McGregor and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2022] AATA 5037
•6 December 2022
McGregor and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 5037 (6 December 2022)
Division:GENERAL DIVISION
File Number: 2022/7787
Re:Manahi Raymond James McGregor
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Member A Julian-Armitage
Date:6 December 2022
Date of written reasons: 28 February 2023
Place:Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made by the delegate of the Respondent dated 12 September 2022 to not revoke the cancellation of the Applicant's visa and substitutes a decision to revoke the mandatory cancellation of the Applicant's visa.
..................[SGD]..................
Member A Julian-Armitage
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – whether the Applicant passes the character test – whether there is another reason why the decision to cancel the Applicant’s visa should be revoked – consideration of Ministerial Direction No. 90 – substantial criminal record – decision under review set aside and substituted with a decision revoking the original visa cancellation.
Legislation
Administration Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
DGPZ and Minister for Immigration and Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 115
Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
Minister for Home Affairs v Buadromo (2018) FCR 320
PNLB and the Minister for Immigration and Border Protection [2018] AATA 162
Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 10
Secondary Materials
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021)
REASONS FOR DECISION
Member A Julian-Armitage
28 February 2023
INTRODUCTION AND BACKGROUND
Manahi Raymond James McGregor (“the Applicant”) is a 22-year-old citizen of New Zealand (born in 2001). He first came to Australia on 16 February 2002 and since then has arrived and departed Australia on multiple occasions until his latest arrival on 17 April 2016.[1] Since his arrival in April 2016 the Applicant has remained onshore.
[1] G documents, G2, page 72.
Offending
The Applicant’s adult criminal [2]offending spans a period of 2 years throughout his migration history in Australia. The Check Results Report (“Criminal History”) contained in the material furnished to the Tribunal details the Applicant’s adult criminal history for the period from 22/10/2019 to 17/06/2021.[3] The criminal history states that the Applicant has committed a number of offences dealt with judicially on separated sentencing occasions. This offending has had a varied ambit of sentences imposed including; community correction orders, fines, driving disqualifications and a term of imprisonment with a fixed non-parole period. The Applicant’s offending has included:[4]
[2] Applicant’s juvenile history not under consideration as per the decision in Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23
[3] G documents,G2, Attachment A: National Criminal History report (dated 20.05.2021), pages 35-41.
[4] Ibid.
·Dangerous operation of a vehicle;
·Unlawful use of a motor vehicle;
·Burglary;
·Robbery with actual violence in company ;
·Receiving tainted property;
·Possession of a knife in a public place or a school;
·Possession of dangerous drugs ;
·Breach of community service order ;
·Failure to appear in court in accordance with undertaking x 2;
·Possession of property suspected of having been used in connection with commission of a drug offence;
·Commit public nuisance;
·Common assault;
·Fraud – dishonestly make off without paying; and
·Unlawful assault occasioning bodily harm whilst in company;
·Obstructing a police officer.
On 8 June 2021, the Applicant was given notice that his Class TY Subclass 444 Special Category (Temporary) visa (‘visa’) had been mandatorily cancelled pursuant to
section 501(3A) of the Migration Act 1958 (Cth) (“the Act”).[5] The visa was mandatorily cancelled on the basis that the Applicant did not pass the character test as he had a substantial criminal record and had been sentenced to a term of imprisonment of more than twelve (12) months which he was serving on a full-time basis in a custodial institution. On 17 June 2021, the Applicant made written representations to the Respondent seeking a revocation of the mandatory cancellation decision.[6] That decision was considered by a delegate of the Respondent who, on 13 September 2022, published the decision to deny the revocation sought.[7]
[5] G documents, G2, Email from Department to applicant – Notice of decision not to revoke visa cancellation made under s 501(3A) of the Migration Act 1958 (Cth), pages 11-12.
[6] Ibid.
[7] G documents, G3, pages 8-14.
On 21 September 2022, the Applicant made an application to this Tribunal for review of the delegate’s decision refusing to exercise the discretion to enliven the powers in
s 501CA(4) of the Act to revoke the mandatory cancellation of the Applicant’s visa.[8]
[8] G documents, G2, Application for review of a decision, pages 3-7.
