paragraph 8.3(4)(e));
(i)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child) (sub-paragraph 8.3(4)(f));
(j)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or has otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally (sub-paragraph 8.3(4)(g)); and
(k)evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct (sub-paragraph 8.3(4)(h)).
The Applicant has one male child, T, who is 9 years of age. There are a number of other children: three younger brothers whose ages are 17, 15 and 14; eleven cousins aged between 17 and 6 years of age; two nephews aged 5 and 3; and a Godson, aged 8 years of age.
As to the son, T, the Tribunal accepts an appropriate and strong emotional bond between father and son despite the fact that the Applicant has spent a considerable time in custody and detention during that child’s developing years. In the Tribunal’s view, that is simply not to the point in assessing this consideration. The psychologist, Mr Watson-Monroe, gave eloquent evidence of the nature of the relationship and the devastation which will occur psychologically to the child should the father be deported.
The Tribunal accepts this expression of the relationship and is accepted without hesitation. This alone gives powerful weight to this consideration in the Applicant’s favour, even although it is possible to imagine that the child could have some form of electronic or social media contact with the father should he be removed to New Zealand. The child’s mother and the Applicant are no longer in a relationship but apparently communicate appropriately with each other on account of the child. In the Tribunal’s opinion, no amount of social contact can take the place of personal physical contact and the Tribunal accepts the opinion expressed by Mr Watson-Monroe as to the devastating effect on his son should the Applicant be removed from Australia.
The Applicant has a Godson and on the evidence, it appears that the religious-based aspect of that relationship is one which is important both to the child’s family and the Applicant himself. In that regard, this relationship is considered by the Tribunal to be of some significance in terms of the interests of that minor child.
There is no specific evidence in this matter which relates individually to all the other minor children who comprise of the younger brothers, cousins, and nephews. The Tribunal notes that a number of these brothers and cousins are close to 17 years of age, although the Tribunal is required to regard them as minor children and it does so. There is nothing in the material to detract from the submission that all these minor children have an appropriate relationship with the Applicant although it is recognised that those children are not connected to the Applicant by way of any parental relationship. Nonetheless, the interests of all those children will be detrimentally affected, in the Tribunal’s view, should the Applicant be removed to New Zealand.
On all the material but particularly in relation to the natural child, T, of the Applicant, all the factors referred to above make this consideration weigh very powerfully in favour of revocation.
PRIMARY CONSIDERATION 4 – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.4(1) of Direction No. 90 provides as follows:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.
Paragraph 8.4(2) also provides that it may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial, abuse/material exploitation or neglect;
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f) worker exploitation.
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).
This consideration has been the subject of extensive judicial discussion and ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185). Although these principles are discussed in relation to the former Direction No. 79, those principles are not relevantly different in principle with respect to Direction No. 90.
It is not for the Tribunal to substitute its own view for the expectations of the Australian community by reference to the Applicant’s circumstances. The Tribunal rather, must give effect to the ‘norm’ stipulated in Direction No. 90 at 13.3(1). per Stewart J and Charlesworth J (93); (100 to 104); (68).
An appropriate consideration of this statement of community expectation should be assessed having regard to the length of time the Applicant has spent in Australia and the age during which much of his offending was committed amongst other things.
Nonetheless, this consideration, because of the Applicant’s past offending in particular, must weigh strongly against the Applicant.
OTHER CONSIDERATIONS
A decision-maker must also take into account Other Considerations where relevant. These considerations include (but are not limited to) (paragraph 9(1) Direction No. 90):
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims;
(d)links to the Australian community, including:
(i) strength, nature and duration of ties to Australia;
(ii) impact on Australian business interests.
INTERNATIONAL NON-REFOULEMENT OBLIGATIONS
The considerations at paragraph 9.1 of Direction No. 90 include (but are not limited to):
(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has Convention and Protocol non-refoulement obligations.
(2)In making a decision under s 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct.
(3)However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa.
(4)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa in a request to revoke the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).
(5)International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.
(6)It may not be possible at the section 501/section 501CA stage to consider nonrefoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of nonrefoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.
(7)Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the noncitizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.
(8)If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international nonrefoulement obligations.
There is no evidence to indicate that this consideration is relevant to this review.
EXTENT OF IMPEDIMENTS IF REMOVED
Paragraph 9.2(1) of Direction No. 90 provides:
(1) Decision-makers must consider the extent of any impediments that the noncitizen 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.
The Applicant makes the following submission at paragraph 21 of the Applicant’s Statement of Facts, Issues and Contentions:
‘The Applicant has lived in Australia for most of his life and all of his formative years, and considers it to be his home. His immediate and extended family all live in Australia and continues to support him. There is little by way of support for him, were he to be removed to New Zealand’.
