Martin and Minister for Immigration and Border Protection (Migration) [2018] AATA 1289 (15 May 2018)
Division:GENERAL DIVISION
File Number(s): 2018/0981
Re:Colin Martin
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:15 May 2018
Place:Melbourne
The decision of the delegate of the Minister made on 16 February 2018 to refuse to grant Mr Martin a Bridging E (Class WE) Visa under section 501(1) of the Migration Act 1958 is affirmed.
........................................................................
Senior Member A. Nikolic AM CSC
MIGRATION – bridging visa refusal – failure to pass the character test – numerous convictions including for violent offences – risk of engaging in criminal conduct if allowed to remain in Australia – relevant primary considerations outweigh all other considerations – decision affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Re Martin and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 468
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
15 May 2018
INTRODUCTION
The Applicant, Mr Colin Martin, was born in Ontario Canada on 8 January 1992[1] and arrived in Australia on 21 October 1994 as an infant.[2] He was granted a three-month Visitor (Class TR) Visa, which expired on 21 January 1995.[3]
[1] Exhibit R1 (G-documents numbering 157 pages), p.69.
[2] Ibid 71.
[3] Ibid.
Almost twenty years later in 2014, Mr Martin made three applications for evidence of Australian citizenship, all of which were deemed invalid. On 19 March 2015 he applied for Australian citizenship by descent[4] and was advised of his unlawful immigration status. On 30 July 2015 Mr Martin was granted a Bridging E (Class WE) Visa (Bridging Visa) in order to regulate his immigration status. That visa ceased on 31 August 2015.[5]
[4] Respondent’s Statement of Facts, Issues and Contentions (RSFIC) dated 20 April 2018, paragraph 8.
[5] Exhibit R1, p.71.
Mr Martin’s Australian citizenship application was refused on 27 April 2017 on the basis that he did not pass the character test.[6] His appeal of that decision to the Administrative Appeals Tribunal (Tribunal) was unsuccessful.[7]
[6] RSFIC, paragraph 9.
[7] Martin v Minister for Immigration and Border Protection (Citizenship) [2018] AATA 468, (13 March 2018) >
On 8 June 2017, after being released from a custodial sentence arising from his criminal offences, Mr Martin was taken into immigration detention where he presently remains.[8]
[8] Ibid 16, paragraph 6.
Soon after being taken into immigration detention, Mr Martin applied for a further Bridging Visa.[9] On 29 June 2017 he was issued with a Notice of Intention to Consider Refusal (Notice) of his Bridging Visa application.[10] On 1 September 2017 a criminal history report dated 30 August 2017 was also provided to Mr Martin.[11] Upon the request of Mr Martin’s legal representative at that time, a number of extensions of time were granted by the Department of Immigration and Border Protection (the Department), so that Mr Martin could obtain material in support of his application.[12]
[9] Exhibit R1, pp.27-31.
[10] Ibid 72-77.
[11] Ibid 79-80.
[12] Ibid 82-84; 86-88; 91; 96; 100-106;110.
On 16 February 2018, a delegate of the Department refused Mr Martin’s Bridging Visa application under section 501(1) of the Migration Act 1958 (the Act).[13] The delegate was not satisfied that Mr Martin passed the character test as a consequence of his conviction in the County Court of Victoria for Armed Robbery, resulting in a sentence of two years detention in a Youth Justice Centre. The delegate further decided to exercise the discretion to refuse to grant Mr Martin’s Bridging Visa. By way of application lodged on 1 March 2018, Mr Martin asked the Tribunal to review the delegate’s decision.[14]
[13] Ibid 16-24.
[14] Ibid 3-9.
The hearing was held on 7 May 2018. Although Mr Martin was previously legally represented, including in relation to his citizenship matter,[15] the Tribunal was advised on 26 March 2018 that Mr Martin’s lawyers had ceased to act for him. Mr Martin was self-represented at the hearing. The Respondent was represented by Ms Eleanor Cannon, a solicitor with Clayton Utz.
[15] Ibid 45.
For the reasons that follow, the decision of the delegate of the Minister made on 16 February 2018 to refuse to grant Mr Martin a Bridging Visa under section 501(1) of the Act is affirmed
IMPLIED UNDERTAKING
On 20 April 2018, the Respondent requested a release from any implied undertaking applying to documents previously lodged with the Tribunal, relating to Mr Martin’s appeal against the refusal of his citizenship application. On 2 May 2018 Mr Martin advised the Tribunal by phone that he had no objection.[16] At the commencement of the current hearing I confirmed Mr Martin’s understanding of the Respondent’s proposal and his agreement that I have regard for documents lodged for the citizenship matter. Mr Martin requested in particular that I have regard for supportive affidavits and references.
[16] A file note to this effect was produced by a Tribunal officer.
In considering the Respondent’s request, I decided that the citizenship matter heard in March 2018 and Mr Martin’s current application both encompassed considerations relating to his conduct, character and legal status in Australia. It therefore follows that the purposes for which the Respondent intends to use documents lodged for the citizenship matter, were not collateral or ulterior to the original purpose for which they were produced. I consequently released the Respondent from any implied undertaking that may apply to these documents and advised the parties that I would also have regard for affidavits and a reference supportive of Mr Martin. I note in this regard that neither Mr Martin nor his former legal representative had lodged any material for the present matter, as provided for by the Tribunal’s direction dated 7 March 2018.
EVIDENCE
National Police History
A National Police History check reveals that Mr Martin has been convicted of numerous criminal offences between 2007 and 2015 as follows:
Court Date Offence Court Result Ringwood Magistrates’ Court 10/09/2015 Unlicensed Driving (2 Charges) Refuse Undergo Breath Test
Use Unregistered Motor Vehicle - Highway
Convicted and a Community Correction Order for 6 MONTHS.
Unpaid Community Work Perform 62 hours of community work.
Ringwood Magistrates’ Court 05/03/2015 Intentionally Damage Property (3 charges) Convicted and a Community Correction Order for 15 MONTHS.
- Unpaid Community Work Perform 100 hours of community work.
- Pay compensation $2069.30
Ringwood Magistrates’ Court 05/03/2015 Dishon U/take in Retention Stolen Goods
Trespass on Land Owned by Roads Corp (3 charges)
- Convicted and a Community Correction Order for 15 MONTHS.
- Unpaid Community Work Perform 100 hours of community work.
Ringwood Magistrates’ Court 05/03/2015 Intentionally Damage Property - Convicted and a Community Corrections Order for 15 MONTHS.
- Unpaid Community Work Perform 100 hours of community work.
- Pay compensation $2069.30
Ringwood Magistrates’ Court 18/08/2014 Refuse Undergo Breath Test (2 Charges) - ON EACH CHARGE:
- Convicted and a Community Correction Order for 12 MONTHS.
- Licence cancelled and disqualified for 2 years.
Ringwood Magistrates’ Court 18/08/2014 Drive Whilst Disqualified (3 charges) - ON EACH CHARGE:
- Convicted and a Community Correction Order for 12MONTHS.
- DISQUALIFIED from driving for 6 months.
Ringwood Magistrates’ Court 18/08/2014 Theft-From Shop (Shopsteal) - Convicted and a Community Correction Order for 12 MONTHS. Ringwood Magistrates’ Court 18/08/2014 Carry Dangerous Article In Public Place - Convicted and a Community Correction Order for 12 MONTHS. Ringwood Magistrates’ Court 07/11/2011 Criminal Damage (Intent Damage/Destroy) (8 Charges) ON EACH CHARGE:
3 months detention in a Youth Training Centre. Part concurrent order upon all other directions for detention presently being served.
Period to be served part concurrently is 3 months.
Melbourne County Court 04/11/2011 Armed Robbery 2 YEARS YOUTH JUSTICE CENTRE
To pay $400.00 compensation
Ringwood Magistrates’ Court 28/02/2011 Attempt To Commit Indictable Offence
Go Equipped To Steal/Cheat
ON EACH CHARGE:
9 months detention in a Youth Training Centre.
Ringwood Magistrates’ Court 28/02/2011 Attempt To Commit Indictable Offence
Drunk In A Public Place
Theft-From Shop (Shopsteal)
Unlicensed Driving (3 Charges)
Theft
Burglary
Theft From Motor Vehicle
Theft Of A Motor Vehicle
Drive In A Manner Dangerous
Fail To Answer Bail
ON EACH CHARGE:
9 months detention in a Youth Training Centre.
Ringwood Magistrates’ Court 28/02/2011 Theft 9 months detention in a Youth Training Centre.
Pay compensation $1200.00
Ringwood Magistrates’ Court 28/02/2011 Traffick Prescribed Drugs 9 months detention in a Youth Training Centre. Ringwood Magistrates’ Court 28/02/2011 Poss pres Graffiti Imp on prop of tran co With conviction, fined an aggregate of $750.00 Ringwood Magistrates’ Court 28/02/2011 Take/Send Anything Into A Prison With conviction, fined an aggregate of $750.00 Melbourne Children’s Court 04/06/2010 Theft Of A Motor Vehicle
Reckless Conduct Endanger
Serious Injury
Unlicensed Driving
Without conviction, adjourned to 3/6/2011.
The offender is released upon entering a Good Behaviour Bond in the amount of $200.00
The offender is to be of good behaviour during the period of the Good Behaviour Bond.
Ringwood Magistrates’ Court 30/09/2009 Theft Of A Motor Vehicle Theft ON EACH CHARGE:
The defendant is convicted and ordered to be detained in a Youth Justice Centre for a period of 3 months.
Melbourne Children’s Court 19/05/2009 Criminal Damage (Intent Damage/Destroy) The defendant is convicted
and ordered to be detained
in a Youth Justice Centre for a period of 7 days.
Base sentence.
Melbourne Children’s Court 19/05/2009 Criminal Damage (Intent Damage/Destroy) (24 Charges) ON EACH CHARGE :
The defendant is convicted
and ordered to be detained
in a Youth Justice Centre for a period of 7 days.
Melbourne Children’s Court 19/05/2009 Criminal Damage (Intent Damage/Destroy) The defendant is convicted and ordered to be detained in a Youth Justice Centre for a period of 7 days.
Pay compensation $500.00 as Martin, Colin Lee
Melbourne Children’s Court 04/03/2009 Breach of Youth Supervision Order
Proven.
