MCRL and Minister for Immigration and Border Protection (Migration)

[2017] AATA 505

MCRL and Minister for Immigration and Border Protection (Migration) [2017] AATA 505 (19 April 2017)

Division:GENERAL DIVISION

File Number:           2016/4619

Re:MCRL  

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Deputy President Dr Christopher Kendall

Date:19 April 2017

Place:Perth

The decision under review is affirmed.

.......................[sgd]....................................

Deputy President Dr Christopher Kendall

CATCHWORDS

MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record and does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – protection of the Australian community from criminal or other serious conduct – expectations of the Australian community – other considerations – strength, nature and duration of ties – impact on victims – extent of impediments if removed – decision under review affirmed

LEGISLATION

Migration Act 1958 – s 499(2A) -- s 501(3A) – s 501(6) – s 501(7)(c) - s 501CA(4)

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 – paragraphs 6.2, 6.3, 7(1), 8(1), 13(2), 13.1(1), 13.1(2), 13.1.1, 13.1.2, 13.3(1), 14(1)(b), (d) and (e), 14.2(1), 14.5(1)

REASONS FOR DECISION

Deputy President Dr Christopher Kendall

19 April 2017

INTRODUCTION

1. This matter requires the Tribunal to determine whether it should exercise the discretion in s 501CA(4) of the Migration Act 1958 (Cth) (the “Migration Act”) to revoke an earlier decision to cancel a visa held by the applicant in these proceedings, MCRL.

2. The applicant will be referred to as MCRL throughout this decision.  The Tribunal determined that there were confidentiality issues in relation to MCRL’s criminal offences.  The names of witnesses appearing before the Tribunal and those who provided letters of support have also been altered to ensure confidentiality. 

3. MCRL is 23 years old.  He migrated to New Zealand as a refugee.  In June 2007, MCRL migrated with his family from New Zealand to Australia.  He was a teenager at that time. 

4. MCRL was granted a Class TY Subclass 444 (temporary) visa (the “visa”) on 17 June 2007. He has remained in Australia since that date.

5. Between 2009 and 2014 MCRL committed a significant number of criminal offences.  He was sentenced to a term of imprisonment for some of these offences, both as a juvenile offender and as an adult offender.  Some of these offences were violent in nature.

6. In March 2015, MCRL’s visa was cancelled (the “Cancellation Decision”) under section 501(3A) of the Migration Act 1958 (the “Migration Act”) (G11 and G12). The visa was cancelled because it was determined that MCRL had a “substantial criminal record” as that term is defined in section 501(7)(c) of the Migration Act. Specifically, MCRL had been sentenced to a term of imprisonment of 12 months or more and was also (at the time his visa was cancelled) serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or Territory.

7. MCRL’s visa was cancelled while he was serving a term of imprisonment. On his release from prison in 2015 he was transferred to immigration detention. He has remained in detention since that time.

8. MCRL requested revocation of the Cancellation Decision on 30 March 2016 (G17).

9. On 4 August 2016, a delegate of the Minister for Immigration and Border Protection (the “Minister”) decided, acting under section 501CA(4) of the Migration Act, not to revoke the Cancellation Decision (G7). MCRL was notified of this refusal on 8 August 2016 (G7).

10. By application to this Tribunal dated 31 August 2016, MCRL seeks review of this decision (G2).

    ISSUES

11. The issues for determination by the Tribunal are:

    (i)whether MCRL passes the “character test” as that term is used in s 501(6) of the Migration Act; and

    (ii)if not, whether the discretion in s 501CA(4) of the Migration Act should be exercised in MCRL’s favour (i.e. whether the decision to cancel his visa should be revoked by the Tribunal standing in the Minister’s shoes).

    EVIDENCE

    General

12. This matter was heard in Perth on 20 March 2017.  MCRL appeared in person and was represented by his solicitor, Mr Udall.  The Minister was represented by Mr Burgess.  The Tribunal thanks Mr Udall and Mr Burgess for their assistance.  This matter raised complex legal and social issues.  The Tribunal was greatly assisted by both Mr Udall and Mr Burgess and notes, in particular, the respect they showed each other and the witnesses who appeared before the Tribunal. This style of advocacy is well suited to a tribunal of this sort and is much appreciated.

13. The evidence before the Tribunal consisted of:

    ·A 128 page set of G documents (G1 to G23) (R1);

    ·A Statement of Facts, Issues and Contentions from MCRL’s solicitor dated 7 November 2016 (A1) with attached Certificate of Participation in Life-Skills Re-Entry Program in 2015;

    ·A Factsheet from a youth service provider (A2)

    ·A Statement of Facts, Issues and Contentions from the Minister dated 29 November 2016;

    ·Summonsed records from the WA Department of Transport and WA Police (R3 and R4).

14. The Tribunal also heard oral evidence from MCRL, his mother and a youth worker who had worked with MCRL over a lengthy period.

15. The Tribunal has reviewed all of the material before it and highlights relevant materials below.

    CONSIDERATION

    (i)        Does MCRL pass the Character Test?

16. The Tribunal must first consider whether MCRL passes the “character test” as that term is defined in s 501 of the Migration Act.

17. Section 501 of the Migration Act deals with refusals or cancellations of visas on character grounds. Subsection 501(3A) provides that the Minister must cancel a visa that has been granted to a person if:

    (a)the Minister is satisfied that the person does not pass the character test because of the operation of:

    (i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (b) or (c); or

    … and

    (b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory.