The hearing of this application proceeded before me on 10 November 2022 with the Applicant giving oral evidence. At the conclusion of the hearing, both parties requested, and were granted, further time to make post-hearing submissions. Subsequently, the Tribunal received further submissions from the Respondent and the Applicant on 17 & 18 November 2022 respectively.
The hearing also received written evidence which was reduced to an agreed Exhibit List, a true and correct copy of which is attached to these Reasons and marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
1The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act to the delegate of the Respondent on 17 June 2021. Thus, the issue before me is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo in relation to the manner in which the balance of factors when determining whether there are grounds for the revocation of a cancellation of visa:[9]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[10]
[9] (2018) FCR 320.
[10] Ibid, at [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, at [31] (Collier J, with whom Logan and Murphy JJ agreed).
Issues
There are, therefore, two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
Does the Applicant pass the character test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c) of the Act, which provides that a person will have a substantial criminal record if:
“…
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
;
…”
Consequently, failure of the character test arises as a matter of law.[11]
[11] Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666; [2009] AATA 47 at [63].
On 23 April 2021, the Applicant was sentenced to a term of imprisonment of 12 months.[12] This sentence was in relation to dangerous operation of a vehicle. The Applicant’s criminal offending, as detailed above, includes a number of other offences committed during the time he has resided in Australia.
[12] G documents, G32, page 169 R v Lambaditis Supreme Court of NSW sentencing transcript.
The 12 month term of imprisonment in the present case is sufficient to satisfy me, and I find, that the Applicant does not pass the character test as he was sentenced to imprisonment for a period of 12 months or more (s 501(6)(a) and s 501(7)(c) of the Act) in relation to his offending.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) of the Act to comply with any directions made in the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction” or “Direction 90”) has application.[13] The Direction provides guidance for decision-makers on how to exercise the discretion and relevantly states that:
“Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”[14]
[13] On 1 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
[14] Direction No 90, at para [6]. See also para [4(1)] which provides that a “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.
The principles in paragraph 5.2
Paragraph 5.2 of the Direction is designed to “provide a framework within which decision-makers should approach their task” pursuant to ss. 501 or 501CA of the Act (as the case may be). Summarised where appropriate, the principles are:
(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.
(2)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community).
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in and contributing to the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct, such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community), is so serious that even strong countervailing considerations may be insufficient in some circumstances; even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
The Primary and Other Considerations
Paragraphs 8 and 9 of the Direction, respectively, stipulate four “Primary Considerations”, and four “Other Considerations” by which I must be guided in making my decision.
The Primary Considerations I must take into account are:
“(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.”[15]
[15] Ibid, para [8].
The Other Considerations which, where relevant, I must take into account, include but are not limited to;
“a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests.”[16]
[16] Ibid, para [9(1)].
Paragraph 7 of the Direction also provides guidance as to how to take into account each Primary and Other Consideration. Briefly summarised, the Direction instructs decision-makers that:
(1)information from independent and authoritative sources should be given appropriate weight;
(2)primary Considerations should “generally” be given greater weight than Other Considerations; and
(3)one or more Primary Considerations may outweigh other Primary Considerations.
I will now turn to addressing the Primary and Other Considerations.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction requires decision-makers to keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the factors set out in paragraph 8.1.1(1) of the Direction. As detailed above, the Applicant has amassed a significant offending history in Australia which runs some seven pages in length.[17]
[17] G2 pages 35-41.
I will now apply the relevant sub-paragraphs of Paragraph 8.1.1(1) of the Direction to ascertain the nature and seriousness of the Applicant’s unlawful conduct in this country.
Paragraph 8.1.1(1)(a)(i)
This sub-paragraph looks for the commission of violent and/or sexual crimes. If an Applicant has committed such offences, this sub-paragraph deems that they are to be viewed “very seriously” by the Australian Government and the Australian community.
The varied nature of the Applicant’s offending as set out above shows a pattern of frequent offending dating back to 2016 and includes the offence for which he was imprisoned to 12 months on 23 April 2021 for dangerous operation of a vehicle. Relevant to this paragraph, the Applicant’s offending, and convictions for that matter, has included grievous bodily harm, common assault, robbery with actual violence, use of personal violence and unlawful assault occasioning bodily harm.
Queensland Police records furnished in this matter relate the Applicant’s violent offending relevantly as:[18]
·Punched a victim with a closed fist from behind in the side of his face.