Melbourne Children’s Court 04/03/2009 Breach Re 27/08/2008 Intentionally Damage Property (13 Charges)
Knowingly Deal/Conceal Proceeds Of Crime
Criminal Damage (Intent
Damage/Destroy)
Wilfully Damage, Injure,
Trespass
Attempt Theft
Possess Cannabis
Damage/Deface By Graffiti-
Ptc/Adj Prop
ON EACH CHARGE:
The defendant is convicted and ordered to be detained in a Youth Justice Centre for a period of 9 months.
Melbourne Children’s Court 04/03/2009 Breach Of Youth Supervision Order Proven Melbourne Children’s Court 04/03/2009
Breach Re 27/08/2008 Criminal Damage (Intent
Damage/Destroy) (2 Charges)
Theft Of A Motor Vehicle
Drive Motor Vehicle Without
Licence
ON EACH CHARGE:
The defendant is convicted and ordered to be detained in a Youth Justice Centre for a period of 9 months.
Melbourne Children’s Court 04/03/2009 Theft Of A Motor Vehicle (3 Charges)
Reckless Conduct Endanger Serious Injury
Unlicensed Driving (2 Charges)
Enter Building With Intent To Steal
Theft (3 Charges)
Theft-From Shop (Shopsteal) (6 Charges)
Unlawful Assault (3 Charges)
Obtain Property By Deception (2 Charges)
Burglary
Handle/Receive/Retention
Stolen Goods
Procure Hire Vehicle -
Misrepresentation
Aggravated Burglary-
Person Present
ON EACH CHARGE:
The defendant is convicted
and ordered to be detained
in a Youth Justice Centre for a period of 9 months.
Melbourne Children’s Court 04/03/2009 Consume Liquor Under 18
Years (2 Charges)
ON EACH CHARGE:
The defendant is convicted and ordered to be detained in a Youth Justice Centre for a period of 9 months.
Melbourne Children’s Court 04/03/2009 Breach of Youth Supervision Order Proven Melbourne Children’s Court 04/03/2009 Breach Re 27/08/2008
Criminal Damage (Intent
Damage/Destroy)
Intentionally Damage
Property (2 Charges)
Wilfully Damage Property (2 Charges)
The defendant is convicted and ordered to be detained in a Youth Justice Centre for a period of 9 months.
Ringwood Children’s
Court
27/08/2008 Criminal Damage (Intent
Damage/Destroy)
Theft Of A Motor Vehicle
Drive Motor Vehicle Without Licence
Fail To Wear Motor Bike
Helmet
Smoke Tobacco On Part Of A Carriage
Travel On Part Rail Veh Not For Travel
Fail Prod Valid Ticket-
Passenger Vehicle (2 Charges)
Refuse/Fail To Comply With Request
Place Feet On Furniture In
Carriage
Use Offensive Language In A Rail Vehicle
Resist Lawful Request Of An Officer (2 Charges)
Spit In Rail Premises
Use Indecent Language In Rail Vehicle
Without conviction, the defendant is released on a Youth Supervision Order for a period of 12 months to 26/8/2009. Ringwood Children’s
Court
27/08/2008 Criminal Damage (Intent Damage/Destroy) Without conviction, the defendant is released on a Youth Supervision Order for a period of 12 months to 26/8/2009. Ringwood Children’s Court 27/08/2008 Intentionally Damage Property (13 Charges)
Knowingly Deal/Conceal Proceeds Of Crime
Wilfully Damage, Injure, Trespass
Attempt Theft
Damage/Deface By Graffiti- Ptc/Adj Prop
Without conviction, the defendant is released on a Youth Supervision Order for a period of 12 months to 26/8/2009. Ringwood Children’s Court 27/08/2008 Criminal Damage (Intent Damage/Destroy) Without conviction, the defendant is released on a Youth Supervision Order for a period of 12 months to 26/8/2009. Ringwood
Children’s
Court
27/08/2008 Possess Cannabis Without conviction, the defendant is released on a Youth Supervision Order for a period of 12 months to 26/8/2009. Ringwood
Children’s
Court
27/08/2008 Breach Of Probation Order Proven Ringwood
Children’s
Court
27/08/2008 Breach re 28/11/2007
Criminal Damage (Intent Damage/Destroy)
Intentionally Damage Property (2 Charges)
Wilfully Damage Property (2 Charges)
Breach Of Probation. Order
Cancelled. Youth Supervision Order For 12 Months.
Ringwood
Children’s
Court
28/11/2007 Possess Liquor Under 18 Years
Criminal Damage (Intent Damage/Destroy)
Fail Prod Valid Ticket- Passenger Vehicle
Defendant Placed On Probation For A Period Of 12 Months Ringwood
Children’s
Court
28/11/2007 Breach Of Probation Proven Ringwood
Children’s
Court
28/11/2007 Breach Re 21/03/2007
Criminal Damage (Intent Damage/Destroy)
Intentionally Damage Property (2 Charges)
Wilfully Damage Property (2 Charges)
Breach Of Probation. Order Cancelled. Without Conviction
Probation for 12 months
Ringwood
Children’s
Court
21/03/2007 Criminal Damage (Intent Damage/Destroy)
Intentionally Damage Property (2 Charges)
Wilfully Damage Property (2 Charges)
Without conviction, the defendant is placed on Probation for a period of 6 months to 20/9/2007. Summonsed documents relating to Mr Martin’s criminal offending were tendered into evidence during the hearing without objection.[17] Sentencing remarks were available from Mr Martin’s conviction for armed robbery,[18] which were delivered by His Honour Judge Wischusen in the Melbourne County Court on 4 November 2011. These sentencing remarks state in part:
[17] Exhibit R2.
[18] Ibid 423-435.
‘Colin Lee Martin, you have pleaded guilty to one count of armed robbery. The maximum penalty for armed robbery is 25 years imprisonment.
The general circumstances in which the offending occurred is set out in the Prosecution Opening…the accuracy of which was accepted by you through your counsel.
Shortly stated, on the evening of 23 February 2011, you and your co-offender whose name is Knowles, walked past the front door of the Subway store…You then entered the store where two 17-year-olds and the 20-year-old assistant manager were present. You and Knowles were wearing hooded tops which were pulled over your heads. You threatened two of the people in the store saying “don’t move or I’ll cut ya.” Knowles, who had a yellow Stanley knife in his hand, then approached one of the 17 year olds and held it about 30 centimetres away from his throat, telling him to “open the fuckin till”. The till was opened and you removed about $400 in notes.
Knowles then told the 17 year old to open the safe. When he responded he did not know how, Knowles said to him “open it or I’ll stab you”. The safe was eventually opened and you removed about $450 in coins…Meanwhile Knowles instructed the people in the shop not to move with the threat “or I’ll cut your fuckin throat”. You both then ran from the store and drove away in a vehicle you had recently purchased.
…
Before leaving the circumstances of the offending, I should mention one matter that was raised on your behalf on the plea and that is…you were not the leader or the main offender in this robbery enterprise. As pointed out in discussions with counsel, this was clearly a premeditated armed robbery. The Subway store had been cased by both of you. The getaway car was parked nearby…Further, you removed the cash from the till and the coins from the safe.
I have carefully reviewed the video (Exhibit 2) from the CCTV in the store, and whilst I accept that Knowles was carrying the weapon and did more of the talking, I’m satisfied beyond reasonable doubt that you played a major role in this armed robbery, although I do accept that you were not the leader.
You are 19 years of age and…have a long history of appearances before the Children’s Court with seven or so appearances dating back to early 2007 for offending that includes theft, drug offences, criminal damage, driving offences, aggravated burglary and breaches of probation.
Your compliance with community-based orders that have been made for your prior offending has been poor.
Shortly after your arrest for this offence, you were sentenced to a period of nine months detention in a Youth Justice Centre in the Magistrates’ Court. You have been in custody since 23 February 2011. The sentence you are currently serving is nearly complete.
…
I have taken into account your personal circumstances…
You have two siblings, an older brother and a younger half brother. Your parents separated in the mid 2000’s and you have since then resided with your mother.
Your schooling was not a rewarding experience for you. You change schools after grade 4 and were disappointed with the new school. You were kicked out of high school after a year and spent a short period of time in a special behavioural school, then you attended the Croydon Community School where you got into trouble concerning fights. Your education did not progress past Year 7.
In your life you have not done much work and no job, since leaving school, has lasted for longer than six months. Since leaving school you have associated with the peer group in which unemployment, substance abuse and offending appears to be the norm. Substance abuse has been a feature of your criminal history. This offending was undertaken to fund the purchase of amphetamines.
The disruption to your schooling seems, in part at least, to have been the result of the late detection of your intellectual disability which was not identified or assessed until you were 14 years of age. It has been reassessed quite recently and that assessment confirms that your full-scale IQ assessed at 67 is in the extremely low range. The psychologist who conducted the assessment regarded your performance upon testing as reliable and that your intellectual profile and adaptive behaviour deficits were consistent with the categorisation of mild intellectual disability. The author also expressed the view that your intellectual disability contributed both to your disengagement from schooling and to your becoming entrenched with an anti-social peer network. She also notes that you are resistant to the notion that you have any special needs.
It appears from the reports that your reluctance to accept the fact of your disability has meant that you have not engaged usefully with Disability Client Services and you have never been the subject of a Disability Services Justice Plan.
…
…pre-sentence reports as to your suitability for Youth Justice Centre detention …show that your behaviour since being detained at Malmsbury early this year has been disruptive and damaging to the administration of that centre.
… despite advice about how important it was for you to stop causing trouble, you were unable to change, and it was said that this demonstrated the significance of your intellectual disability and the fact of your immaturity and the fact of your susceptibility to peer group pressure and your lack of insight...
Difficult though this might be for those charged with the administration of the Youth Justice Centre, it was submitted that these failures showed how great the necessity was for you to have special management of your persistent immaturity and inability to address your behaviour or shortcomings.
…
I have given consideration to these submissions as to where you should be detained and I shall begin by saying that I have the greatest sympathy for the authors of the careful and detailed pre-sentence reports and for the officers at Malmsbury who have had to deal with your persistently bad behaviour whilst in detention. It is clear from their reporting that they would much prefer it if you were not in the Youth Justice System at all, as your recalcitrant behaviour has proved difficult to alter, despite the admirable persistence and patience they have shown towards you.
On the other hand…I am persuaded that your poor behaviour and your apparent inability to alter it, results in substantial part from your intellectual disability, your lack of insight and, for your years, your immaturity.