18. Section 501(6) of the Migration Act provides that a person does not pass the character test if:

    (a)the person has a substantial criminal record (as defined by subsection (7)). [Emphasis added]

19. Section 501(7) of the Migration Act relevantly provides;

    (7)For the purposes of the character test, a person has a substantial criminal record if:

    …

    (c)the person has been sentenced to a term of imprisonment of 12 months or more. [Emphasis added]

20. It is common ground that:

    · as a consequence of receiving a sentence of a term of imprisonment in excess of 12 months MCRL has a “substantial criminal record” and does not, as a result, pass the character test in s 501(6) of the Migration Act. This arises because MCRL had been convicted in the Perth Children’s Court of Aggravated Assault with Intent to Rob, several counts of Aggravated Burglary, Stealing a Motor Vehicle and several driving offences for which he was sentenced to multiple terms of 15 months detention;

    · as MCRL was serving a sentence of imprisonment, on a full-time basis in a custodial institution, he was liable for mandatory cancellation of his visa pursuant to s 501(3A) of the Migration Act.

21. On the evidence before it, the Tribunal finds that MCRL does not pass the character test as that term is defined in the Migration Act.

    (ii)       Should the Tribunal Revoke the Decision to Cancel MCRL’s Visa?

22. Having determined that MCRL does not pass the character test and was liable for mandatory cancellation of his visa, the Tribunal must now consider whether the mandatory cancellation of MCRL’s visa should be revoked by the Tribunal standing in the Minister’s shoes.

23. Section 501CA(4) of the Migration Act provides that the Minister (and the Tribunal) may revoke the original decision to cancel a visa 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. [Emphasis added]

24. The central question before the Tribunal is whether there is “another reason” to revoke the original decision to cancel MCRL’s visa. In considering MCRL’s request for revocation of the cancellation of his visa, the Tribunal must comply with Direction No. 65: as per section 499(2A) of the Migration Act. Direction No 65 was issued by the Minister on 22 December 2014 and is binding on the Tribunal from that date.

25. Paragraph 6.2 of Direction No 65 provides “general guidance” to the Tribunal in relation to the character test and the exercise of the Tribunal’s discretion to revoke a decision to cancel a visa.  It states:

    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)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.

    (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, or whether to revoke a mandatory cancellation under section 501 CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.

26. Paragraph 6.3 of Direction No 65 then sets out a number of “Principles” to be applied by the Tribunal, including the following:

    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.

    …

    (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.

27. Paragraph 7(1) of Direction No 65 provides guidance to the Tribunal on how to determine whether the mandatory cancellation of a non-citizen’s visa should be revoked. Paragraph 7(1) states:

    7.        How to exercise the discretion

    (1)       Informed by the principles in paragraph 6.3 above, a decision-maker:

    …

    (b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.

28. Paragraph 8(1) of Direction No 65 further states:

    8.        Taking the relevant considerations in account

    (1)Decision-makers must take into account the primary and other considerations relevant to the individual case. ...

    (2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

    (3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of the visa.

    (4)Primary considerations should generally be given more weight than the other considerations.

    (5)One or more primary considerations may outweigh other primary considerations.

29. Part C of Direction No 65 sets out considerations that are relevant when determining whether to exercise the discretion in s 501CA(4) of the Migration Act.

    Primary Considerations

30. Pursuant to paragraph 13(2) of Direction No 65, the following are “primary considerations” that the Tribunal must take into account in deciding whether to revoke the cancellation of an applicant’s visa:

    i.Protection of the Australian community from criminal or other serious conduct;

    ii.The best interests of minor children in Australia; and

    iii.Expectations of the Australian community.

    (i)        Protection of the Australian Community

31. Paragraph 13.1(1) of Direction No 65 provides that decision-makers considering the protection of the Australian community should have regard to the principle in paragraph 6.2(1) (set out above).  Paragraph 13.1(2) then identifies two other factors to which consideration should also be given:

    (a)       The nature and seriousness of the person’s conduct to date; and

    (b) The risk to the Australian community should the person commit further offences or engage in other serious conduct. [Emphasis added]

    (a)       Nature and seriousness of the conduct

32. Paragraph 13.1.1(1) of Direction No 65 gives a non-exhaustive list of factors to which decision-makers must have regard in considering the nature and seriousness of a person's criminal conduct. They include:

    13.1.1 The nature and seriousness of the conduct

    (1) In considering the nature and seriousness of the person's criminal offending or other conduct to date, decision-makers must have regard to factors including:

    (a)The principle that, without limiting the range of offence 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), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

    (c)       The sentence imposed by the courts for a crime or crimes;

    (d)The frequency of the person’s offending and whether there is any trend of increasing seriousness;

    (e)       The cumulative effect of repeat offending;

    (f)Whether the non-citizen has provided false or misleading information to the department, including not disclosing prior criminal offending;

    (g)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);

    (h)Where the non-citizen is in Australia, that 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 is serious, as is an offence against section 197A of the Act;

33. The evidence shows that MCRL has an extensive criminal record. 

34. The full extent of MCRL’s criminal between July 2009 (when he was a minor) and December 2014 (when he was an adult) is as follows:

    Offenses committed when MCRL was a minor

    Sentenced July 2009

    a.Steal motor vehicle to use without the consent of the owner - Referred to juvenile justice team, 38 days detention (concurrent)

    b.Aggravated burglary with intent in dwelling - Referred to juvenile justice team, 38 days detention (concurrent)