The Respondent submits that the Applicant’s country of citizenship is New Zealand and is a country which is linguistically and culturally very similar to Australia, with standards of employment, health care, and social support likewise, comparable in New Zealand to those in Australia.
Whilst that is undoubtedly true, it is clear to the Tribunal that someone in the Applicant’s position who has, and perhaps continues to suffer, emotional consequences from his early childhood and upbringing, will no doubt suffer emotional and social difficulties in being returned to New Zealand and having to establish a new life for himself with little or no support.
Furthermore, there are real impediments, the Tribunal finds, that the Applicant would suffer, as well as those of his family likewise, from the separation between the two, particularly the Applicant’s former partner’s child and the elderly grandmother with whom the Applicant, the Tribunal accepts, has a deep emotional connection.
Unlike in Australia, the Applicant would have no immediate job prospects. The Applicant’s health is such that there are unlikely to be, ultimately, any impediments to his eventually finding work which in Australia has been in the construction industry, including scaffolding work.
The Tribunal considers that the extent of impediments referred to above will be faced keenly by the Applicant and those impediments lend significance to the ultimate finding by this Tribunal that this consideration weighs quite strongly in the Applicant’s favour.
IMPACT ON VICTIMS
Paragraph 9.3(1) of Direction No. 90 provides:
Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims…
There is no evidence to indicate that this consideration is relevant to this review.
LINKS TO THE AUSTRALIAN COMMUNITY
Reflecting the principles of Direction No. 90 at paragraph 5.2, decision-makers must have regard to Direction No. 90, paragraphs 9.4.1 to 9.4.2 provided below.
The strength, nature and duration of ties to Australia (Paragraph 9.4.1)
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non citizen has to the Australian community. In doing so, 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.
Impact on Australian business interests (Paragraph 9.4.2)
(3) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant arrived in Australia aged approximately 4 years old and has spent the entirety of his life in Australia. This, alone, is a powerful factor in this consideration. All of the Applicant’s family ties are in Australia, particularly those with his son, his present partner, and a relationship with his ex-partner which is of significance because of that relationship affecting the contact the Applicant has with his son. Furthermore, the Applicant has differing relationships with his various family members including his grandmother, mother, siblings, cousins, nephews and a Godson. It is not merely the mathematical addition of these people that gives weight to this consideration but the Tribunal accepts that all these relationships are important to the Applicant and vice-versa, those persons who would naturally be emotionally affected. There will also be some financial consequences should the Applicant be removed from Australia.
It is both relevant and in the Applicant’s favour to recount that the Applicant has worked regularly in Australia when not in custody and has participated in community sport, playing football and coaching. It is a separate, relevant factor that the Applicant has maintained an association with, and being an active member in, his church. The Tribunal notes that the presence of religious faith is an important aspect in the Applicant’s life and with his family.
There is, on the evidence, no impact on Australian business in this matter.
It is apparent to the Tribunal that the Applicant has significant ties to Australia through his family and to his community through employment, his local church and community sport. Despite the Respondent’s submission that these factors are undermined by the Applicant’s past incarceration, which is not accepted by the Tribunal, it is apparent, in the Tribunal’s opinion, that this consideration weighs strongly in the Applicant’s favour, not least because of the length of time the Applicant has actually lived in Australia which is, effectively, all his life.
On all relevant factors, under this consideration, therefore, this consideration weighs strongly in the Applicant’s favour.
CONCLUSION
There are a number of factors discussed above which weigh strongly in the Applicant’s favour for revoking the mandatory cancellation of the Applicant’s visa. Whilst giving full weight to these considerations, in the Tribunal’s opinion all those matters are substantially outweighed by the past serious behaviour of the Applicant and in particular, the recent offending in 2016, followed by other concerning behaviour whilst in custody.
The Tribunal is also of the opinion, as discussed above, that there is a real risk of the Applicant offending in the future and such re-offending is likely to be at a risk assessment, in the Tribunal’s opinion, of more than merely a low risk. Furthermore, that offending, the Tribunal assesses, is likely to be of a character comprehending the various types of past offending by the Applicant, including offences of violence which would likely affect the Australian community.
The Tribunal is of the opinion that past offending and future risk of re-offending by the Applicant in this case, powerfully outweigh all other positive factors in the Applicant’s favour. The Tribunal is of the opinion that the mandatory cancellation should not be revoked as there is no other demonstrated reason to do so.
ORDER
The decision under review is affirmed.
I certify that the preceding 115 (one hundred and fifteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC
.......................[SGD]................................................
Associate
Dated: 9 December 2021
Date of hearing: 2 December 2021 Counsel for the Applicant: Mr Nick Poynder Solicitors for the Applicant: Mr Gareth Lewis Solicitors for the Respondent: Mr Oliver Morris
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