…
Though I regard your prospects of rehabilitation as marginal, I do think that your best chance of rehabilitation is by remaining in the Youth Justice System…
… I note that it is always open to the Youth Parole Board to move you to an adult prison upon proper consideration.
Against the matters that have been put in mitigation of penalty on your behalf, must be balanced the fact that this was very serious offending. It was committed in company against very young victims with foresight and planning, it was carried out wearing a hooded garment and was accompanied by frightening threats of violence and of serious injury and by the means to carry them out. Although no Victim Impact Statements were put in evidence, inspection of the video shows how threatening your behaviour was.
…
Pursuant to s.6AAA of the Sentencing Act, I declare that had it not been for your plea of guilty, I would have sentenced you to a term of imprisonment of three years in a Youth Justice Centre.
Mr Martin’s National Police Record also disclosed a number of pending charges from 2016 and 2017, which are referred to in the Respondent’s Statement of Facts, Issues and Contentions. As these charges are yet to be determined by a court, I advised the parties that I would have no regard for them in determining Mr Martin’s application and drew no negative inference from this material. I also informed Mr Martin that he had the right not to answer questions about any pending charges, consistent with his common law right against self-incrimination.
Evidence of Mr Colin Martin
In his application to the Tribunal dated 1 March 2018, Mr Martin submits that the decision to refuse his visa is ‘erroneous,’ because he is of good character. He states:
‘The decision-maker fails to take into account I have lived in Australia since the age of 2. I have not returned to Canada nor do I have any ties there. I was educated in Australia and hold a Medicare card. The decision to refuse my bridging E visa application means I cannot continue on with my life as I have lived it for the past 22 years. I am scared to go back to Canada as I have no family there, friends or networks. I will have no financial support in Canada. I believe my actions in the past few years show that I am not a danger to the community and my past conduct is not a reflection of who I am today or have been for the past couple of years.’
In his affidavit dated 13 December 2017,[19] Mr Martin expresses a determination ‘to get counselling’ when released from detention and to ‘stay off drugs.’ In his oral evidence he acknowledged that his criminal convictions were ‘very serious,’ but submits that at the time of his offences he was ‘young and immature’ and ‘not in a very good headspace.’ He contends that being in detention away from family and friends had scared him and he was now determined to rehabilitate himself. Mr Martin said the prospect of returning to Canada scared him because he had ‘no supports,’ and he wants a chance to ‘show everyone’ that he could change. He claims to have set ‘a lot of goals to move forward with [his] life’ and says his parents would be heartbroken if he was returned to Canada.
[19] Exhibit A1.
Mr Martin said he had work lined up in the construction industry as a labourer. When asked to elaborate on that offer of work, Mr Martin said the person’s first name was ‘Phil,’ but he could not recall Phil’s last name or business name. He said that if permitted to remain in Australia, he would live with his father, work, undertake counselling, and stay away from the bad influences he was previously exposed to. Mr Martin expressed confidence about doing better in the future due to the support of his parents, who he said had been 100% supportive of him.
During cross-examination, Mr Martin was taken through aspects of his criminal history, key features of which were:
(a)He could not recall the circumstances of his conviction for unlawful assault in March 2009, stating that he thought the incident related solely to a verbal argument.
(b)In relation to his conviction for armed robbery, Mr Martin agreed that he was present with two other males at the Subway store, but cavilled in relation to details contained in the sentencing remarks, the accuracy of which he had previously accepted through his counsel.[20] Mr Martin claimed he was wearing a t-shirt and not a hooded top with the hood over his head at the time of the robbery.[21] He claimed not to have threatened anyone in the store, despite the sentencing remarks stating Mr Martin had approached the store attendant and said ‘Don’t move or I’ll cut ya.’[22] Mr Martin’s evidence was that although present during the armed robbery, he ‘froze,’ characterising his participation as the result of being drug-affected and making a ‘stupid, quick decision.’ He claimed to have been ’sort of caught up in it’ and ‘in the wrong place at the wrong time, with the wrong group.’ He said at the time of this offence he was ‘in a very bad place,’ contending that he is ‘not a violent person.’ He acknowledged that the victims were scared at the time of the robbery, submitting that he now felt ‘100% remorseful’ for them.
(c)When asked about his conviction in August 2014 for carrying a dangerous article in a public place, Mr Martin said he could not remember the circumstances. When directed to the relevant charge sheet referring to carriage of a box cutter,[23] Mr Martin recalled the incident, stating that he carried the box cutter for personal protection. When Mr Martin was referred to the explanation he gave to the arresting constable that he carried the box cutter for his ‘canvas art,’[24] he stated that the box cutter was also used at times for canvas art.
(d)Mr Martin agreed that he had several charges for burglary and theft offences, which he submitted were because he needed to support his drug habit. He agreed that he a number of convictions for car theft, which he again attributed to being ‘young, stupid’ and not ‘necessarily thinking straight.’ Mr Martin could not initially recall an incident in June 2010, in which he was driving a stolen car that had collided with another vehicle. He claimed to have been ‘heavily drug-affected’ and only realised what had occurred when he woke up in police custody. When asked about being found with a stainless steel knife and a wallet from the vehicle he had broken into, Mr Martin stated that the ‘people [he] was associating with were doing these kinds of things.’ This repeated a frequent submission from Mr Martin that bad influences were a key factor in his offending, but he now realises the unacceptable consequences of those associations. If allowed to remain in Australia, he intends residing in a regional location with his father, far removed from these negative influences and the environment in which his offending occurred.
(e)Mr Martin agreed he had been convicted of several driving offences, including an occasion when he caught speeding in a stolen vehicle at 106 kph in a 60 kph zone. When asked if he had lost control of the vehicle and attempted to ‘decamp’ from the location as recorded in the Summary of Charges,[25] Mr Martin cavilled about losing control, stating he had pulled over. He also disagreed that he had attempted to ‘decamp from the scene,’ but agreed that others in the vehicle had fled. Mr Martin stated that he had not stolen the vehicle he was driving, but had been picked up in it by the person who had stolen it. He again characterised this offending as the result of ‘a young, stupid decision.’
(f)In relation to an incident on 6 January 2013 where he had refused to accompany police for a breath test after a preliminary test indicated the presence of alcohol,[26] Mr Martin agreed that he was legally prohibited from driving at that time, characterising it as a ‘stupid decision.’
[20] Exhibit R2, p.424, paragraph 2.
[21] Ibid 434.
[22] Ibid.
[23] Ibid 274.
[24] Ibid 139.
[25] Ibid 51-52.
[26] Ibid 246-247.
Mr Martin’s evidence in relation to his drug use is that it has been a major contributor to his offending. He claims to have first ‘dabbled’ in marijuana, alcohol and heroin around the age of 14, submitting that his drug use has ‘continued off and on, but not every day.’ He said heroin had the worst impact on him and had been an issue since he was ‘15 or 16.’ He had made attempts to stop using heroin through counselling, both as a result of court orders and on several other occasions when he ‘needed help or support.’ When asked what he had learned as a result of counselling, Mr Martin responded: ‘certain things, it’s hard to explain – urges and stuff like that…we worked on boundaries and urges and how to stop what triggers the urges.’ When asked about references to his lack ofcompliance with court-ordered rehabilitation, Mr Martin conceded: ‘Sure I missed a few appointments.’
Mr Martin claims to have had periods of total abstinence from drugs, including a period of ‘three and a half years,’ before relapsing in approximately December 2016/January 2017. During this period he says he worked as a spray painter and labourer for approximately two years, which he said was the longest time he had been in paid employment. He also claims to have a forklift licence and certificates relating to the operation of a bobcat, front-end and back-end loaders. Mr Martin agrees he had difficulty retaining employment when he was younger, because he was ‘immature and didn’t want to work.’ The breakdown of a relationship with his fiancé approximately 17 months ago had disrupted the progress he claims to have made, causing him to relapse into drug use. After that, he took ‘heroin every day’ and ‘methamphetamine every now and then,’ before getting onto a methadone program approximately two months before being taken into detention. He has been on a methadone program since, except for an occasion where he was cut off because of ‘circumstances in police cells.’ Mr Martin said his eventual goal was to change over from methadone to Suboxone – an opioid used to treat opioid dependence, and he has had several discussions with medical staff to that effect.
If allowed to remain in Australia, Mr Martin said he wanted to work as a labourer in construction, landscaping, and get back into some ‘art stuff – getting paid to spray paint murals on shops and gyms.’ When asked about multiple graffiti-related offences in his National Police Record, Mr Martin said that was just a ‘hobby’ and that he used to be paid to do it but didn’t get permission on the occasions in question and was charged.
Mr Martin was provided with a number of opportunities during his evidence in chief and following cross-examination to address issues that were adverse to his application. His responses can be summarised as follows:
(a)That the evidence relating to his numerous convictions made him ‘look like a bad person – a violent person – like the Devil,’ but he ‘knew deep down’ that he was ‘a good person;’
(b)He took full responsibility for his offending and while he had not previously thought about the consequences, he did now. He said he was ‘eager to leave that behind’ and change his life for the better;
(c)Detention was affecting him ‘really badly’ and had a ‘massive influence’ on his attitude in the future. During this component of his evidence, Mr Martin made serious allegations relating to his detention, stating he and his lawyer had formally complained about these matters. I explained to Mr Martin that the Tribunal did not have a general jurisdiction like the courts, and the Tribunal’s jurisdiction in this matter was limited to considering the refusal of his Bridging Visa;
(d)He ‘never knew’ that he required a visa and as far as he was concerned, he was an Australian;
(e)He is confident that he can remain in the community without offending, ‘as long as [he] sticks to [his] goals;’ and
(f)He eventually wants to help children in his situation by becoming a youth worker.
Evidence of Mr Neil Martin
Mr Neil Martin’s affidavit dated 11 December 2017 was accepted into evidence.[27] He was born in Canada and is a Canadian citizen. He and his Australian-born wife Ms Tracey Martin had two children in Canada (the Applicant and an older brother). Ms Martin and their two sons relocated to Australia in late 2014. After obtaining the required visa, Mr Neil Martin joined his family approximately 9-10 months later. He describes a difficult family life, encompassing separation from his wife when their sons were approximately 12-13 years of age. He became estranged from the Applicant for approximately six years, but describes their relationship as ‘better’ but ‘somewhat distant’ during the last 7-9 years. He states that he discovered his son’s illicit drug use in his teenage years and had offered assistance. Mr Neil Martin submits that his current partner and her two children have a good relationship with the Applicant, and also extend him family support. He states that he now enjoys a ‘true father/son relationship’ with the Applicant and has arranged legal support for him. He considers the breakdown of his marriage and subsequent estrangement from his family as factors in his son’s criminal offending. But he submits that both of his sons ‘know right from wrong and are polite and courteous young men.’