    Sentenced September 2009

    c.        Indecent act with intent to offend - 38 days detention (concurrent)

    d.        Stealing - No punish time spent in custody

    e.        Trespass - No punish time spent in custody

    Sentenced December 2009

    f.         Common assault - No punish time spent on remand in custody

    g.        Damaging property - No punish time spent on remand in custody

    h.        Stealing (two counts) - No punish time spent on remand in custody

    i.Wilfully & unlawfully destroy or damage property (two counts) - No punish time spent on remand in custody on each count

    Sentenced February 2010

    j.         Aggravated armed robbery - 18 months detention (concurrent)

    k.Aggravated burglary and commit offence in dwelling - 5 months detention (concurrent)

    l.Aggravated burglary and commit offence in dwelling - 12 months detention, 6 months as cumulative

    m.Aggravated burglary and commit offence in place - 6 months detention (concurrent)

    n.Aggravated robbery (two counts) - 15 months detention (concurrent) on each count

    o.        Assault occasioning bodily harm - 6 months detention (concurrent)

    p.        Stealing - No punish time spent on remand in custody

    Sentenced April 2011

    q.        Aggravated assault with intent to rob - 15 months detention (concurrent)

    r.Aggravated burglary and commit offence in dwelling - 15 months detention (concurrent)

    s.Aggravated burglary and commit offence in place - 15 months detention (concurrent)

    t.         Aggravated burglary with intent in place - 15 months detention (concurrent)

    u.Aggravated burglary with intent in dwelling - 15 months detention (concurrent)

    v.Steal motor vehicle to use without the consent of the owner (two counts) -15 months detention (concurrent) on each count

    w.No authority to drive, never held - No punish time spent on remand in custody

    x.Fail to report incident (property) - No punish time spent on remand in custody

    y.Careless driving - disqualified - 3 months. 15 months detention (concurrent). 3 demerit points

    Offenses committed when MCRL was an adult

    z.        Disorderly behaviour in public - $800 fine (March 2012)

    aa.Disorderly behaviour in a public place - $1,000 fine (January 2013)

    bb.      Common assault - $1,200 fine (September 2013)

    cc.Unauthorised driving by learner drivers - $150 fine (September 2013)

    dd.Unauthorised driving by learner drivers - $200 fine (October 2013)

    ee.Driving under influence of alcohol - $1,000 fine, licence disqualified for 12 months (October 2013)

    ff.Assault driver of passenger vehicle -  imprisonment 10 months (concurrent) (November 2014)

    gg.      Obstructing public officers - fined $600 (November 2014)

    hh.Consume alcohol in or on conveyance or facility - fined $400 (December 2014)

    ii.         Obstructing public officers - fined $400 (December 2014)

1. Some of MCRL’s offences were violent in nature.  In this regard, the Tribunal notes the following evidence before it.

2. In 2014, MCRL was convicted of Assault on a Driver of a Passenger Vehicle for which he was sentenced to 10 months imprisonment. In the sentencing remarks (discussed further below) (G13) the presiding Magistrate described this assault as “an extremely serious offence” in which MCRL made a “sustained and vicious attack” by punching the victim, a taxi driver, in the face, then striking him to the head with a metal coin dispenser. The victim received a 3cm laceration to the top of his head.  The Magistrate described the attack as having had a devastating effect on the victim, who has a wife and three year old child.  Disturbingly, His Honour noted that the victim has been unable to continue working as a taxi driver (and has thus lost his source of income) and his further university studies have also suffered (G7).

3. MCRL’s criminal history as a juvenile includes multiple convictions for aggravated robbery, aggravated armed robbery, assaults, property offences including several aggravated burglaries, an indecent act, and theft of motor vehicles. He was sentenced as a juvenile to multiple terms of detention of six months, 12 months, 15 months and 18 months (G7).

4. Some of these juvenile offences were also crimes of violence. In that regard, the Tribunal was referred to the following police summaries of various offences that occurred in January 2010 (R4):

   OFFENCE: Aggravated Armed Robbery – Section 392(c)&(d) Criminal Code

   … the accused was on … Avenue in … with another co-offender (uncharged, inquiries continuing).

   The accused approached an African male (unknown victim) who was walking on … Avenue in … and speaking on a mobile telephone. The accused picked up a nearby stick (part of a broken chair leg) and struck the victim across the back causing the stick to break. The accused and co-offender then punched the victim and stole his mobile telephone.

   … the accused was arrested as a suspect in relation to other matters. He subsequently participated in an Electronically Recorded Interview in which he made admissions to the offence and nominated a co-offender.

   OFFENCE: Assault Occasioning Bodily Harm – Section 317(1) Criminal Code

   … the accused and three others (co-offenders, inquiries continuing) were in the vicinity of the corner of … Avenue and ... Avenue in ... 

   The complainant … was a passenger in a white Holden Commodore utility vehicle. The accused and associates caused this vehicle to stop on … Avenue.  The co-accused assaulted the driver of this vehicle … and the complainant. The accused punched the complainant … causing him bodily harm.  The accused and co-offenders departed the area and the matter was reported to police.

   … the accused was arrested as a suspect in relation to other matters. He subsequently participated in an Electronically Recorded Interview in which he made admissions to the offence and nominated co-offenders

   OFFENCE: Aggravated Robbery – section 392(d) Criminal Code

   … the victim was walking along … Avenue, … towards … Avenue.

   As the victim approached …, a male offender crossed the road and approached the victim, demanding money. The victim stated he had no money.