·Assaulted a taxi driver who was sitting in his taxi and together with 3 others pulled the taxi driver out of the taxi and assaulted him demanding money. The driver required medical assistance at the Logan Hospital for his injuries.
·Assaulted the victim whilst performing his duties at the Brisbane Detention Centre as a detainee officer who felt pain as he was pushed.
[18] Exhibit 11 pages 14-155.
It is without question that the nature of these offences is very serious particularly so as they were committed when the Applicant was on parole.[19]
[19] DGPZ and Minister for Immigration and Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 115.
Paragraph 8.1.1(1)(a)(ii)
This subparagraph looks for the commission of crimes of a violent nature against women or children, regardless of the sentence imposed. These offences are deemed to be viewed as “very serious” by the Australian Government and the Australian community to the point that these offences are taken into account regardless of whether they have attracted a sentence.
The Applicant’s criminal offending record indicates an offence of this nature in which he punched a woman in the face multiple times and pushing her to the ground before he ran from the scene of the assault.[20]
[20] Exhibit 11, SM 2, page 2.
Accordingly, and for the purposes of this sub-paragraph, the Applicant’s offence of violence against this woman must be found to be “very serious” within the nature and extent of his offending.
Paragraph 8.1.1(1)(a)(iii)
This sub-paragraph refers to acts of family violence contained in an applicant’s criminal history. If such offending is contained in the applicant’s history, it is viewed “very seriously” by the Australian Government and the Australian Community.
There is no material before me in respect to offending of this nature. Hence this sub-paragraph holds no relevance.
Paragraph 8.1.1(1)(b)
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention.
With respect to this sub-paragraph, the Applicant’s assault on the detention centre officer, in the performance of his duties, clearly falls within these provisions rendering this offending as serious.[21] Furthermore, he has been charged and convicted of obstructing police on
3 separate occasions. There is nothing to suggest that the Applicant has been engaged in the types of offences otherwise mentioned in this sub-paragraph.[21] Paragraphs 8.1.1(1)(b)(ii) & (iv).
Paragraph 8.1.1(1)(c)
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant.
In this case, I am precluded from taking into consideration any sentences imposed on the Applicant for violent offending committed against women;[22] acts of family violence[23] and any sentence received in respect to conduct which caused a person to enter into or become a party to a forced marriage.[24]
[22] Paragraph 8.1.1(1)(a)(ii).
[23] Paragraph 8.1.1(1)(a)(iii).
[24] Paragraph 8.1.1(1)(b)(i).
Hence, for the purposes of this paragraph, I do not take into consideration the assault on the female victim.[25] From my view of the material in this matter, I do not see that the Applicant has been sentenced for conduct involving him causing a person into a forced marriage or acts of family violence. He has, however, received sentences, in various forms, for non-precluded offending which clearly enliven the provisions of this sub-paragraph as set out in detail above.
[25] Exhibit 11, SM2 11.
The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Therefore, a custodial term must be viewed as a reflection of the objective seriousness of an applicant’s offending.[26] The sheer range of sentencing alternatives imposed on the Applicant indicates both the nature and extent of his unlawful conduct.
[26] PNLB and the Minister for Immigration and Border Protection [2018] AATA 162 at [20].
I find that the sentences judicially imposed on the Applicant for his crimes across a not inconsiderable timeframe are indicative of the very serious nature and extent of his unlawful conduct in Australia.
Paragraph 8.1.1(1)(d)
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction leads a decision-maker to consider the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
Based on the Applicant’s criminal offending history, it is safe for me to conclude that his offending has been frequent in nature. He has committed offences as an adults from 2019 to 2021 and been dealt with judicially on 6 separate occasions. I find that, upon review of the nature of the offences and the sentences imposed show a trend of increasing seriousness.
This criminal history demonstrates a trend of increased seriousness with a pattern of him being convicted and sentenced for less serious offending in the early stages of his criminality with a marked increase in seriousness as time progressed. The Applicant gave evidence both orally[27] and in written form[28] claiming that the “mitigating” factors to his offending were his drug addiction, abuse suffered in juvenile detention and traumatic life experiences. There was no independent evidence adduced by the Applicant with respect to these claims other than his own oral evidence.