[27] Exhibit A2.
In relation to the Applicant’s visa issues, Mr Neil Martin states that he and his former wife are at fault in this regard. He submits that the Applicant has lived in Australia since the age of two, went to school here, and has no connection with family or friends in Canada. He states that while the Applicant’s paternal grandmother resides in Canada, he has not seen her since the age of two and has no relationship with her. Mr Neil Martin holds fears for what will happen to his son if he is returned to Canada, particularly in light of his intellectual disability. He submits that his son would have no support in Canada, but that ‘with the support of his family…in Australia Colin’s prospects are entirely different and he will have a chance of becoming a useful member of the community.’ He contends that he and his current partner were fully committed to the Applicant’s wellbeing and ‘will do everything in [their] power to steer the way for him.’
Evidence of Ms Tracey Martin
Ms Tracey Martin’s affidavit dated 7 December 2017 was accepted into evidence.[28] She was born in Victoria and is an Australian citizen.[29] She submits that after relocating to Australia from Canada in 1994, she and her former husband ‘thought that the children had the right to remain here permanently and that they were citizens.’ She states that when their older son left College in 2010 at the age of 19, he tried to obtain a tax file number, at which point he was advised that he was not an Australian citizen. Ms Martin says this news came as a shock to her, but that her older son’s application for citizenship by descent was granted in November 2011. As a result of becoming aware of the citizenship status of her children, she claims to have sought assistance from the Applicant’s Disability Worker, to complete an application for citizenship by descent. The application could not be processed, however, because her son was serving a custodial sentence at the time. Ms Martin states that had she known her sons were not Australian citizens, she and her former husband would have addressed the issue much earlier.
[28] Exhibit A3.
[29] Exhibit R1, p.70.
In relation to her son’s offending, Ms Martin submits that the breakdown of her marriage affected her son greatly, as has his intellectual disability and problems at school. She states that in retrospect, the move to a community school as a means of addressing Mr Martin’s behavioural issues was:
‘…a very bad decision…which…affected his confidence…he attended school with youngsters who were more likely to be in trouble….[and]…a group of older boys, who did graffiti and were involved in other anti-social behaviour. This was the start of him getting in trouble.’[30]
[30] Ibid paragraph 11.
Ms Martin states that her son is now well aware of the serious consequences arising from his past offending. She says the family would be devastated if her son is returned to Canada where he only has ‘an elderly grandmother whom he does not have a relationship with.’ Ms Martin says Australia is the only country her son has ever known and she is concerned about the availability of support for him in Canada, including with ‘finding work and housing and accessing services.’ She fears for her son’s welfare and for herself, because: ‘…once I am old and cannot travel, and my son is not allowed to be with me in my old age.’ Ms Martin states that her son is loved and supported by his extended family group in Australia, which gives him ‘stability’ and which will support him in ‘efforts to leave his past life behind…and start anew.’
References in Support of Mr Martin
I have had regard for three references tendered into evidence in support of Mr Martin as follows:
(a)An affidavit from Jesse Williams, who went to school with, and describes herself as a close friend of, Mr Martin for over 10 years;[31]
(b)A character reference from Erin de Vries, who describes herself as a close friend of Mr Martin for over 10 years and is also a friend of Mr Martin’s mother;[32] and
(c)An affidavit from Bridie McCormack, who describes herself as a close friend of Mr Martin for about 15 years.[33]
[31] Exhibit A4.
[32] Exhibit A5.
[33] Exhibit A6.
All three references encompass knowledge of Mr Martin’s criminal offending and refer to challenges he has encountered in life, including from family breakdown. Ms Williams considers that if Mr Martin:
‘were to be equipped with the right tools and support…and be amongst his family and friends, and where he is able to access the support of social services, I believe that not only will this young man become an upstanding citizen but he will benefit the broader society as a well-functioning member of the community…it would be a massive loss to the community if Colin was to be deported and sent to a country that he wasn’t raised in and which he has no knowledge of…He would have absolutely no support if he were sent to live alone in Canada.’
Ms de Vries considers that Mr Martin’s offending results from being ‘young, impressionable and wanting to fit in.’ She attests to the close family relationships Mr Martin has, particularly with his mother, aunt and grandmother. She considers him to be ‘…a good person with a beautiful heart.’ She states the entire family would suffer if Colin is deported, but if allowed to remain in Australia, he would ‘change his attitude and lifestyle,’ becoming a ‘responsible and proud Australian Citizen.’
Ms McCormack states that she has known Mr Martin since childhood and knows he is truly sorry for the way he has previously behaved and now realises the serious consequences of that behaviour. She states that Mr Martin has helped support her through emotionally difficult times and is kind to and adores her daughter. Ms McCormack considers that the absence of Mr Martin’s father for a number of years caused him to become upset and make bad choices. She states that when he became an adult, Mr Martin ‘found it difficult to get long term work and couldn’t get any Centrelink because he was not a citizen, and this led to him getting further caught up with the wrong people.’ Ms McCormack considers that Mr Martin has been ‘led along the wrong path and was not the instigator of the criminal activity.’ She asks that Mr Martin be permitted to remain with his family and friends in Australia.
Education Reports
Reference was made during the hearing to Mr Martin’s problems during his secondary schooling. I note in this regard an application from Upwey Secondary College dated 13 July 2005, seeking additional support in order to provide Mr Martin with ‘constant supervision in both classroom and non classroom activities.’[34] The Principal notes in part that:
‘Colin is easily distracted in class and lacks the ability and or willingness to stay on task for any length of time. This results in interaction with other students which leads to both verbal and physical interference. This also causes confrontation with teachers which heightens Colin’s aggression towards both the teacher and other students. On many occasions he needs to be removed from the classroom situation to allow other students [to] learn and the teacher to teach… Colin is often involved in verbal and physical altercations in the playground. Some of these are caused by his ability and willingness to bully and harass other students.’
[34] Exhibit R1, pp.62-64.
I also note a report from Reconnecting Youth dated 24 November 2005, relating to Mr Martin’s placement there to address behavioural issues.[35] The report states that Mr Martin fitted in well on commencement of his placement, showed ‘glimpses of promise,’ and had made ‘friends through his humour and participation in break time activities.’ The author also noted:
‘…He has not learned to work within the boundaries or our discipline policy…When Colin is given a warning for inappropriate behaviour he will often aggressively argue the point and escalate the situation, resulting in a time-out…Colin has shown and verbalised the desire to do well, however his long goals seem to be lost when they conflict with his short-term goal of gaining the attention and laughter of the other students…Often when given new work, Colin’s immediate response is avoidance, however when he accepts the offered support he proves to himself he can do it and he powers on with a desire to complete the task…When he is interested in the task he is settled…In the group discussions, Colin has expressed some mature concepts and goals, however once again he lets himself down with silly and immature comments and behaviour…it is evident from all his classes and recreational time at Reconnecting Youth, that at the moment, Colin lacks the maturity and focus required to succeed at mainstream school…Colin struggles academically and…is reluctant to push himself outside of what he knows and resists being pushed. For him to improve he needs to accept the advice given to him by staff and not meet this advice with aggression and need to have the last word.’
[35] Ibid 65-66.
Expert Evidence
I have had regard for two relatively recent psychological assessments of Mr Martin:
(a)The first is a report prepared by consultant forensic psychologist Dr Karla Lopez dated 10 February 2018 at the request of Mr Martin’s then legal representative, Rothwell Lawyers.[36] Her report is based on an interview with Mr Martin at the Maribyrnong Immigration Detention Centre for approximately two hours on 1 February 2018. Dr Lopez was provided with a copy of the G-documents and the report of clinical neuropsychologist Mr Martin Jackson. Dr Lopez did not attend the hearing and was not cross-examined. No letter of instruction accompanies her report.
(b)The second is a report prepared by clinical neuropsychologist Mr Martin Jackson dated 12 December 2017,[37] requested by Mr Martin’s then legal representative.[38] Mr Jackson had a copy of the G-documents and conducted an interview with Mr Martin at the Maribyrnong Detention Centre for approximately 2.5 hours on 29 November 2017. Mr Jackson did not attend the hearing and was not cross-examined, but states in the body of his report that its purpose was to:
‘…support the referrer’s contention that Mr Martin was of sufficiently good character that he would not present a threat to the community once he was released from the Detention Centre. The Department would need to form a view that he is not a danger to the Australian Community and that he would not incite discord if permitted to remain. It was noted that the report should address his intellectual disability, as well as provide opinions to a number of additional questions.’[39]
[36] Exhibit A7.
[37] Exhibit A8.
[38] Rothwell Lawyers.
[39] Exhibit A8, page 1, paragraph 2.
I have concerns about the compliance of these instructions with the Tribunal’s guideline relating to Persons Giving Expert and Opinion Evidence - particularly the requirement that a person giving such evidence ‘has an overriding duty to provide impartial assistance to the AAT,’ and ‘is not an advocate for a party to a proceeding.’[40]
[40] Paragraph 3 at: Lopez’s Report
Dr Lopez’ report traverses Mr Martin’s family background and developmental history, education and employment history, drug and alcohol history, and psychological history. She administered a Depression, Anxiety and Stress Scale (DASS) instrument, which was suggestive of ‘moderate anxiety…with stress and depression levels within the normal range.’ Dr Lopez noted ‘Mr Martin appeared contrite and remorseful when relating his previous behaviour though he appeared to minimise it at times.’ Her report states in part:
‘…there are reports suggesting a variable level of engagement with correctional efforts including psychological intervention. Despite his reported pleasant manner, his engagement on order requirements was reportedly modest. It is noted he completed some drug and alcohol counselling but his abstinence was unable to be determined through testing due to limited compliance…He indicated that as a teenager, probation and reporting conditions did not appear to deter his behaviour as they changed little about his environment, including consequences in his home. He invariably returned to his antisocial associates and would again engage in similar behaviour. Mr Martin reported being mindful at his age that these were missed opportunities to better manage his behaviour and reports every intention of adhering to any future requirements.