   Approximately … further offenders … (15 - 18 years) crossed the road and surrounded the victim. Five offenders repeatedly punched and kicked the victim causing him to fall to the ground. The victim was further punched and kicked to the face, torso, legs, arm and thigh. One offender removed and stole the victim’s wallet which was located in his side pocket.

   Inside the wallet was $10 cash as well as various cards and photos.  The offenders walked back to and entered …

   On …, 2009, … Detectives executed a CIA search warrant at … where the accused was arrested as a suspect for this and other offences. The wallet was also recovered from within the premises. The accused was conveyed to … Police Station where he participated in a video record of interview.

   The accused admitted his involvement in this offence, stating he saw his friends attacking the victim and ran across the road to join in. He stated he did not do any kicking or punching but did reach into the victims pocket and steal the wallet. When he got back to the house he took the money out and kept it, discarding the rest.

5. MCRL does not deny that he either committed or participated in the commission of these violent crimes or stood by while they occurred.  In a written statement dated 1 April 2015, MCRL did, however, offer the following explanation for his conduct (G18 at 103):

   I am … originally from Ethiopia in Africa.  …. [M]y family and I left Sudan as refugees and ended up setting [sic] down in New Zealand.  In 2002 my father migrated to Australia, then in 2007 I moved to Australia to live with my father.

   I am currently under the status of refugees act [sic] and am a person who has a right to remain in Australia.  If I’m to be deported back to New Zealand I will lose my immediate family.  I have no-one in New Zealand who I know and trust.

   During my time in New Zealand and in Australia I have been victim to rasicm [sic]  which left me with low self esteem.  As a result I would spend time with other people who didn’t have good self esteem (negative peers).  This is where my anti-social behaviour started and resulted in me assaulting my victim.

   I know I had no right to act the way I did and don’t blame anybody other than myself for what I did.

6. In oral evidence before the Tribunal, MCRL again expressed remorse for his past conduct and sought to offer further explanation for his conduct.  He explained:

   ·He had experienced racism in New Zealand and Australia which affected his self-confidence;

   ·He had been “tricked” by his mother to move to Australia from New Zealand and live with his father;

   ·His father was violent and he did not want to live with his father;

   ·As a result, he spent a great deal of time living on the streets;

   ·He drank too much and most of his offences are alcohol related;

   ·He was “into rap music” and thought going to jail would be a “cool” thing to do and it would also provide him food and safety away from the streets where life was hard.

7. In relation to the seriousness of MCRL’s criminal conduct, the Tribunal notes submissions made on his behalf by his solicitor in a Statement of Facts, Issues and Contentions dated 7 November 2016:

   Nature and Seriousness of the Conduct

   Seriousness of Criminal Offending

   6.MCRL accepts that he committed a number of serious crimes as a juvenile and more recently as an adult and, further, that as a result of him being sentenced to combined terms of detention and imprisonment of 12 months or more he fails the character test as defined by s.501 of the Act.

   Mitigating factors

   7.We submit that the following factors be considered as mitigating circumstances to MCRL’s offending:

   Length of Sentences

   8.MCRL has spent a very short amount of time in prison. His longest prison term was for 10 months in 2014. The fact that he has spent a very short time in prison and that his other (adult offences) resulted in fines only indicates that his offending and the nature of these offences were at the lower end of the spectrum of seriousness and further that mitigating circumstances (including strong prospects of reform) must have been present.

   Supporting evidence:  National Police Certificate Pgs. 29-32 T-Docs

   Age

   9.At time of writing, MCRL is 23 years of age. The majority of his offending took place between the ages of 15 and 17. The Australian community tolerates younger people making stupid mistakes. MCRL’s mistakes were as a direct result of being with the ‘wrong crowd’, drinking alcohol and youth. MCRL has acknowledged his previous alcohol abuse issues and plans to stay away from alcohol for good, work and only associate with his closest friends that have stood by him during his time in prison and detention.

   Supporting evidence:       Personal Statement of MCRL Pgs. 103 - 107 T-Docs

   Personal Circumstances

   10.MCRL’s personal circumstances leading up to the commission of his crimes are significant in terms of what led him to behave as he did. These are dealt with in turn below:

   Family Life as a Child

   11.MCRL arrived to New Zealand Australia … as a … UNHCR mandated refugee from Sudan. He was granted humanitarian status because of political turmoil and subsequent war in Sudan. It is submitted that MCRL experienced some psychological trauma as a child having spent his youth in a war situation in Sudan.

   Alcohol Abuse

   12.MCRL has a significant history of alcohol abuse. A traumatic childhood, associating with the wrong crowds, feelings of hurt and anger and racism we submit, led to MCRL’s alcohol dependency issues. It is further submitted that MCRL’s abuse of alcohol goes a long way to explaining his behaviour. The majority – if not all – of his criminality was related to him being intoxicated or otherwise being under the influence. Although being under the influence of alcohol is not an excuse for his behaviour, it is a mitigating factor because:

   a)    the resulting crimes were not pre-meditated; and

   b)    there would be no motivation to commit a crime or re-offend in the absence of alcohol use.

   Supporting evidence:  Personal Statement of MCRL Pgs. 103-107 T-Docs Statement of … pg 121 of T-Docs

   …

   25.The crimes MCRL has committed were serious but, in line with Government and community expectations, MCRL has proven that he deserves a second chance in this country. MCRL has shown strong evidence of reform and has demonstrated that he has rehabilitated himself. Given his young age …. and having paid his debt to society, he deserves a second chance.

