McGrath and Minister for Home Affairs (Migration)

[2018] AATA 2305

McGrath and Minister for Home Affairs (Migration) [2018] AATA 2305 (2 July 2018)

Division:GENERAL DIVISION

File Number(s):      2018/2243

Re:Benjamin McGrath

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Deputy President Dr P McDermott RFD

Date:2 July 2018

Date of written reasons:        20 July 2018

Place:Brisbane

The decision under review is affirmed.

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Deputy President Dr P McDermott RFD

CATCHWORDS

MIGRATION – visa cancellation under section 501(2) – applicant sentenced to multiple terms of imprisonment for a period of 12 months or more – applicant does not pass the character test – the protection of the Australian community is relevant – the expectations of the Australian community are not met – the best interests of minor children is relevant – other considerations are relevant – visa should be cancelled – decision under review affirmed

LEGISLATION

Migration Act 1958

SECONDARY MATERIALS

Direction no 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

20 July 2018

INTRODUCTION

1. This application by Mr Benjamin McGrath, the applicant, is to review a decision of the respondent that was made on 1 February 2018. The delegate made a decision to cancel the applicant's Class BF Transitional (Permanent) visa under section 501(2) of the Migration Act 1958 (“the Act”). 

   BACKGROUND

2. The applicant is a citizen of the United Kingdom. He first arrived in Australia in 1981 with his family when he was only 10 months old.[1]

   [1] Exhibit A, G-Documents, G2, at p. 46.

3. The applicant has a considerable criminal history, which is listed in the National Police Certificate.[2] The offences that are recorded in that National Police Certificate include offences of assault, commission of public nuisance, threatening violence, wilful damage, contravention of domestic violence order, assault occasioning bodily harm, assaults on police officers and possession of dangerous drugs.

   [2] Exhibit A, G-Documents, G2, at pp. 30-34.

   JURISDICTION

4. The Tribunal has jurisdiction to review the decision of the delegate of the respondent pursuant to s 500(1)(b) of the Act.

   CHARACTER TEST

5. Section 501(6)(a) of the Act provides that a person does not pass the character test if he or she has a substantial criminal record. Section 501(7)(c) of the Act provides that a person has a substantial criminal record if he or she has been sentenced to a term of imprisonment for a period of 12 months or more. There are a number of occasions where the applicant has been sentenced to a term of imprisonment of 12 months or more. They occurred on 12 January 2007, when the Brisbane District Court sentenced the applicant to a term of imprisonment for two years; on 11 September 2014 when he was sentenced to a term of imprisonment for 12 months at the Gladstone Magistrates Court; and on 28 July 2017 when he was sentenced to a term of imprisonment of 14 months by the Gladstone Magistrates Court.[3] I accordingly find that the applicant does not pass the character test as he has a substantial criminal record within the meaning of section 501(7)(c) of the Act.

   [3] Exhibit A, G-Documents, G2, at pp. 30-32.

   EXERCISE OF DISCRETION

6. Having found that the applicant does not pass the character test in section 501 of the Act, I now have to decide whether the Tribunal should exercise the discretion under

   
   

   section 501(2) of the Act to cancel the applicant's visa.

7. The ministerial discretion is exercised pursuant to section 499 of the Act which empowers the respondent to give written directions about the performance of functions or the exercise of powers under the Act. The effect of that section, section 499, is that the Tribunal is required to comply with Direction no. 65. This Direction applies to visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.[4] Direction no. 65 commenced operation on 22 December 2014 and it remains in force.

   [4] Exhibit A, G-Documents, G3, at pp. 98-130.

8. It is important to have regard to the preamble in Direction no. 65. Direction no. 65 identifies the considerations relevant to visa applicants in determining whether to exercise the discretion to cancel a non‑citizen's visa.  The preamble itself identifies seven principles which promote a final framework within which decision‑makers approach their specific task:

   (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.

9. Paragraph 8 of Direction no. 65 requires decision‑makers to take into account the primary and other considerations relevant to the individual case, the different considerations on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. 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 their visa, whereas a visa applicant should have no expectation that a visa application will be approved.  In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Both primary and other considerations may weigh in favour of, or against, refusal or cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.

10. Paragraph 9 of Direction no. 65, says that:

    (1)  In deciding whether to cancel a non-citizen’s visa, the following are primary considerations:

    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.

11. Paragraph 9.1 deals with the protection of the Australian community. 

    (1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

    (2)Decision-makers should also give consideration to:

    a)    The nature and seriousness of the non-citizen's conduct to date; and

    b)    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. 

12. In looking at the nature and seriousness of the non‑citizen's criminal offending or other conduct to date, paragraph 9.1.1 of Direction no. 65 lists some of the factors that decision‑makers must have regard to. An important factor is the principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously. What is also important is the sentence imposed by the courts for a crime, the frequency of the non-citizen's offending, whether there is any trend of increasing seriousness and the cumulative effect of repeated offending.