In reaching her conclusions on Mr Martin’s risk of recidivism, Dr Lopez applied the Inventory of Offender Risk Needs and Strengths (IORNS), which is a 130-item, self-reported instrument. In the section of her report headed Risk of Recidivism,[41] Dr Lopez states:
[41] Ibid paragraphs 33-41.
‘In summary, Mr Martin’s results on the IORNS indicate that he exhibits some characteristics similar to those individuals who engage in criminal behaviour and/or reoffend. However, his elevated Static risk score resulted from past behaviour with his dynamic risk/need score indicating few outstanding concerns presently.
Factors thought to contribute to Mr Martin’s potential for further criminal behaviour without treatment or management are:
·Drug and alcohol issues
·Intrapersonal problems, including low self-esteem
·Interpersonal problems including negative peer influences and lack of professional supports
The factors thought to contribute to mitigating Mr Martin’s risk at this time are:
·Reported improvement in self-regulation – though it is noted that he has lacked recent opportunity to demonstrate this in the community
·Expressed willingness to undertake intervention (particularly drug-related)
·Ongoing family support
In the Summary and Clinical Opinion section of her report,[42] Dr Lopez concludes:
…There is no discernible reason why Mr Martin would be unable to distinguish right from wrong even by his own admission.
Mr Martin has long remained at risk of offending based on ongoing lack of consequential thinking, poor ability to problem solve, make decisions, plan and manage his drug use…. Mr Martin reports a long-standing belief that he suffers from anxiety but this appears well-managed in the absence of substance abuse and his diagnosis appears uncertain.
In the absence of intervention, Mr Martin’s failure to address his drug use, intrapersonal problems (self-esteem) and antisocial influences would place him at risk of further offending. However Mr Martin reports a commitment to desist through ceasing contact with former peers, addressing drug related issues through treatment and gaining stable employment. He appears to have been able to abstain from drug use and adhere to therapeutic intervention (methadone) during his period in detention. Furthermore, Mr Martin retains significant support from his family to achieve his rehabilitation goals and he will no doubt benefit from concomitant professional supports upon his return to the community. Mr Martin is fearful of a potential return to Canada indicating he would have no supports and is entirely unfamiliar with the environment.
[42] Ibid paragraphs 42-47.
Mr Jackson’s Report
Mr Jackson’s report traverses Mr Martin’s education and occupation history, past medical history, psychiatric and offending history, personal/social history, current status, and neuropsychological examination results. His report states in part:
‘Mr Martin reported a long history of substance abuse.
…He stated that he commenced smoking marijuana at about age 14 and that he smoked every day right from the start. He reported smoking approximately 3g of marijuana per day in the form of bongs and that he last smoked the night before his arrest.
He stated that he started drinking alcohol at around 14 or 15…He stated that at his heaviest, he would drink 6 to 8 bourbon mixers around four days per week. He last drank alcohol a couple of days before his arrest.
He reported that he started using pills (benzodiazepines such as Valium) around 16 or 17 years of age. He stated that…his use of them was “not full on.”
Mr Martin reported commencing the use of heroin around the age of 18 or 19…He said that even when he got to using on a daily basis, this would be “on and off”… He stated the last time he used some heroin was 1 to 2 months before he was arrested. He noted that he had been prescribed Methadone from the time he had stopped using heroin.
Mr Martin reported that he started using methamphetamine (Ice) at around 18 or 19… He stated it was only very minor use and he only last used one to two months before he was arrested.
…
In terms of drug and alcohol treatment, he stated that he had thought seriously about getting some drug treatment not long before he was arrested. He stated that his drug use was getting “really bad”…He sat down with his mate and his Mum and then went to see his GP. He said that they were in the process of organising rehabilitation for him, when he got arrested. This is the only time he has self- initiated treatment for his drug problem. He did note that he has undertaken drug and alcohol counselling at YSAS in the past, but this was Court ordered.’
Mr Jackson concludes:
‘It is clear from the current results that Mr Martin does not have an intellectual disability…
…
In terms of potential diagnoses, the sort of profile that he is demonstrating could be consistent with somebody with ADHD. I note that he does not ever report having been diagnosed with ADHD, but it could be consistent with his behaviour issues at school.
…
Given…Mr Martin’s intellectual abilities…, he clearly has the ability to determine right from wrong….
…he clearly has the ability to live independently in the community.
…
There is no evidence that Mr Martin had reformed or that there had been any improvement in his behaviour prior to his arrest earlier this year. There is a clear history of problematic behaviour going all the way back to primary school, which is reported to have included bullying, oppositional and defiant behaviour. He has also demonstrated antisocial behaviour in terms of doing graffiti.
…
I note that previous psychiatric and drug and alcohol interventions have generally been court ordered and he does admit that he has generally not initiated interventions. He states that he had finally decided to go and do something about his drug problem just prior to when he was arrested and put into custody, but it had not yet been organised.
Mr Martin states that he is now older and he can look back and see how he has mismanaged his life to date, both in terms of his behaviour in general, his offending behaviour, and his drug use. He stated that he is now at the point where he wants to move forward and change. He states that when he is released from detention, that he will go and live with his dad out in the country (Wandin), work with his dad and not hang around people who use drugs. Again, whilst this would certainly be a positive move forward, there is no indication that he has tried this in the past.
Overall, there is no evidence from his behaviour up to his arrest earlier this year that Mr Martin had reformed, and there is no evidence that there had been a marked improvement in his behaviour. His report of wanting to change, going to drug rehabilitation, move away from where he hangs out with people who use drugs, all appears to be subsequent to his current incarceration, apart from possibly going to drug rehabilitation. Therefore, whilst he is voicing that he now sees how things are a problem and he needs to change, this is only occurred since being in detention.
…Mr Martin has a long history of not taking responsibility for his offending and behaviour. This goes all the way back to school, given that the principal’s report when he was in year seven indicated that he would not take responsibility for his behaviour and would also come up with an excuse... I also found this when discussing his past offending behaviour. I note that certainly the vast majority of his offending behaviour is related to driving offences, drug offences, graffiti and breeches, although there are occasional offences like armed robbery, which resulted in him having up to two years detention in the Youth Detention Centre. When this was put to him, he denied the responsibility for this and indicated that he had been found guilty of the offences by being present at them. He indicated that it was always somebody else who was armed with a weapon.
Overall, whilst Mr Martin does admit the level of previous offending and is willing to take responsibility for minor offences, he does not take responsibility for the more major offences and this is consistent with his denial of being a bully or harassing other students at school as well.
Mr Martin has a long history of using illicit drugs, particularly marijuana, heroin, alcohol and methamphetamine right up to the time of his arrest earlier this year. Drug use started at age 14. Therefore, he has had a constant history of using illicit drugs.
Mr Martin must be considered at this point in time as having a high likelihood of reoffending. I noted that a recent Justice report that was in the supply documentation had already identified him on formal assessment as having a high risk of reoffending and using drugs. Given the constant history of offending since 2007, there is nothing in his previous behaviour to suggest a high likelihood of reducing or ceasing his offending. The only indication of the potential for a lower level of risk is his report that he now realises that he needs to change and move on with his life, but this is a verbal report and to date has not been backed up by actions.
…
As above, I am concerned that he presents with possible Cluster B personality traits. I am of the opinion that it is far more likely than it is on the basis of potential personality issues and criminogenic need that he has a risk of reoffending.
…
…Up until the point of his arrest and incarceration and into detention, there is no evidence before me that he has demonstrated any level of remorse fullness concerning his behaviour. Whilst he states that he now does realise that his behaviour has been problem problematic, it is in very general terms and is mostly about the effect potentially on him…. At no point during the assessment did he demonstrate remorse or concern about how his behaviour might have affected his family, friends, or others in the community.
..
Mr Martin stated that the main reason for his non-compliance with his reporting obligations and attendance at appointments, etc. was because he was out using drugs and was in a drug affected state and would forget….
…
I also note that Mr Martin himself can see that he had generally only attended mental health or drug rehabilitation when instructed to do so by the court or by his workers, and that he had not instigated these independently in the past. He stated that the only self-initiated attempted rehabilitation was occurring just before his arrest and current incarceration where he finally decided…That he needed help for his drug problem and was in the process of trying to organise rehabilitation, although it had not actually occurred at the time of his arrest. Again, he clearly has the cognitive ability to be involved in rehabilitation programs and changes in behaviour if he wishes to, as well as if he stays off drugs.
I also note the psychological assessment of Mr Martin undertaken in September 2011, in the context of sentencing after his conviction for armed robbery.[43] I have had regard for this report and referred to aspects of it earlier in these reasons. Key features of the report are its assessment that Mr Martin had a mild intellectual disability and his ‘high level of risk necessitates a high degree of supervision.’
[43] Exhibit R2, pp.437-445.
Other Evidence
I note the following correspondence:
(a)Letters from Victoria’s Department of Human Services dated 24 October 2014,[44] and from Victoria’s Department of Health and Community Services dated 30 July 2015[45] – both in the context of Mr Martin’s application for Australian citizenship. The author of the former notes that Mr Martin had ‘completed a number of interventions, including drug and alcohol counselling with Youth Substance Abuse Service…’ The author of the latter notes that:
[44] Exhibit R1, p.59.
[45] Ibid 57.
‘Mr Colin Martin…has been determined to have an intellectual disability as defined by the Disability Act 2006. Reports…show Mr Martin is functioning in the borderline to mild range of intellectual disability.
…
Mr Martin’s use of illicit substances and alcohol has been a long standing factor in his offending behaviour…
While Mr Martin has been assessed as having an intellectual disability, he does not identify himself as a person who has a cognitive impairment and has difficulty relating to services that are disability specific.
…Whilst his intellectual disability does not impede his day to day level of functioning, his ability to problem solve, plan, understand consequences and make decisions in more complex life matters is more limited.
…
Mr Martin has demonstrated he has difficulty attending regular Corrections appointments, community work as per his CCO…’
(b)A letter dated 18 August 2015 from Victoria’s Department of Justice and Regulation, again in the context of Mr Martin’s application for Australian citizenship.[46] The author notes at that time Mr Martin was subject to a CCO for a range of offences, which he had only partially-complied with. His general risk of recidivism was assessed as ‘High.’ The author notes that:
‘File information indicates that Mr Martin has had some difficulty complying with the Community Correction Order, accruing 23 unacceptable absences from the conditions of the order to date and participating in a compliance meeting on 22/05/2015 and a Senior Officer Caution on 19/08/2015.