8. Counsel for the Minister, in turn, in a Statement of Facts, Issues and Contentions dated 29 November 2016 contended:

   14.The respondent contends that the applicant’s offending to date is of a serious nature. In assessing the seriousness of the applicant’s conduct, the Tribunal must have regard to:

   a.The fact that a number of the applicant’s offences have been violent in nature: 13.1.1(1)(a) of Direction 65. This includes the applicant’s multiple offences as a minor for assault (including aggravated assault and assault occasioning bodily harm) and as an adult for common assault and the assault on the driver of a passenger vehicle charges.

   The assault on the taxi driver (for which he received 10 months imprisonment) was especially serious being described in the sentencing remarks as:

   a sustained and vicious attack involving a punch to the left side of the man’s face and then striking him to the head with the metal coin dispenser causing a laceration of three centimetres to the top of his forehead that required three stitches and in all likelihood has ultimately led to a scar on this man’s face.

   b.The sentences imposed (13.1.1(1)(c) of Direction 65), specifically in relation to the sentences of imprisonment for the offences of assault on driver of passenger vehicle, assault occasioning bodily harm, aggravated assault with intention to rob and his nine separate aggravated burglary offences which each received sentences of between 6 and 15 months imprisonment.

   c.The applicant has a significant, and frequent, history of disregard for Australian law (in circumstances where, since the age of 16, the applicant has been charged by police for offenses committed in every year, despite spending significant amounts of time in incarceration) and his offences have increased in seriousness: 13.1.1(1)(d)and (e) of Direction 65.

   d.The serious nature of the applicant’s offending behaviour is further demonstrated in the sentencing remarks of [the Magistrate] who considered the “devastating impact” on the victim including being unable to drive a taxi and requiring ongoing psychological counselling.

   e.In sentencing, the Magistrate found that the applicant’s young age was a significant mitigating factor but that the only appropriate penalty was a term of imprisonment, without a suspended sentence.

9. In determining whether MCRL’s criminal conduct should be viewed as serious, the Tribunal notes the sentences imposed by the courts for his crimes.  The Tribunal notes, in particular, the transcript of proceedings before the Magistrate (G13 at 80) in relation to MCRL’s assault on a taxi driver.  These sentencing remarks demonstrate how serious His Honour viewed MCRL’s criminal conduct:

   HIS HONOUR:         Can you stand up, [MCRL], please. This assault against the taxi, driver is indeed an extremely serious offence. The maximum penalty is three years imprisonment and a fine of $36,000. This was a sustained and vicious attack involving a punch to the left side of this man's face and then striking him to the head with the coin dispenser causing a laceration of three centimetres to the top of his forehead that required three stitches and, in all likelihood, has ultimately led to a scar on this man's face.

   Photos depict blood spattered around the front of the car as a result of this assault and your offending has had a devastating impact on this man. He is unable to drive a taxi any further, lost his form of income. He has a wife and a three year old child. He is also studying. Has difficulty even driving now and he has had to go and see a psychologist. The psychologist has recommended that he go back to visit his family in his country of origin but he doesn't have the money to go. And he is studying at university and his performance in those studies has gone down.

   Taxi drivers regularly have to put up with drunken, violent, aggressive passengers and that's not something that should have to occur. [MCRL], there needs to be a sentence in respect to this matter that properly reflects the serious nature of this offending, the vicious assault against this taxi driver requiring medical treatment, stitches, the impact it has had on him. There needs to be a penalty that not only acts as a personal deterrent for you but a general deterrent for others, as a penalty that law-abiding and reasonable-minded members of this community would expect to flow from an offence like this and a penalty that provides some protection or confidence in taxi drivers that their interests will be properly considered in this court when it comes to violence upon them.

   In terms of mitigation, it's - probably the most significant issue is your young age …. And despite what the pre-sentence says, I do accept that ultimately, on reflecting about this matter, you are remorseful and that’s supported further by your plea of guilty. You were very intoxicated at the time of this offence, that’s no mitigation. One might have thought that that would result in you having a serious look at your alcohol consumption and perhaps seeking to abstain from alcohol but no, while you're on bail for this matter you come back to court for an obstruct public officer which also occurred after you had been drinking, getting involved in a police dealing with a friend of yours.

   I know that you are working and you seem to have some family support and that you have never served a term of imprisonment in an adult prison. But you do come before me with a record that is relevant. When one looks at the date of the offence against the taxi driver and considers how you were dealt with in Perth Children's Court with 15 months detention …., that does bring you within two years of the commission of this offence and therefore is relevant to consider. And that involved, among numerous other offences, an aggravated assault with the intent to rob.

   Now, your record is not an aggravating factor but it is relevant in terms of the course by you of ongoing violence towards others. And, in my view, the only appropriate penalty is a term of imprisonment in regard to this matter having regard to everything before me. And I am not persuaded, having regard to the very serious nature of this offending and everything else before me that that term should be suspended, having carefully considered that option ...

10. The Tribunal notes that in considering the nature of MCRL’s criminal offending, offences that are violent in nature are viewed seriously. 

11. The Tribunal notes submissions made on MCRL’s behalf that although MCRL’s crimes of violence are indeed serious, “the fact that he has spent a very short time in prison and his other (adult offences) only resulted in fines only indicates that his offending and the nature of these offences were at the lower end of the spectrum of seriousness”.  MCRL’s solicitors also contended that “the Australian community tolerates younger people making stupid mistakes”. 