13. Another matter which is important here is paragraph (i), which refers to whether the non‑citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour). It is important to have regard to the fact that on two occasions the applicant received a warning and acknowledged receiving a warning. He was advised that he may be considered for the  refusal or cancellation of any visa he holds if further information of relevance comes to the attention of the department at any time in the future and “if this happens, my past conduct and previous relevant information can also be reconsidered”. One acknowledgement was signed by him on 9 December 2011.[5] Another acknowledgement was signed by him in March 2015.[6]

    [5] Exhibit A, G-Documents, G2, at p. 82.

    [6] Exhibit A, G-Documents, G2, at p. 83.

14. Having regard to the primary consideration of the protection of the Australian community, it is important to recognise the applicant’s appearance before the courts on multiple occasions and being sentenced to terms of imprisonment a number of times. The frequency of his offending is certainly a matter of concern, having regard to Direction no. 65, paragraph 9.1.1(f), which refers to the frequency of the non‑citizen's offending and whether there is a trend of increasing seriousness. The violent offences that are listed in the National Police Certificate concern grievous bodily harm, public nuisance, assault, serious assault on a police officer, assault occasioning bodily harm, wilful damage, and contravention of a domestic violence order; these are certainly matters of grave concern.

15. In a recent decision dated 28 July 2017, Magistrate Ho said that the applicant was then a 37‑year‑old man with 20 entries in his criminal history.[7] She referred to the fact that in 1988 he served 12 months' probation for wilful damage and assault occasioning bodily harm, confronting police, serious assault, and wilful damage; in 2007, he was sentenced to two years' imprisonment for grievous bodily harm; in 2010, there was an assault occasioning bodily harm; and in 2014, there was an assault occasioning bodily harm. 

    [7] Exhibit A, G-Documents, G2, at p. 63.

16. One incident that causes me concern is the incident that occurred on 3 March 2017. The Magistrate said that it concerned him approaching a neighbour with a large machete. The Minister, in his statement of facts and contentions, stated that the applicant held a machete in the street and threatened to behead someone. The applicant took issue with this statement in the respondent's facts and contentions, and I do agree with the applicant that there's no evidence that this occurred in the street. But I do have regard to what the Magistrate said, when she stated,[8] "You approached the neighbour with a large machete.  You were next door to the victim's neighbour's place. You banged the blade on the steel fence dividing the properties, and yelling to the victim that you were going to cut the victim's head off. You attempted to coax the victim into the yard to kill him. He was extremely fearful of his safety and the safety of his family, and retreated inside his residence calling 000". When giving evidence, the applicant did admit this and was honest and open in saying he attempted to coax the victim into his yard. The incident didn't occur on the street, but nevertheless threatening to cut somebody's head off is a serious matter.

    [8] Exhibit A, G-Documents, G2, at p. 65.

17. In considering the protection of the Australian community, I have got to consider, in terms of paragraph 9.1.2, the risk to the Australian community should the non‑citizen commit further offences or engage in other serious conduct. The fact that the applicant has a repeated history of violent criminal offending is in fact a matter of concern. The nature of some of the violent offences were referred to by Magistrate Hay on 11 September 2014.[9]  She outlined the history of violent offending. The first violent offence occurred in March 2001, which was an assault occasioning bodily harm, the circumstances of an affray, a serious assault and a wilful damage charge. The next matter that brought him before the courts was in the Brisbane District Court in January 2007 for grievous bodily harm, for which he received two years' imprisonment. In 2010, there was another assault occasioning bodily harm, which Magistrate Hay regarded as obviously serious in nature, given that it involved a broken nose, and $11,000 in compensation was awarded. With regard to that compensation, it would seem that that compensation has not yet been paid to the victim of the assault. 

    [9] Exhibit A, G-Documents, G2, at p. 61.

18. The applicant has been imprisoned on a number of occasions and yet still continues to reoffend. The applicant states that he does plan to get a referral to help with his substance abuse and anger management, but there is little evidence of rehabilitation to date. The mother of the applicant, who appeared at the hearing, mentioned how he hasn't been offered rehabilitation. That may in fact be correct, but on the other hand, the applicant has not, in my view, taken steps to undergo rehabilitation before now. 

19. I actually consider that there is certainly more than a moderate risk that the applicant will reoffend in the future. The recent act that occurred on 3 March 2017, where he yelled at a victim that he was going to cut the victim's head off, is certainly a serious, violent offence. The applicant took issue with the description of the item as being a large machete. He said it was a turf cutter, and that may well be the case, but still, it was certainly a dangerous instrument the applicant was wielding on that day. For someone of his age to engage in that conduct, when he has been in prison before, it seems that he certainly has more than a moderate risk of reoffending. 