[27] Transcript, pages 10-14.
[28] Exhibit 2 and 3.1.
Therefore, I conclude that the elements of this sub-paragraph strongly support a finding that the Applicant’s offending in Australia demonstrates a trend of an increasing nature.
Paragraph 8.1.1(1)(e)
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending. In the present case, there is a clear sequence of increasing seriousness in relation to the offences committed by the Applicant since he turned 18 years of age. Since then, he has been charged with common assault, obstructing a police officer, burglary, unlawful use of a motor vehicle, dangerous use of a motor vehicle, possessing dangerous drugs and utensils.
The Courts’ leniency in relation to the Applicant’s offending from October 2019 does not appear to have served as a deterrent as his offending continued steadfastly and regularly. When viewed cumulatively, as required by this sub-paragraph, the Applicant’s offending shows a trend of ever-increasing seriousness reaching levels which resulted in a custodial sentence of 12 months. This offending demonstrates an obvious indifference to the conduct expected of him by the community and is, in my opinion, very serious when viewed cumulatively.
Paragraph 8.1.1(1)(f)
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction concerns itself with whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
From the material before me, I see no evidence of the Applicant having breached this sub-paragraph of the Direction.
Paragraph 8.1.1(1)(g)
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction points to an inquiry as 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).
There has not been any prior warning, either in writing or otherwise about the consequences that further offending may have on the Applicant’s visa status.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have applied each of the relevant sub-paragraphs contained in paragraph 8.1.1(1) of the Direction. Taking into account the particular applicability to the relevant sub-paragraphs, I am of the view that the totality of the Applicant’s unlawful conduct can be readily characterised as “very serious” in nature.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that, in considering the risk to the Australian community, I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.
Paragraph 8.1.2(2) provides that, in considering the risk to the Australian community, we must have regard to the three following factors on a cumulative basis:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Sub-paragraph 8.1.2(2)(a) requires an assessment of the nature of harm to an individual or the Australian community were the Applicant to engage in further criminal or other serious conduct. I am satisfied that, if the Applicant were to re-offend in any of the categories contained in his criminal history so far, individuals and/or the Australian community could quite likely suffer physical, psychological and/or financial harm. One only needs to look back on the harm the Applicant has already caused in these categories to determine the future harm that would be caused should the Applicant re-offend.
The likelihood of the non-citizen engaging in further criminal or other serious conduct (Sub-paragraph 8.1.2(2)(b) of the Direction)
(iii) Information and evidence on the risk of the Applicant reoffending
I harbour concerns in respect of the Applicant’s risk of recidivism as he has not adduced any independent evidence from a duly qualified clinician with experience in this field. Whilst I accept the Applicant’s expressed remorse for whatever reasons it has come about, there are underlying issues that, in my view, the Applicant has not resolved. Least of which are his drug use into which he relapsed upon hearing of the death of a close relative in New Zealand. He has told this Tribunal of his realisation that drugs have been the major protagonist to his offending and that he has sought rehabilitation and counselling in this area. I am of the view that, given the Applicant’s drug of choice (Methamphetamine) and the well know serious addiction it causes, he will require intensive rehabilitation going forward in order to ameliorate the risk of re-offending when life throws him a curve ball.
Evidence of rehabilitation achieved by the Applicant by the time of this decision
The Applicant’s evidence is that he undertook 2 courses whilst incarcerated namely Drug Arm Explore Program and Kicking Habits Drug Prevention. I note his evidence that he also saw his general practitioner on 4 occasions and a psychologist and still re-offended and ended up in goal again. I am of the view that the Applicant’s rehabilitation, given the addictive nature of his drug of choice, will require considerably more professional treatment on an ongoing basis. Particularly, so that he is better equipped to deal with any adverse life issues he may encounter in the future.
Conclusions about risk
In the circumstances, I find that there is presently a real risk of re-offending, particularly in relation to the Applicant’s past drug dependency. The courses undertaken to date are a good start but he will require ongoing treatment which he accepts that he needs.
Is the risk of harm affected by any of the factors referred to in sub-paragraph 8.1.2(2)(c) of the Direction?
Paragraph 8.1.2(2)(c) provides:
“where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.”