12. The Tribunal accepts that MCRL committed many of his offences while young.  Youth is certainly a mitigating factor and the courts are very reluctant to send young people to jail.  However, MCRL was sentenced to a term of imprisonment and did indeed spend time in jail.  This says a great deal about the seriousness of his offending as no other penalty but one of immediate imprisonment was deemed appropriate. 

13. The Tribunal rejects any suggestion that MCRL’s crimes of violence can be deemed offences at the lower end of the spectrum of seriousness.  Many of his offences, but particularly his quite vicious attack on a taxi driver can be viewed objectively as violent and hence extremely serious.  The Magistrate referred to the assault as a “sustained and vicious attack”.  The sentence MCRL received and the comments made by His Honour reflect the seriousness of his offending. Dispositions involving incarceration are a last resort in the sentencing hierarchy and this weighs heavily against the revocation of the mandatory cancellation of MCRL’s visa.

14. MCRL has indicated that he has little memory of what occurred in relation to this attack as he was intoxicated.  Further, he stated he may have acted as he did because he thought the taxi driver was racist. Before the Tribunal, MCRL did, however, indicate that he was sorry for what had happened. 

15. The Tribunal accepts that MCRL feels remorse for his past conduct.  Despite this, however, the nature of MCRL’s violent offences evidence a degree of recklessness toward the well-being of the Australian community that cannot be excused or dismissed. The fact that he was intoxicated at the time his more violent offences were committed will arguably be of little comfort to those victimised by his conduct and who were psychologically and physically harmed by his actions.

16. The cumulative effect of MCRL’s criminal record is also relevant.  Some of MCRL’s offences, considered in isolation, would not be considered “serious”.  However, his offences are numerous, with MCRL having committed a significant number of offences over a very short period of time.  The cumulative effect of his offending raises significant concerns about the safety of the Australian community should the decision to cancel MCRL’s visa be revoked.  The frequency of his offending and the fact that there is an evident trend of increasing seriousness is also of concern.  His most recent, violent crimes are particularly serious and weigh heavily against revoking the decision to cancel his visa. 

    (b)      The risk to the Australian community should further offences be committed

17. Paragraph 13.1.2(1) of Direction No 65 sets out the principles and factors to which the Tribunal should have regard in assessing whether a non-citizen represents an unacceptable risk of harm to members of the Australian community. It provides:

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

    (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 risk that it may be repeated may be unacceptable.

    (2)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 available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

1. In relation to the risk to the Australian community should MCRL commit further offences or engage in other serious conduct, the Tribunal notes that in a Statement of Facts, Issues and Contentions dated 7 November 2016, MCRL’s solicitor contended:

   13.MCRL submits that should his visa be re-instated he poses no further risk to the Australian community and that the risk of recidivism is low.

   14.MCRL’s previous offending was completely related to alcohol abuse and being in the presence of friends he no longer associates with. It is therefore submitted that MCRL’s risk of recidivism is low if he stays clear of alcohol and his former associates. By his own words, MCRL has been away from alcohol by reason of his incarceration and feels that he has now had his ‘wake up call’.

   Supporting evidence:  Personal Statement of MCRL Pgs. 103-107 T-Docs

   Statement of Service Pg. 123 T-Docs

   Why there is a low risk to the Australian Community

   Evidence of Reform

   15.MCRL submits that he has shown signs of reform and rehabilitation and has taken positive steps to stay clean permanently. For example:

   a)    Future ambitions and goals and employment.

   MCRL has indicated that he wishes to return to work again or study an apprenticeship. This shows an ambition to improve his position in life and ‘get somewhere’ and is consistent with normal aspirations of the Australian community and further demonstrates a significant – and positive – pathway to rehabilitation. Moreover, his good work ethic and experience suggests that his prospects of gaining employment are strong.

   Supporting evidence:              Personal Statement of MCRL Pgs. 103-107 T-Docs

   b)    Having somewhere to go if released.

   MCRL submits that should his visa be reinstated, he has somewhere to go in the community, being his father’s house where he resided previously.

   Supporting evidence:        Signed statement of MCRL’s father Pg. 124 of T-Docs

   c)Behaviour in prison/immigration detention and staying clean.

   There is currently no evidence before the Tribunal that MCRL has a history of bad behaviour in prison or in immigration detention. The fact that MCRL was always released on parole on time suggests that his behaviour in prison was satisfactory. Owing to MCRL’s current, long period of incarceration (prison plus immigration detention) this is the first time that he has been in detention for any significant amount of time. As a result, MCRL appreciates the gravity of his offending and sees this experience as ‘wake up call’. We submit that MCRL’s admission of his past problems (particularly with alcohol) is a significant step in his rehabilitation.

   Supporting evidence:        Personal Statement of MCRL Pgs. 103-107 T-Docs

   d)    Completion of Rehabilitation Courses While in Prison

   MCRL has attempted to address his drinking problems while in prison. This is evidenced by his participation and completion of an alcoholics anonymous program in Acacia Prison. According to his participation certificate, MCRL has ‘Reflected genuine interest and progress in personal recovery’. He also attended and completed a two month Anger Management for Men course completed in …. Prison.

   Supporting evidence:       Alcoholics Anonymous Attendance & Participation Certificate Pg. 122 T Docs.