Whilst being on the order, Mr Martin has completed 8:35 of the 70 community work hours required of the Fine Default Order and 8:35 of the 100 community work hours required of the Community Correction Order. This is considered to be unsatisfactory at this time…
To his credit, Mr Martin has completed an episode of drug and alcohol counselling with…Monashlink, he reports ongoing cannabis use however, as he has failed to attend for testing, this is not been substantiated. In addition to this, Mr Martin has refused to attend mental health assessment and treatment through Yarra Valley Psychology and has not attended psychiatric or psychological appointments made as he “feels it is no help and he would not take the medication.” Despite this, Mr Martin has attended two appointments with Dr Chowdary (Psychiatrist) on 10/03/2015 and 30/06/2015 however, has yet to implement the recommendations. Mr Martin has expressed his intention to seek a second opinion.
[46] Ibid 67-68.
LEGISLATIVE FRAMEWORK
The jurisdiction of the Tribunal to review the decision made by the Minister’s delegate is provided for at section 500(1)(b) of the Act.
Section 501(1) of the Act is one of a number of discrete powers conferred under section 501. It provides for refusal to grant a visa, if the applicant does not satisfy the Minister, or their delegate, that they pass the character test.
The character test is defined at sections 501(6) - 501(11) of the Act and refers to a range of character matters that the Minister or their delegate may have regard to in deciding whether to refuse or cancel a visa (or revoke a mandatory cancellation of a visa). Mr Martin’s Bridging Visa application has been refused on the basis of section 501(6)(a), which states that a person does not pass the character test if ‘the person has a substantial criminal record (as defined by subsection (7)).’ Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record, including if ‘the person has been sentenced to a term of imprisonment of 12 months or more; or….’ Section 501(12) defines ‘imprisonment’ to include any form of punitive detention in a facility or institution.
If I find that Mr Martin fails the character test, I must then determine whether the discretion under section 501(1) of the Act to refuse his visa should be exercised.[47] Guidance in exercising the discretion is found in Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (the Direction).
[47] The Federal Court has reinforced the importance of adhering to the two-step process mandated by section 501 of the Act. See for example: Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67 at 69 (Edmonds J); Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113 at 119 (Nicholas J, Moore and Rares JJ agreeing); Aksu v Minister for Immigration and Multicultural Affairs (2001) 65 ALD 667 at 674 (Dowsett J), quoted with approval in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 at 523 (Kiefel and Bennett JJ).
DIRECTION No. 65
The Minister is empowered by section 499 of the Act to issue the Direction. Section 499(2A) mandates that a body having functions or powers under the Act, such as the Tribunal, must comply with the Direction (Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, per Katz J). Paragraph 6.1 of the Direction sets out the following objectives:
6.1 Objectives
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2) Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
…
(4) The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
By way of general guidance, paragraph 6.2 of the Direction provides:
6.2 General Guidance
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. 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.
(2) ….
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501…
The principles referred to under General Guidance are reproduced below and constitute a framework within which decision-makers must apply the considerations in Parts A, B, or C of the Direction:
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.
Paragraph 7(1)(a) of the Direction states that a decision-maker ‘…must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa.’ Part B is the relevant Part of the Direction for Mr Martin’s application, as it contains the considerations relevant to the refusal of a visa application. Paragraph 8(1) of the Direction explains that the considerations in Part A and Part C for existing visa holders and in Part B for visa applicants are different:
Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
If it is determined that Mr Martin does not pass the character test, the three primary considerations in paragraph 11(1) of the Direction must be applied to the specific circumstances of his case:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 12(1) of the Direction requires that the other considerations which are to be taken into account in deciding whether to refuse a visa, include but are not limited to:
(a)International non-refoulement obligations;
(b)Impact on family members;
(c)Impact on victims;
(d)Impact on Australian business interests.
Paragraph 8(3) of the Direction states that ‘Both primary and other considerations may weigh in favour of, or against, refusal…of a visa.’ Paragraph 8(4) states that ‘Primary considerations should generally be given greater weight than the other considerations.’ Paragraph 8(5) states that ‘One or more primary considerations may outweigh other primary considerations.’ As held in Schuster-McFadyen v Minister for Immigration and Citizenship,[48] however, the Tribunal can give equal or greater weight to any consideration.
ISSUES
The issues to be resolved in this case are:
(a)whether Mr Martin passes the character test at section 501(6) of the Act; and
(b)if not, whether the discretion in section 501(1) of the Act to refuse to grant him a Bridging Visa should be exercised, after applying the considerations at Part B of the Direction to the specific circumstances of his case.
DOES MR MARTIN PASS THE CHARACTER TEST?
As the County Court of Victoria has sentenced Mr Martin to a term of 2 years imprisonment in a Youth Justice Centre[49] after convicting him of Armed Robbery, he has a substantial criminal record by virtue of section 501(7)(c) of the Act. I am therefore satisfied that he does not pass the character test. Having made that finding, I must make a supervening determination on whether or not to exercise the discretion granted under section 501(1) of the Act to refuse to grant his Bridging Visa.
PRIMARY CONSIDERATIONS
[49] Imprisonment in a Youth Justice Centre satisfies the definition of imprisonment in a facility or institution, as provided for at section 501(12) of the Act.
Protection of the Australian community from criminal or other serious conduct
Paragraph 11.1 of the Direction states:
(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. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. 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 11.1.1 sets out factors to be considered in determining the nature and seriousness of a non-citizen’s offending or other serious conduct to date. In considering Mr Martin’s conduct, the following extracts from paragraph 1.11.1 are relevant:
a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously.
b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled)…are serious;
c) …;
d) The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered serious;
e) The sentence imposed by the courts for a crime or crimes;
f) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
g) The cumulative effect of repeated offending;
h) ...
The nature and seriousness of the conduct
Mr Martin’s offending reflects an increasing seriousness over time:
(a)He was found guilty of his first offences of causing property damage in early 2007 at the age of 15, for which a 6 month probation period was imposed. This probation order was subsequently breached later that year after he committed additional property offences, resulting in a further 12 month probation period. A conviction was not recorded for either period. Within a year of the second probation order he re-offended and was found guilty of additional offences for property damage, as well as being found in possession of cannabis, attempted theft, knowingly dealing/concealing the proceeds of crime, and theft of a motor vehicle. The Children’s Court again dealt with these offences in August 2008 without conviction, imposing a 12-month Youth Supervision Order;
(b)By March 2009, Mr Martin had been convicted of three charges of unlawful assault, theft of a motor vehicle and other dishonesty-related offences, aggravated burglary, reckless conduct endangering serious injury, further criminal damage, and traffic-related offences. He was sentenced to a nine-month period of detention in a Youth Justice Centre;
(c)On 4 June 2010, Mr Martin was found guilty of theft of a motor vehicle, reckless conduct endangering serious injury, and unlicensed driving. The Children’s Court again elected not to record a conviction, releasing Mr Martin on a Good Behaviour Bond. On 28 February 2011 he was convicted by the Ringwood Magistrates’ Court of theft of a motor vehicle, attempting to commit an indictable offence, burglary, go equipped to steal/cheat, traffick prescribed drugs, take/send anything into a prison, theft and other dishonesty-related offences, drive in a dangerous manner, drunk in a public place, three charges of unlicensed driving, and failure to answer bail. He was sentenced to a further nine months detention in a Youth Training Centre.
(d)On 4 November 2011 Mr Martin was convicted of his most serious offence, Armed Robbery, resulting in a sentence of two years detention in a Youth Justice Centre. I note from the sentencing remarks that two of the victims during that robbery were aged 17. On 7 November 2011 he was convicted of a further eight charges of criminal damage, and was ordered to be detained in a Youth Justice Centre for three months, which was part concurrent upon all other directions for detention being served.
(e)Between 18 August 2014 and 10 August 2015, Mr Martin was convicted of numerous property, driving, and dishonesty offences. The courts dealt with these offences by imposing Community Corrections Orders (CCO), ordering him to perform unpaid community work, and to pay compensation.
Notwithstanding Mr Martin’s contention that he is not a violent person, his criminal record encompasses a number of convictions for violent offences such as armed robbery and unlawful assault. I have taken into account that his offending commenced when he was legally considered a minor under Australian law, and note the initial discretion exercised by the Children’s Court in 2007-08 not to record convictions. Periods of probation and a Youth Supervision Order were instead imposed. However Mr Martin’s offending continued after he reached the age of majority for the purposes of Australian criminal law. His extensive criminal history spans more than eight years and reflects a concerning trend of increasing seriousness. For example, he was convicted of three counts of theft of a motor vehicle between 2009 and 2011. Criminal damage, graffiti and destruction of property feature regularly amongst his convictions, as do drug, driving-related, reckless conduct, and dishonesty offences. The repetitive nature of his criminal conduct has resulted in the courts resorting to increasingly severe corrective penalties, encompassing good behaviour bonds, fines and compensation, licence cancellations, unpaid community work, supervision orders, CCOs, and since March 2009, periods of imprisonment up to two years. I note that imprisonment is the last resort in the sentencing hierarchy. Mr Martin’s compliance with the court’s corrective penalties has been limited and he has repeatedly breached court orders as evidenced by his breaches of separate probation and supervision orders in 2007, 2008 and 2009.
Mr Martin has been an unlawful non-citizen for the vast majority of his stay in Australia. His mother submits that she became aware her two sons were Canadian citizens in 2010, when Mr Martin’s older brother applied for a tax file number. Although his older brother was granted citizenship by descent on 4 November 2011,[50] Mr Martin’s citizenship application could not be processed as he was serving a sentence of imprisonment at that time. After Mr Martin made further citizenship enquiries and invalid applications between approximately 2012 and 2015, he was granted A Bridging Visa in 2015 to regulate his unlawful immigration status. The history of Mr Martin’s interactions with the Department since approximately 2011-2012, conflicts with his oral evidence that:
‘I honestly didn’t know I had to get a visa – as far as I’m concerned I’m an Australian.’
[50] Exhibit A3, paragraph 6.
It was put to Mr Martin that awareness of his unlawful status and the requirement to address it should have become apparent at least after contact with the Department in 2015 and the granting of a month-long Bridging Visa to regulate his status. Mr Martin’s responses did not satisfy me that he was unaware of his immigration status or the need to hold a visa to lawfully remain in Australia.