As this matter does not involve the refusal of a visa but an application for the revocation of a mandatory cancellation of the Applicant’s visa, this sub-paragraph is not relevant in the determination of this application.
Conclusion: Primary Consideration 1
With respect to the weight attributable to Primary Consideration 1:
(a)I find that the nature and seriousness of the Applicant’s criminal conduct has been “serious”;
(b)I find that, should the Applicant re-offend, the nature of the harm to individuals or the Australian community would be “very serious” and would involve physical, psychological and material harm to individuals and/or the community at large and not inconceivably at catastrophic levels; and
(c)I assess the Applicant’s risk of further criminal offending or other serious conduct should he be permitted to re-enter the Australian community as relatively high considering the paucity of expert clinical evidence together with the limited rehabilitation he has undertaken to date.
In examination of the material before me, I am led to the conclusion that this Primary Consideration 1 carries moderate weight against revocation of the mandatory cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
On the material before me, there is nothing to suggest that there is any relevance to this consideration.
Primary Consideration 3: The best interests of minor children in Australia
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination as to whether non-revocation under section 501CA of the Act is, or is not, in the best interests of a child who would be affected by the decision. Paragraphs 8.3(2) and 8.3(3) of the Direction respectively, contain further stipulations and provisions. The former provides that for their interests to be considered, the relevant child (or children) must be under eighteen years of age at the time when a decision, about whether to refuse or cancel the visa or not to revoke the mandatory cancellation decision, is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) of the Direction provides a list of factors to be considered in determining the best interests of minor children. Those factors relevantly comprise for present purposes:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; and
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Identification of the relevant minor children
Prior to an application of the factors speaking to the allocation of weight to this Primary Consideration 3, it is necessary to identify the minor children relevant to this element of the consideration.
The Applicant’s evidence is that he has a nephew, [Child A] aged 10 months who is his sister Aaria Tapsell’s child. His evidence is that he has met the child on 2 occasions whilst he has been in detention and for an hour each time. He has told this Tribunal that he will be a “hands on” father figure to this child. The Applicant’s step-mother also stated this in her statement of 18 October 2022. It is noteworthy that no evidence was proffered with respect to the child’s father and his view on this contention. Furthermore, the Applicant’s evidence is that if permitted to re-enter the community, he intends to relocate to Mount Isa yet his nephew lives in Brisbane and there was no evidence of his sister and nephew moving to Mount Isa.
Conclusion: Primary Consideration 3
On the evidence before me, I find that whilst this consideration may carry a modicum of weight, the Applicant’s desires to become this child’s father figure it may not be realistic in the circumstances and for the reasons above. Accordingly, I allocate a slight weight in favour of revocation to this consideration.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
It is clear that the expectations of the Australian community apply regardless of whether a non-citizen poses a measurable risk of causing harm. The Australian community expects non-citizens to obey Australian laws while in Australia. [29] The Direction provides:
[29] Paragraph 8.4(3) Direction 90.
“This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the governments views as articulated , without independently assessing the community’s expectations in the particular case.”[30]
[30]With respect to the requirements of paragraph 8.4(1) of the Direction, the expectations can be expressed as:
·the Australian community expects that non-citizens will obey the Australian laws while in Australia; and
·where a non-citizen has either breached the above expectation or there is an unacceptable risk that the non-citizen will breach the above expectation;
then the Australian Community expects the Australian Government to not allow the
non-citizen to enter or remain in Australia.
It follows that, given the nature of the Applicant’s offending, the Australian community’s expectation, in the ordinary course, would expect the Australian Government to not allow the Applicant to remain in Australia.
Furthermore, paragraph 8.4(2) directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, 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 or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Relevant to this sub-paragraph, are the Applicant’s criminal history charges of obstructing police on 1/2/2021 and 23/4/2021). In addition to the charges involving police, the evidence shows that Applicant has also been involved in an assault on a Detention Centre Officer.[31]
[31] Exhibit 11, SM2, page 15.
Finally, the issue remaining to be determined is whether there are any factors which modify or affect the Australian community’s expectations. This determination is assisted by paragraphs 5.2(4) and (5) of the Direction which provides:
(i)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa;
(ii)the Australian community has a low tolerance of criminal or other serious conduct by non-citizens who have participated in or contributing to the Australian community for only a short period of time;
(iii)Australia may afford a higher level of tolerance of criminal or serious conduct by non-citizens who have lived in Australia most of their lives; and
(iv)the nature of the non-citizen’s conduct or harm that would be caused if the conduct were to be repeated may be so serious that even strong counter balancing considerations may be insufficient to justify a positive visa outcome to the non-citizen.