   Anger Management for Men Certificate Pg. 126 T Docs.
   Certificate of Participation – Career Development Workshop Pg. 120 T-Docs
   Life Skills and Career Development Workshop Pg. 120 T Docs plus attachment

   e)     Support Network Available to MCRL Outside Detention

   MCRL has an extensive support network available to him outside of detention. Importantly, this network has accepted MCRL’s offending and offered him ongoing options for reform. For example, it is open to him to return to his football team … and further, he has been invited and encouraged to attended spiritual counselling, bible and language studies at church based and community organisations ... The … football team, for example, has even offered to cover his transport and registration costs to allow him to return immediately.

   Supporting Evidence:      Pg. 125 T-Docs;

   Pg. 127 T-Docs;
   Pgs. 109-112 T-Docs;
   Pg. 108 of T-Docs;
   Pgs. 113-114 of T-Docs.

   …

   26.The risk to the Australian community is low because his successful rehabilitation means that he is unlikely to re-offend following his release. All supporting statements confirm that MCRL’s offending was directly related to binge drinking. His offending was not opportunistic nor pre-meditated. MCRL has now spent considerable time in incarceration, is remorseful and has addressed his alcoholism and abuse of alcohol by attending various courses in prison. MCRL has been upfront about his past, accepts responsibility for his crimes and has shown contrition.

   27.MCRL has a strong support network outside of detention being his family, community, church and football cub. There also appear to be strong prospects of him gaining immediate employment on his release with the [football] Club.

2. The Tribunal also notes that in a written statement dated 1 April 2015 (G18), MCRL writes:

   This time in an Adults prison has scared me, I have not found it to be beneficial for the life I want to live.  I will be staying away from any negative peers and will be starting a new life, one that I can support my family and fit into my community better.

   Prior to prison I was employed by … in … as a storeman….

   Once I am released from prison, I will be registering my employment skills with several employment agencies … where I believe I will find employment within a short time.

   I also have an opertunity [sic] to work with the president of my soccer club as a labouer [sic] although it is not 100% at this stage.  Being employed is a must for me as my future goals rely on me being employed.

   While in prison I have commenced D.A.T.S counselling with Holyake [sic] and have their full support to help me to remain alcohol free.  Also they have told me that we can work on my personal issues that I may have to prevent me from wanting to spend time with any negative peers.

   I have also been attending regular Alcohol Anonymous sessions and am on the waiting list for the COVAID (Control of Violence for Impulsive Drinkers) program.

   I have also set some goals for myself when I am released like getting my driver’s licence with the help of the licencing department, who have said to me that they would provide me a driving instructor and vehicle for training (8 free lessons).

   Another goal I have set is to start a [sic] electrical apprenticeship with … so that I could become a qualified electrician, which has been a dream of mine since a young age.

   My soccer club has also accepted me back to play and help coach the young kids, some who have just come off the streets.  I have played for … as a first team player and have their full support.

   I have a good support network in Australia who have offered me their full support to help me to continue to rehabilitate and change my life around.

   The threat of being deported is enough for me to want to change and become a pro-social member of the community, but not just because of deportation but being away from my whole family and sent to a country where I know no-one and have no support.

   With all of the above I am cofident [sic] that if given the chance to stay in this beatufil [sic] country.  I will give a lot back to the community and will abide by all Australian laws.

3. MCRL also wrote as follows when requesting that the decision to cancel his visa be revoked (G17 at 93):

   My immediate family live in Australia.  I have no-one to depend on if deported.  I have a good support network in Australia who have offered me their full support to help me not only complete parole but to continue to rehabilitate and change my life around.  The threat of being deported and being away from my family has scared me and I want to become a pro-social member of the community.  I will be taking this as a big wake up call.

4. In oral evidence before the Tribunal, MCRL again stressed that had been a victim of racism which left him with low self-esteem (resulting in heavy drinking).  He also explained that he had associated with a negative peer group and was often homeless.  This, he claims, lead to anti-social behaviour, resulting in his lengthy criminal record. He has further stated that he only blames himself for his actions.  He says he will stay away from negative peers and start a new life.

5. The evidence shows that MCRL has undertaken a number of rehabilitation programs, including alcohol rehabilitation programs.  These include:

   ·     attendance at 12 Alcoholics Anonymous Prison meetings (G21);

   ·     attendance at 8 sessions on Anger Management for Men (G21); and

   ·     participation in the Outcare Life Skills Program (G19).

6. MCRL also signed a Drug and Alcohol through Care Service Participation with Holyoake (G19).

7. An immigration report also indicates that MCRL was well behaved in prison and he has not been involved in any adverse incidents in immigration detention.

8. Numerous letters of support have been written for MCRL attesting to his good character, his rehabilitation efforts to date and his prospects for a better future in Australia. 

9. Relevantly, the Tribunal notes a letter dated 18 February 2015 from a youth services worker (G19 at 113), which provides as follows:

   [MCRL] came in contact with our service as a young adolescent …. At that time he attended our service on a regular basis. This young man always presented with great mannerism, pleasant personality and was and was never considered to be a difficult young person to work with or have around.

   A couple of years into his teenage years [MCRL] did experience some juvenile offending, however he was always willing to discuss his issues and look into options available, which would enable him to make a positive change in his life. Once [MCRL] turned 18 and was considered an adult, he viewed this as a new chance and life cycle. [MCRL] started off well by trying to turn his life around, [MCRL] has been employed ever since and also has removed himself from the area and peers who might affect this change and has tried to have a fresh start.