20. The first primary consideration certainly weighs strongly in favour of the cancellation of the visa.

21. The second primary consideration concerns the best interests of minor children in Australia; decision‑makers must make a determination about whether cancellation is, or is not, in the best interests of the child. What I've got to consider is the nature and duration of the relationship between the child and the non-citizen; the impact of his conduct, and whether that conduct would have a negative impact on the child; the likely effect separation will have on the child; and whether there are any other persons who fulfil a parental role in relation to the child. The respondent puts forward that the applicant has limited involvement with his child, and in reliance on that, the Minister points to a decision of Magistrate Hay in the Gladstone Magistrates Court on 11 September 2014. She indicated that there was a relationship breakdown and that the applicant had not had contact with his child for some time. The applicant now states that he has more frequent contact with his child. If the applicant was to be repatriated, he won't have the 6.5 hours away from the child. He states that he does speak to the child at the moment once every three days through the phone or Skype. The applicant's ex‑wife fulfils her parental role in relation to his daughter.

22. The applicant also has a goddaughter. The applicant no longer lives with or is in a relationship with Tina. There was a contravention of a domestic violence order in January 2017. The respondent submits that primary consideration two weighs slightly in favour of the applicant's visa not being cancelled. I do not accept this submission. The second primary consideration certainly does weigh heavily in favour of the applicant's visa not being cancelled.

23. The third primary consideration is the expectations of the Australian community.  Expectations of the Australian community are referred to in paragraph 9.3 of Direction no. 65. It states that:

    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 cancel the visa held by such a person. Visa cancellation 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 continue to hold a visa. Decision-makers should have due regard to the Government’s views in this respect.

24. In making an assessment about the expectations of the Australian community, I have to make a value judgment that one of the expectations of the Australian community would lead me to cancelling the visa of the applicant; particularly having regard to the fact that on two occasions in 2011 and 2015, the applicant had been warned about the consequences of his behaviour and since then has continued to offend. The offences in 2017 were really quite serious. The signees of the petition lodged in support of the application do not appear to be aware of the full extent of the applicant’s criminal history.[10]

    [10] Exhibit H.

25. Magistrate Ho refers to the fact that there were 10 offences committed in the period between 27 January 2017 and 3 March 2017, slightly less than two months. But as submitted, it appears that he was suffering various episodes of a psychotic nature. With respect to the issue of the expectations of the Australian community, I think it is important to have regard to this kind of conduct of the applicant, particularly after those warnings were given in 2011 and 2015.

26. There was an incident on 27 January 2017 concerning actual domestic violence. In that case, there was an inter-verbal argument between him and the aggrieved people.[11]  And certainly, I accept that he was suffering a psychotic episode. He went to the hospital and was admitted under an emergency examination order (“EEO”). There was serious criminal conduct in regard to threats, including cutting a head off. He made the threat on 27 January 2017. He later made a threat to cut the neighbour's head off on 3 March 2017.  There was unlawful damage on 9 February 2017, when he smashed the window at his local Christian church. Police took it up with him, and restitution was ordered, but it was referred to the State Penalties Enforcement Registry (“SPER”).[12] The applicant has stated that he owes about $20,000 to SPER, and that money still remains outstanding.  Also, in February 2017, police attended a hospital after a break of seven days when the applicant was verbally aggressive to hospital staff and to a member of the public.

    [11] Exhibit A, G-Documents, G2, at p. 64.

    [12] Exhibit A, G-Documents, G2, at p. 65.

1. There is also public nuisance, where the applicant threatened and swore at a police officer in an aggressive manner, threatening to assault him and throwing an object in full force at the windscreen of the police officer. He punched the glass of the driver's door multiple times with force, swearing at the officer, baiting the officer, saying:[13]

   “Come out, come out, cunt. You gutless cunt, come out for a fight.”

   [13] Exhibit A, G-Documents, G2, at p. 65.

2. On 3 March 2017, he then had that further episode. Considering the expectations of the Australian community, it is important to have regard to the fact that certainly the applicant does have bipolar condition. But the report of Dr Lorna Duggan that was put before the Brisbane Magistrates' Court stated:[14]

   “[The applicant] had the capacity to understand what he was doing and the capacity to control his actions. It is also my opinion that [the applicant] had the capacity to know he ought not to do these acts at the material time. In my opinion, he was not deprived of any of the three capacities; that is, the capacity to understand what he was doing, the capacity of actions, the capacity to know he ought not to do the acts. Also, in my opinion, at the time of the alleged offences, he had smoked cannabis; I believe that he wasn't intoxicated by the substance.”

   [14] Exhibit D, Report of Dr Lorna Duggan dated 24 June 2017.

3. The fact that the applicant still continues to take drugs is a matter of grave concern, having regard to the expectation of the Australian community. The third primary consideration certainly weighs strongly in favour of cancelling the visa. 