“Limited stay” visas are not defined in the Act, however, for present purposes it is not sensible for the reference in (i) above to encapsulate permanent residence visas as the holders of those visas have a right to remain without time limitations. Therefore, and as the Applicant was the holder of a visa that allowed him to remain in Australia indefinitely this principle does not apply to him.
In relation to (ii) the Applicant has been in Australia on a more or less permanent basis since he was 11 years old and has undertaken most of his education here up until year 10 of high school. He has been a member of the workforce firstly at Red Rooster and then entered the building industry as a scaffolder, which he states he intends to pursue when he leaves detention. Whilst the Applicant has been in Australia for some 12 years most of that time he was as a minor and spent a considerable period of time in juvenile detention for a long list of offending. The Applicant’s contribution to the community I find to be moderate in adulthood (4 years).
Given the time the Applicant has spent in Australia, I find that the level of tolerance in (iii) above may well be slightly higher given that he has spent more time in Australia than elsewhere.
As to (4) above, I find that, should the Applicant re-offend, the harm which would be caused would be such that it weighs heavily against revocation of the mandatory cancellation.
Thus, I am of the view that the Australian community’s expectations are modified to the extent that the community’s tolerance of Applicant’s criminal conduct is moderately higher given the time he has spent here.
Conclusion: Primary Consideration 4
Primary Consideration 4 carries a moderate, level of weight in favour of revocation.
Other Considerations
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs in turn.
Other Consideration (a): International non-refoulement obligations
From the evidence before me in both written and oral form, the Applicant’s possible removal to New Zealand would not breach Australia’s international non-refoulment obligations. Therefore, this consideration is not relevant in this case.
Other Consideration (b): Extent of Impediments if removed
Paragraph 9.2 of Direction requires a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant gave oral evidence at the hearing that the only family he has in New Zealand is his grandmother, however, he has not been in contact with her since he was 6 or 7 years old.
The Applicant is a young man who is grappling with drug issues and will need on-going assistance and support if he is to have any chance of overcoming his addiction. Despite the fact that he would have access to rehabilitation and counselling services in New Zealand, I am of the view that there is a likelihood that he will not avail himself of the treatment and services he requires without the assistance, guidance and support of his family who are all here in Australia. In circumstances where an individual is sent to a country where they have no support network, employment contact or social support, the drive to seek counselling services can be completely compromised. The sheer isolation the Applicant would face in New Zealand could conceivably lead him back to a life of criminality and drug abuse. His evidence was that he is seeking a treatment program to deal with his mental health issue in Australia and has the support of his family in that respect.
The Applicant has not lived in New Zealand since he was 10 years old and, as mentioned above, has no family or friends who could support his rehabilitation journey in that country. These impediments are not minor in any respect and particularly where health considerations, with heightened relevance as the Applicant’s ability to access and maintain rehabilitation/counselling could be compromised.
In his statement to the Tribunal (Exhibit 3.1), the Applicant talks about his mental health challenges and how being close to his family and his nephew will assist him in overcoming his addiction issues.
Considering the above, this Other Consideration carries a moderate weight in favour or revocation.
Other Consideration (c): Impact on victims
Paragraph 9.3(1) states that decision-makers must consider the impact of a s 501 or 501CA decision on members of the Australian community, including victims of the non- citizen’s criminal behaviour and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There has been no evidence adduced by the Respondent in respect to any impact the Applicant’s presence in Australia would have on his victims. Therefore, this Other Consideration carries a neutral amount of weight.
Other Consideration (d): Links to the Australian Community
Paragraph 9.4 of the Direction requires that decision makers must have regard to an Applicant’s links to the Australian community.
There are two factors which I must assess in determining the level of weight allocable to Other Consideration (d). They comprise: (1) the strength, nature, and duration of ties to Australia; and (2) the impact on Australian business interests if he cannot remain here. I consider each in turn.