The evidence before me supports a finding that Mr Martin has persistently disregarded Australia’s laws and his lengthy offending history since 2007 is objectively serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 11.1.2 of the Direction states in part:
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should 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. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.
(2)In addition, decision-makers should have regard to the principle that 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..
(3)In considering the risk 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 reoffending; and
ii. evidence of any 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); and
iii. the duration of the intended stay in Australia.
(4)Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short stay visa.
Should Mr Martin engage in similar criminal conduct in the future, the nature of the harm arising to members of the Australian community is potentially very serious. I acknowledge that less serious harm may arise from offences like damage to property, licence and registration offences, theft of motor vehicles and burglary. That said, these offences impose considerable costs on organisations and institutions like councils, insurance companies, police and the courts. I note in this regard a Monash University study has estimated the cost of crimes against property in Victoria alone to be approximately $4.6 billion per year.[51]
[51] Smyth R., (2011) Cost of Crime in Victoria, Department of Economics, Monash University, Table 1,
More serious harm like death or serious injury potentially results from a repeat of Mr Martin’s violent crimes, or his negligent/reckless driving, or trafficking of prescribed drugs. The evidence shows that Mr Martin has been found guilty of such crimes in the past, most notably three counts of Unlawful Assault and Aggravated Burglary in 2009, Armed Robbery and Traffick Prescribed Drugs in 2011, and Carrying a Dangerous Article in a Public Place in 2014.
On the evidence before me, I accept that a long-standing factor in Mr Martin’s prolonged criminal conduct is alcohol and substance abuse. That said, during the approximately three-and-a-half year period prior to January 2017, during which Mr Martin insisted he was totally abstinent from drugs and only drank socially, the evidence shows he continued to re-offend. When asked why this was the case, Mr Martin said he was ‘not sure’ and again related his offending to being ‘an immature person back then,’ who is ‘not the person [he is] now.’ Mr Martin contends that a recent psychological assessment had concluded his ‘mind had matured now.’
The risk of Mr Martin engaging in similar criminal or other serious conduct is at least in part linked to an assessment of whether he might again abuse illicit substances or alcohol. Consistent with paragraph 11.1.2(3)(b)(ii) of the Direction, that requires consideration of any evidence of rehabilitation. I note a letter from Victoria’s Department of Justice and Regulation to the Department dated 18 August 2015, in which the author notes Mr Martin was at that time subject to a CCO for a range of offences, which he had only partially-complied with. His general risk of recidivism was assessed as ‘High.’
Dr Lopez considers Mr Martin is at risk of further offending in the absence of extensive and continuing supports. I note, however, that many of the protective factors Mr Martin now relies upon, such as safe and stable housing, supportive family and friends, the prospect of future work, and an intention to meaningfully engage in counselling and rehabilitation, have long been present in his life. These supports, however, have not been sufficient to mitigate his criminal conduct over many years. Mr Martin’s renewed commitment to rehabilitation, at best, remains an unfulfilled aspiration. I acknowledge the reference in a letter dated 24 October 2014, from Victoria’s Department of Human Services, where the author notes Mr Martin had ‘completed a number of interventions, including drug and alcohol counselling with Youth Substance Abuse Service…;’[52] But the evidence shows that Mr Martin’s engagement and compliance with the rehabilitative opportunities available to him has been limited in the past. I note, for example, that he continued to use cannabis while subject to a court order and failed to attend for testing. As noted in Judge Wischusen’s sentencing remarks, Mr Martin’s behaviour in the Youth Justice System was considered ‘recalcitrant.’ I also note Mr Martin has refused to attend mental health assessments, has ‘not engaged usefully with Disability Client Services,’[53] and cavils in relation to treatment, believing this would be of ‘no help.’ At the hearing he questioned the accuracy of aspects of his offending, including facts previously accepted through his counsel prior to being sentenced for armed robbery in 2011.[54] At times he also sought to minimize his involvement in criminal conduct, which has previously been noted, including by Dr Lopez in her report.[55] Mr Jackson similarly notes that Martin has ‘generally not accepted responsibility for his actions and has always come up with an excuse.’ These observations elevate concerns about the extent to which Mr Martin has genuinely come to terms with the consequences of his previous conduct and how meaningful his aspirations for change really are.
[52] Exhibit R1, p.59.
[53] Exhibit R2, p.427, paragraph 19.
[54] Exhibit R2, p.424, paragraph 2.
[55] Exhibit A7, paragraph 27.
It is of concern that despite considerable resources being allocated over the years to assist Mr Martin, including supervision, treatment, rehabilitation, and the support of his parents and friends, these supports have not deterred him from committing further serious offences. A risk assessment by Victoria’s Department of Justice and Regulation, regarded Mr Martin’s risk of general recidivism at that time as ‘High.’[56] More recently Mr Jackson also regards his risk of re-offending as ‘high.’ Dr Lopez refers to Mr Martin’s risk of re-offending as being lowered if he remains abstinent from drugs, maintains the support of family and friends, and receives further intervention to address his self-esteem and longstanding interaction with anti-social influences. In light of the specific circumstances of this case, these are big ‘ifs.’ Moreover, Mr Martin’s oral evidence is that despite abstaining from drugs for a period of approximately three-and-a-half years until January 2017 – a period during which he continued to enjoy the strong support of family, friends and access to support services - his offending nevertheless continued.
[56] Exhibit R1, pp.67-68.
Mr Martin expresses an intention to abstain from drugs, build on the gains he claims to have made while on the methadone program, engage meaningfully with counselling and rehabilitation, and live a law-abiding life in the future. These are admirable intentions. But his criminal record, particularly multiple crimes relating to dishonesty, does not inspire confidence. The evidence shows he has been given many chances in the past to change his ways but has been unable to do so. That record limits the weight that can be placed on his current aspirations alone, which have very little force - particularly given they coincide with yet another period of detention and are yet to be tested in the community. Mr Martin may genuinely feel remorseful and ready to change his ways in the context of his present circumstances, but the evidence suggests that his risk of continuing to engage in substance abuse and committing further criminal offences remains very real.
The Tribunal must, under paragraph 11.1.2(3)(b)(iii) consider the duration of Mr Martin’s intended stay in Australia. Although the matter before me relates to a Bridging Visa application, Mr Martin’s intentions in the long term are to remain permanently in Australia as an Australian citizen.
I accept that Mr Martin suffered emotionally from the breakdown of his parent’s marriage, which occurred in the latter stages of his primary school education. But the breakdown in a parental relationship in no way excuses such extensive offending since 2007. I also accept that at the time of being convicted of his most serious offence (armed robbery), Mr Martin was assessed as having a mild intellectual disability. That assessment was disputed by Mr Martin at the time. Dr Lopez’ February 2018 report shows that he continues to dispute it now,[57] with Mr Martin contending that ‘recent testing has negated that label.’[58] Mr Jackson opines that Mr Martin does not have an intellectual disability at all and his current general intellectual abilities are of Borderline to Low Average premorbid abilities, with mostly intact cognitive functions. Dr Lopez considers that Mr Martin’s test results nevertheless suggest he struggles with complexity in his daily life. She considers that his addiction to cannabis and heroin, with some ice and alcohol use, during a time of significant physical and neurocognitive development, may have been issues that were not fully acknowledged or addressed in the past. But notwithstanding competing opinions about any intellectual deficit or psychological disorder Mr Martin may have suffered or be currently suffering from, there is no question that he understands right from wrong. I make that finding based on the assessments of Dr Lopez, Mr Jackson, and from the evidence of Mr Martin and his father. In any event, there is no evidence before me that indicates a correlation between any intellectual deficit or psychological condition Mr Martin may be suffering from, that impacts his culpability for the offences he has committed. Mr Martin makes no such claim, submitting that he takes full responsibility for his offending, which he knew to be wrong, and which he now expresses a determination never to repeat.
[57] Exhibit A7, paragraph 18.
[58] Ibid.
Overall the evidence reflects increasingly serious convictions, repeat offences, non-compliance with the court’s corrective penalties, and limited engagement in counselling and rehabilitation, despite considerable supports – indeed the same or similar supports that Mr Martin says will support his aspirations for enduring change. The evidence also reflects the cumulative effect of his protracted offending and longstanding inability to control his substance abuse, negative associations, or the anti-social conduct arising from it - again despite significant family and other supports. I take no pleasure in observing that His Honour’s reference in 2011 to Mr Martin’s prospects of rehabilitation being ‘marginal,’ has, to date, been sadly proven correct. The evidence supports a finding that if allowed to remain in Australia, Mr Martin constitutes an unacceptable risk to the Australian community.
It follows that the primary consideration of protection of the Australian community from criminal or other serious conduct, weighs strongly in favour of refusing to grant Mr Martin a Bridging Visa.
Best interests of minor children in Australia
On the evidence, there are no minor children in Australia whose interests are relevant to Mr Martin’s case. I therefore find that this primary consideration does not weigh in favour of or against the refusal of his visa application.
Expectations of the Australian community
Paragraph 11.3 of the Direction states:
(2) 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 refuse the visa application of such a person. Visa refusal 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 be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.
It is clear that Mr Martin has repeatedly failed to meet the reasonable expectation of the Australian community that non-citizens must obey Australia’s laws. This is evidenced by the sustained and serious nature of his offending. The community would be particularly concerned about the violent nature of some offences, the considerable cost to the community in managing the consequences of his conduct, his unwillingness to fully comply with corrective penalties imposed by the courts, or to fully engage with the rehabilitative opportunities made available to him. I note that in sentencing Mr Martin almost seven years ago for the offence of armed robbery, His Honour stated:
‘Mr Martin, you are hanging by a thread in the Youth Justice System. You know what is required of you, you have been given plenty of chances. If you do not take them, you will end up in an adult prison fairly soon…’
Some seven years later Mr Martin is seeking an additional opportunity, again promising to become law-abiding. He states in his application to the Tribunal that the decision to refuse his Bridging Visa means he ‘cannot continue on with [his] life as [he has] lived it for the past 22 years.’ But the Australian community would frankly not want Mr Martin to continue to live his life amongst them as he has to date. On any reading of his criminal record, his conduct reflects a repeated and wilful disregard of Australian law and judicial orders that is entirely inconsistent with reasonable community expectations of a visa applicant – even an applicant who has lived in Australia since the age of two. Consequently, Australians would not be sympathetic to the granting of his application for a Bridging Visa. The Australian community would likely be sympathetic to Mr Martin’s parents, however, who have done their best to support him, and continue to support him, albeit with little success.