4. There are other considerations in Direction no. 65 that have to be borne in mind. One of those directions is the strength, nature, and duration of ties to Australia. I have to have regard to how long this non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that less weight should be given where the non-citizen began offending soon after arriving in Australia, and more weight should be given to time the non-citizen has spent contributing to Australia.

5. I must consider the strength, duration, and nature of any family or social links with Australian citizens, Australian permanent residents or people who have an indefinite right to remain in Australia, including the effect of cancellation on the non-citizen's immediate family in Australia, where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely. I consider that a decision to cancel the applicant's visa would cause hardship to the applicant's immediate family, daughter, and the other children he provides for, and that is certainly a matter I have had regard to.

6. The Minister states that the applicant has had limited evidence of the applicant making positive contributions to the Australian community. The applicant certainly took issue with this. I have had regard to the employment history in the applicant's personal details form.[15] That form was completed in early 2015, and since then he has had other employment. I have had regard to this. There is a reference from a landscaping firm. It is undated, but it was filed on 5 June 2018. Mr Bennett in the letter states he has known the applicant for 10 years and over that time:[16]

   “Our company has employed him on various projects we've had (indistinct words) region. Proven himself to be one of the hardest workers we have had - and we have got about 70 employees - and also one of the most reliable.”

   [15] Exhibit A, G-Documents, G2, at p. 78.

   [16] Exhibit G, letter of support of Mr Bennett.

7. Certainly, it can be said, looking at the employment history in this reference, that the applicant has made a contribution to the community through his employment; however, the reference of Mr Bennett is incorrect in stating that he had worked with the applicant for 10 years; it looks like employment occurred from the end of 2015.

8. Impact on victims is something to look at in terms of Direction no. 65. The impact on victims is certainly something that must be considered. There has got to be an impact of the decision not to cancel a visa on members of the Australian community, including victims of the non-citizen's criminal behaviour and the family members of the victim or victims, where that information is available; and the non-citizen being considered for visa cancellation must also be afforded procedural fairness. There is not any direct evidence concerning this other consideration. It is all, of course, dependant on whether the decision to cancel is set aside. The offences committed by the applicant, and the violence exhibited, were of a kind that would concern members of that community, if they witnessed it or were involved. The public nuisance offence the applicant pleaded guilty to included extreme violence against a person in a public place, repeatedly punching her in the head. That person did not bring a complaint against him in relation to that matter, but it was regarded as a very serious public nuisance circumstance by the Magistrate. The fact that the applicant threatened to behead a number of people is also something that could be a concern to victims.

9. I have got to consider the extent of the impediments, if removed. Paragraph 10.5.1 of Direction no. 65 requires the Tribunal to consider:

   (1)The extent of any impediments that a non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

   (a)The non-citizen's age and health;

   (b)Whether there are any substantial cultural barriers;

   (c)Any social, medical, and/or economic support available to them in that country.

10. I think that the respondent is correct that cultural and language barriers would be minimal. However, the applicant would certainly lose his personal support network. I question whether the personal support network of the applicant has actually been of great assistance to him, bearing in mind the recent offences; in particular, the fact that in 2017 he committed 10 offences between the period of 27 January 2017 to 3 March 2017.  There are some relatives in the United Kingdom, although the applicant himself hasn't seen those relatives probably since he was a baby. In terms of impediments, if removed, I think that certainly the applicant would face hardship if he was removed from Australia.

11. There are some other considerations I have to have regard to that are listed in Direction no. 65. There is not any international non-refoulement obligation which appears to be relevant, and there does not seem to be any evidence concerning impact on Australian business interests if the non-citizen's visa is cancelled, bearing in mind that employment, in general, would only be given weight where visa cancellation would significantly compromise the delivery of a major project or delivery of an important service in Australia.  Certainly, the most important recent employer reference does not give evidence of that. I do not think there are any other considerations or other reasons which are relevant to deciding whether or not to cancel the applicant’s visa.

12. The fact that the applicant has been repeatedly convicted of violent offences and that there has been a risk that he will re-offend, as well as the fact that he continues to offend even after having received two warnings from the Department are matters I cannot lightly set aside. In this case, the protection of the Australian community and the expectations of the Australian community weigh very heavily in favour of cancelling the visa of the applicant. The second primary consideration, that of the best interests of minor children in Australia, certainly, in my view, weighs heavily in favour of the applicant, as does the strength, nature, and duration of ties and the impediments if removed. The weight of the first and third primary considerations strongly outweighs these other considerations.

    DECISION

13. My decision is to affirm the decision under review.

I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

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Associate

Dated: 20 July 2018

Date of  hearing:	2 July 2018
Applicant:	By video
Solicitors for the Respondent:	Clayton Utz