The strength, nature, and duration of ties to Australia
With reference to the first part of this Other Consideration, I will consider three elements. Firstly, I will assess the impact of a refusal to revoke the mandatory cancellation decision on the Applicant’s, “immediate family members”, where those people have a right to remain in Australia indefinitely. Secondly, I will assess the impact of a refusal to revoke the mandatory cancellation decision by taking into account the strength, nature and duration of any other ties the Applicant has to the Australian community. Thirdly, I will assess the strength, nature and duration of any other family or social links the Applicant may have with people who have an indefinite right to remain in Australia. I address each component in turn.
Impact of non-revocation on the Applicant’s immediate family
This initial exercise requires me to identify the Applicant’s immediate family in Australia. On the evidence before me, the Applicant’s immediate family comprises his father, Shannon Lee McGregor, his step-mother, Stacey Davies, his grandmother, Monica McGregor, his sister, Aaria Tapsell and his nephew, [Child A]. It is without question that these members of the Applicant’s family will be adversely affected by the removal of the Applicant from Australia, and they have given evidence to that effect either orally or in writing (except for [Child A]). That evidence shows that, despite the Applicant’s extensive criminal conduct which began in his late teen, he remains a much-loved member of his family unit with all members wanting to support and assist him in his rehabilitation going forward.
Strength, nature, and duration of ‘other ties” – length of residence
There are two necessary enquiries referable to the extent of the Applicant’s, “other ties” to Australia. The first of those involves the question of how long he has resided in Australia, including whether he came here as a child.
As mentioned above, the Applicant has resided in Australia more or less on a permanent basis since he was 11 years old having arrived on 26 July 2012. He attended school here until he left in grade 10 to work for Red Rooster in 2015 to 2016. He then was employed by Phoenix Scaffolding from 2020-2021. He has also enjoyed a membership of the East Tigers Rugby League Club for which he also played football.
I will now refer to the two tempering sub-elements in paragraph 9.4.1(2)(a) of Direction. The first of such sub-elements requires me to allocate less weight if the Applicant began offending soon after arriving in Australia in 2012. His first conviction as an adult was in Holland Park Magistrates Court on 22/10/2019 some 7 years after arrival. Hence, I assess this element as neutral.
The second of the two tempering sub-elements compels an assessment of the extent of the Applicant’s positive contributions to the Australian community. The evidence before me is that the Applicant worked for what appears to be one year at Red Rooster and a further year for Phoenix Scaffolding. Whilst this cannot be by any means considered a solid employment history in Australia, he would have paid taxation on his income and made some contributions to the public purse. Therefore, in respect to the second tempering sub element, I apply a moderate weight in favour of the Applicant.
Consequently, I find the first tempering sub-element to be neutral, with the second one attracting moderate weight in the Applicant’s favour of revocation of the decision to mandatorily cancel his visa.
Strength, nature, and duration of “other ties” – family and other social links
The Applicant’s evidence is that, apart from his immediate family, he also has an aunt, Raymer Mamaku, and uncle, William Anaru, here in Australia and that he actual came to Australia with them in 2012.[32] He also gave oral evidence of having 2 stepsisters here in Australia but did not provide their names or further details.[33] There is no evidence before me about how these “other ties” will be impacted by a non-revocation decision.
[32] Transcript, p 57, lines 35-44.
[33] Ibid, page 32, lines 4-10.
Impact on Australian business interests
I am mindful that paragraph 9.4.2(3) of the Direction compels an assessment of the Applicant’s employment links to Australia and, in particular, with reference to any impact his removal may have on, “Australian business interests”.
In the present case, I find that this component of Other Consideration is not relevant.
Weight allocable to Other Consideration (d): links to the Australian community
In relation to the first part of this Other Consideration, namely the strength, nature and duration of the Applicant’s ties to Australia, and having analysed its three elements, I find that the evidence as whole points to an allocation of a moderate level weight in favour of revocation of the cancellation decision.
Finding: Other Considerations
I now summarise the respective weights I have allocated to each of the Other Considerations (specified in the Direction) relevant to the present matter:
(a)international non-refoulement obligations: not relevant;
(b)extent of impediments if removed: Slight measure of weight in favour of revocation;
(c)impact on victims: neutral as no evidence adduced;
(d)links to the Australian community: carries a moderate level of weight in favour of revocation.