I acknowledge paragraph 6.3(5) of the Direction that ‘Australians 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.’ However, given the sustained and serious nature of Mr Martin’s offending, which commenced in his early teenage years and has continued for approximately eight years to date, the Australian community would expect the Minister to refuse to grant him a Bridging Visa. The evidence supports a finding that the primary consideration of expectations of the Australian community weighs strongly in favour of refusing Mr Martin’s visa application.
OTHER CONSIDERATIONS
International non-refoulement obligations
The Direction refers to a non-refoulement obligation as an obligation not to forcibly return, deport or expel a person to a place where they are at a risk of a specific type of harm.[59]
[59] Direction, para 12.1(1).
Mr Martin’s principal concerns about a return to Canada are expressed as:
‘…I have lived in Australia since the age of 2. I have not returned to Canada nor do I have any ties there…I am scared to go back to Canada as I have no family there, friends or networks. I will have no financial support in Canada…’
I note that Canada is a developed state with health and support services comparable to those of Australia. There is nothing in the evidence to suggest that as a Canadian citizen, Mr Martin could not rely on the support available to any other Canadian citizen.
I find that the concerns expressed by Mr Martin do not constitute a risk of significant harm that would give rise to non-refoulement obligations. It follows that this consideration does not weigh in favour for or against the refusal of his visa application.
Impact on family members
Paragraph 12.2(1) of the Direction requires consideration of the:
(3) Impact of visa refusal on 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.
The compassionate grounds informing my consideration of Mr Martin’s case centre on his parents. I accept their evidence that they may have initially misapprehended Mr Martin’s status as an Australian citizen, but Ms Tracey Martin’s evidence is that she became aware of the Canadian citizenship of her sons in 2010. Her affidavit and that of her former husband understandably express a desire for their son to remain with them in Australia. They express concerns about his ability to cope without family support if returned to Canada, particularly given that Mr Martin’s only relative in Canada is a paternal grandmother with whom he has had no contact. I accept their evidence about Canadian relatives, notwithstanding Mr Martin’s contention during the hearing that he has no family or extended family in Canada at all. The heart-felt evidence of Mr Martin’s parents is of two people who love their son and want to continue supporting him in Australia, in the hope that he will make the changes necessary to enjoy a brighter and law-abiding future.
I acknowledge that if Mr Martin is removed to Canada, it would make it more difficult for him to remain connected with his family. But there is no evidence before me to suggest that his parents could not visit or otherwise continue to support him from Australia should they wish. Nevertheless, I find that the consideration impact on family members weighs in favour of revoking the decision to refuse Mr Martin’s visa.
Impact on victims
No victim statements were tendered at the hearing and no victims gave oral evidence. In the absence of such evidence, I find that this consideration does not weigh in favour of or against the refusal of Mr Martin’s visa application.
Impact on Australian business interests
Paragraph 12.4 of the Direction requires consideration of the:
(4) Impact on Australian business interests if the non-citizen’s visa application is refused, noting that an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a major project or delivery of an important service in Australia.
There is no evidence before me that Australian business interests will be affected by my decision in this matter. I therefore find that this consideration does not weigh in favour of or against the refusal of Mr Martin’s visa.
Other considerations – ties to Australia
The Direction does not limit the number of other considerations that can be taken into account. Given the specific circumstances of this case, I consider that the strength of Mr Martin’s ties to Australia are deserving of consideration in weighing the discretion granted under section 501(1) of the Act.
Mr Martin has substantial ties to Australia, arriving here as an infant and attending school here. I place less weight on this consideration, however, because his offending commenced when he was approximately 15 years of age and has continued during the intervening period.
I note that paragraph 6.3(7) of the Direction refers to ‘The length of time a non-citizen has been making a positive contribution to the Australian community’ as a principle to be taken into account when applying relevant considerations. There is a dearth of evidence regarding meaningful community involvement or contribution by Mr Martin, whose employment history can best be described as sparse.
On balance, however, in light of the fact that he has lived in Australia since the age of two and the majority of his family reside here, I accept that Mr Martin’s ties to Australia weigh in favour of revoking the decision to refuse his visa.
CONCLUSION
Mr Martin’s parents and other family members clearly love and support him. It is also to his credit that the three affidavits and references submitted in support of his application identify praiseworthy aspects of his character. But the primary considerations of ‘Protection of the Australian community from criminal or other serious conduct’ and ‘Expectations of the Australian community’ weigh strongly in favour of refusing Mr Martin’s visa application. This follows from the serious and repetitive nature of his offences over an approximately eight year period, the harm and cumulative effect arising from that offending, his failure to fully comply with the corrective penalties imposed by courts, or learn from the many chances he has been given, and the likelihood of his re-offending posing an unacceptable risk to the Australian community.
After weighing up all of the evidence and the applicable law, I find that Mr Martin does not pass the character test. After considering the discretion granted under section 501(1) of the Act, and applying the considerations in Part B of the Direction to the specific circumstances of his case, I conclude that the two primary considerations relevant in this matter, which weigh against the granting of the Bridging Visa, outweigh any other considerations which are in favour of it being granted.
DECISION
It follows that I affirm the decision made on 16 February 2018 to refuse to grant Mr Martin a Bridging E (Class WE) Visa under section 501(1) of the Act.
I certify that the preceding 95 (ninety-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC
.......[sgd].................................................................
Associate
Dated: 15 May 2018
Date of hearing: 8 May 2018 Applicant: In person Advocate for the Respondent: Ms Eleanor Cannon Solicitors for the Respondent: Clayton Utz
- AGLC
- Martin and Minister for Immigration and Border Protection (Migration) [2018] AATA 1289
- Case
- [2018] AATA 1289
- Decision Date
CaseChat Overview and Summary
The Tribunal was required to consider whether Mr. Martin satisfied the character test, specifically whether he had a substantial criminal record as defined by section 501(7)(c) of the *Migration Act*, and if he did not pass the character test, whether to exercise the discretion under section 501(1) to grant the visa. In exercising this discretion, the Tribunal was directed to consider the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia, and any other relevant matters.
The Tribunal found that Mr. Martin possessed a substantial criminal record due to his conviction for armed robbery, which resulted in a sentence of two years imprisonment in a Youth Justice Centre. Consequently, he did not pass the character test. In considering the exercise of discretion, the Tribunal noted the seriousness and increasing frequency of Mr. Martin's offending, which began at age 15 with property damage and escalated to include unlawful assault, aggravated burglary, and armed robbery. While acknowledging Mr. Martin's submissions regarding his remorse, immaturity at the time of offences, and desire for rehabilitation, the Tribunal concluded that the primary considerations of protecting the Australian community and the nature of his criminal history outweighed any factors in favour of granting the visa.
Accordingly, the Tribunal affirmed the decision of 16 February 2018 to refuse to grant Mr. Martin a Bridging E (Class WE) Visa.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
As the County Court of Victoria has sentenced Mr Martin to a term of 2 years imprisonment in a Youth Justice Centre[49] after convicting him of Armed Robbery, he has a substantial criminal record by virtue of section 501(7)(c) of the Act. I am therefore satisfied that he does not pass the character test. Having made that finding, I must make a supervening determination on whether or not to exercise the discretion granted under section 501(1) of the Act to refuse to grant his Bridging Visa. PRIMARY CONSIDERATIONS[49] Imprisonment in a Youth Justice Centre satisfies the definition of imprisonment in a facility or institution, as provided for at section 501(12) of the Act. Protection of the Australian community from criminal or other serious conduct Paragraph 11.1 of the Direction states: (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. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:a) The nature and seriousness of the non-citizen’s conduct to date; andb) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. Paragraph 11.1.1 sets out factors to be considered in determining the nature and seriousness of a non-citizen’s offending or other serious conduct to date. In considering Mr Martin’s conduct, the following extracts from paragraph 1.11.1 are relevant:a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously.b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled)…are serious; c) …;d) The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered serious;e) The sentence imposed by the courts for a crime or crimes;f) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;g) The cumulative effect of repeated offending;h) ...The nature and seriousness of the conduct Mr Martin’s offending reflects an increasing seriousness over time: (a)He was found guilty of his first offences of causing property damage in early 2007 at the age of 15, for which a 6 month probation period was imposed. This probation order was subsequently breached later that year after he committed additional property offences, resulting in a further 12 month probation period. A conviction was not recorded for either period. Within a year of the second probation order he re-offended and was found guilty of additional offences for property damage, as well as being found in possession of cannabis, attempted theft, knowingly dealing/concealing the proceeds of crime, and theft of a motor vehicle. The Children’s Court again dealt with these offences in August 2008 without conviction, imposing a 12-month Youth Supervision Order;(b)By March 2009, Mr Martin had been convicted of three charges of unlawful assault, theft of a motor vehicle and other dishonesty-related offences, aggravated burglary, reckless conduct endangering serious injury, further criminal damage, and traffic-related offences. He was sentenced to a nine-month period of detention in a Youth Justice Centre; (c)On 4 June 2010, Mr Martin was found guilty of theft of a motor vehicle, reckless conduct endangering serious injury, and unlicensed driving. The Children’s Court again elected not to record a conviction, releasing Mr Martin on a Good Behaviour Bond. On 28 February 2011 he was convicted by the Ringwood Magistrates’ Court of theft of a motor vehicle, attempting to commit an indictable offence, burglary, go equipped to steal/cheat, traffick prescribed drugs, take/send anything into a prison, theft and other dishonesty-related offences, drive in a dangerous manner, drunk in a public place, three charges of unlicensed driving, and failure to answer bail. He was sentenced to a further nine months detention in a Youth Training Centre. (d)On 4 November 2011 Mr Martin was convicted of his most serious offence, Armed Robbery, resulting in a sentence of two years detention in a Youth Justice Centre. I note from the sentencing remarks that two of the victims during that robbery were aged 17. On 7 November 2011 he was convicted of a further eight charges of criminal damage, and was ordered to be detained in a Youth Justice Centre for three months, which was part concurrent upon all other directions for detention being served. (e)Between 18 August 2014 and 10 August 2015, Mr Martin was convicted of numerous property, driving, and dishonesty offences. The courts dealt with these offences by imposing Community Corrections Orders (CCO), ordering him to perform unpaid community work, and to pay compensation.