CONCLUSION
Is there another reason to revoke the cancellation of the Applicant’s visa?
Pursuant to s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is “another reason”, pursuant to the Direction, to revoke the cancellation. As noted above, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction and find as follows:-
· Primary Consideration 1: carries a moderate level of weight against revocation;
· Primary Consideration 2: neutral weight;
· Primary Consideration 3: slight weight in favour of revocation; and
· Primary Consideration 4: moderate, but not determinative weight in favour of revocation.
I have outlined the weight attributable to the Other Considerations above in [105]. I am of the view, and find, that weight I have given to Primary Consideration 1 is not sufficient to outweigh the combined weight I have allocated to the remaining Primary Considerations and the Other Considerations.
Therefore, my overall view of the evidence, as is relevant to the Primary and Other Considerations in Direction 90, favours the revocation of the delegate’s visa cancellation decision made on 8 June 2021, to the extent that the Applicant’s visa status is restored him.
Consequently, I find that there is an “another reason” as to why the non-revocation of the mandatory cancellation decision made by a delegate of the Respondent on
12 September 2022 should be revoked pursuant s 501CA(4)(b)(ii) of the Act.
Decision
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made by the delegate of the Respondent dated 12 September 2022 to not revoke the cancellation of the Applicant's visa and substitutes a decision to revoke the mandatory cancellation of the Applicant's visa
I certify that the preceding 111 (one-hundred-and-eleven) paragraphs are a true copy of the reasons for the decision herein of Member A Julian-Armitage
...............[SGD]…….........
Associate
Dated: 28 February 2023
Date of hearing:
Date of final submissions:
10 November 2022
24 November 2022
Solicitor for the Applicant:
Ms Sarvashree Singh (Emerson Migration Law)
Solicitor for the Respondent
Ms Lauren Hargrave (Clayton Utz Lawyers)
Annexure A – Exhibit Register
Exhibit Number
Description of Exhibit
Party
Date of Document
Filing Date
1
G Documents
(G1-G13, paged 1-181)
R
Various
30 Sep 2022
2
Applicant’s Statement of Facts, Issues and Contentions (3 pages)
A
-
20 Sep 2022
3
Respondent’s Statement of Facts, Issues and Contentions dated 3 November 2022
(22 pages)
R
3 Nov 2022
3 Nov 2022
3.1
Applicant’s Personal Statement dated 20 October 2022 (unsigned) (3 pages)
A
20 Oct 2022
20 Oct 2022
3.2
Further Statement of Applicant dated 26 October 2022 (3 pages)
A
26 Oct 2022
27 Oct 2022
3.3
Applicant’s Submissions in Reply lodged on 7 November 2022 (9 pages)
A
-
7 Nov 2022
4
Statement of Ms A Tapsall dated 18 October 2022 (2 pages)
A
18 Oct 2022
20 Oct 2022
5
Statement of Mr G Johnson dated 12 October 2022 (1 page)
A
12 Oct 2022
20 Oct 2022
6
Statement of Ms M McGregor dated 19 October 2022 (2 pages)
A
19 Oct 2022
20 Oct 2022
7
Statement of Mr S McGregor dated 18 October 2022 (2 pages)
A
18 Oct 2022
20 Oct 2022
8
Statement of Mr S Glasgow dated 18 October 2022 (Email) (2 pages)
A
18 Oct 2022
20 Oct 2022
9
Statement of Ms S Davies dated 18 October 2022 (2 pages)
A
18 Oct 2022
20 Oct 2022
10
Email - Counselling appointment confirmation dated 27 October 2022 (2 pages)
A
27 Oct 2022
27 Oct 2022
11
Combined Summons Material SM1 And SM2 Bundle (18 pages)
R
Various
31 Oct 2022
12
RAQ counselling appointment – Email confirmation (2 pages)
A
2 Nov 2022
7 Nov 2022
13
Statement of Mr J Whiteley (2 pages)
A
-
7 Nov 2022
14
Statement of Mr G Johnson dated 27 October 2022 (2 pages)
A
27 Oct 2022
7 Nov 2022
15
Statement of The Voice of a Survivor signed by Ms L Campbell (1 page)
A
3 Nov 2022
7 Nov 2022
Paragraph 8.4(4) and Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.
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7
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