   Even though [MCRL] did not continue to attend our service or work with me on a regular basis, he always managed to keep in touch every couple of months. [MCRL] would either stop by the centre or make a phone call to keep me up to date of what is happening for him or to seek support.

   Recently, [MCRL] advised me of an unfortunate circumstance … involving a taxi driver. [MCRL] did explain that he was extremely intoxicated during this occurrence, which does not justify his actions but does clarify this act which is out of character. I was extremely surprised to hear this as [MCRL] has never displayed violent or aggressive behaviour. As mentioned above, [MCRL] always came across as a polite and well behaved young man.

   After knowing [MCRL] for more than seven years, I believe that the incident which occurred has hindered [MCRL's] potential due to the contributing factors of the environment he was in and the level of intoxication he was under. With the correct support, which can be arranged for a young man, [MCRL] can be a respectable citizen of Australia and a productive member of his community who can stay out of prison and lead a functional and fulfilling life.

   The [youth centre] has the capacity to provide [MCRL] with a dedicated case worker as part of a multi-faceted diversionary and community reintegration service designed to meet the needs of highly at risk young people and motivate them to enact positive change. The intertwining components of sessional information delivery, mentoring and intensive case management creates a viable shield to guide young people down a positive pathway, reduce their negative impact on society and decrease the likelihood of reoffending behaviours. The support [MCRL] can receive from the case worker includes, but is not limited to: assistance in re-engaging back into Employment, Education or Training, informal counselling and referral to specialist agencies.

10. MCRL’s youth worker also gave evidence before the Tribunal.  Her evidence raises concerns about MCRL’s credibility as a witness and the value of his rehabilitation efforts to date and in the future.

11. MCRL’s youth worker struck the Tribunal as professional, entirely honest and well intentioned. In her capacity as a youth worker she has had more contact than any other social, community, youth support or rehabilitation counsellor in relation to MCRL – meeting with him frequently over a very lengthy period (7 years).  One would expect in a relationship of this sort for there to be an honest exchange of information between MCRL and his youth worker. Unfortunately, this does not appear to have been the case. MCRL’s youth worker was visibly surprised when advised of the full extent of MCRL’s criminal conduct.  She also denied ever having been told by MCRL that he had long periods of homelessness which required him to live on the streets.  She explained that if she had been told this, she certainly would have remembered it and most certainly would have done something to address it.  She also indicated that MCRL had never discussed his use of rap music and its negative effects on him or his thoughts that going to prison would either be “cool” or “good” because it would give him food and shelter. 

12. MCRL’s mother also gave evidence (discussed further below) and again had no apparent knowledge that her son had been homeless.  On the contrary, she advised that MCRL had lived briefly in the garage of a family friend – not homeless on the streets, as stated by her son. 

13. This evidence raises concerns about the reliability of MCRL’s evidence before the Tribunal.  The Tribunal questions his truthfulness and finds him not to be entirely credible or honest.

14. MCRL’s solicitor suggested that MCRL may not have disclosed any of this information to his youth worker and/or his mother because he was embarrassed.  The Tribunal has no reason to believe this to be the case.  MCRL struck the Tribunal as blunt and not someone who shies away from saying it as it is.  However, even if this were the case, this also raises concerns about the effectiveness of any educational or rehabilitation programs already undertaken or any future programs if MCRL has been, or is, either unwilling or unable to fully and frankly discuss his past, his alcohol and anger issues and the reasons for these issues. Effective rehabilitation requires truthfulness and transparency.  On the evidence, MCRL appears incapable of either. 

15. MCRL also provided a range of supporting letters, including letters from:

    ·     the coach of his soccer club and a number of supporters from the club (undated) (G19 at 109);

    ·     various letters of support dated 28 March 2015 (G20 at 121);

    ·     an Ethiopian community group (Dated 10 November 2015 (G22 at 127)); and

    ·     a letter of support from his priest (undated) (G22 at 125).

16. The Tribunal has reviewed all of the above and notes that all speak favourably of MCRL’s character and the support they are willing to provide him.

17. Further, a young adults’ pastor writes (undated) (G19 at 108):

    In my working with [MCRL], I found him to be incredibly open to changing negative behaviours and working hard to attain a career. Over the duration of his schooling … [MCRL] made a number of positive changes, and gained employment. I believe he remained in that place of employment for a number of years.

    After he left … we stayed in contact, with [MCRL] attending a few church services throughout the years. Since I have known [MCRL] I have always seen the potential within him, and would like to finally see him realize that and live in the reality of it.

    I humbly submit this letter of support for [MCRL] in his upcoming application for parole. I have visited him in Prison and spoken at length about his crime. He has taken responsibility for this, and has shown remorse at his actions. He has also identified the use of Alcohol has been a common link in offending (in youth also).

    I would be willing to support him in any ongoing rehabilitation upon his release. Our church also provides a number of personal recovery courses, of which we would be willing to pay for [MCRL] to undertake.

    I would also be willing to commit to a regular mentoring relationship with [MCRL], from a weekly / fortnightly meeting to journey through some of the issues he still needs to deal with, and help him stay accountable to any parole conditions.

18. MCRL also received a letter of support (20 February 2015 (G19 at 111)) from the senior member of his soccer club, who wrote:

    I am writing to you about a good friend of mine [MCRL]. When I heard the news that [MCRL] was in Jail I didn't believe it was true, I was stunned and organized a time to visit [MCRL]. Before I discuss the discussions we had during that visit I would like to explain to you a little about [MCRL’s] last two years.

    [MCRL] joined the …  Soccer club in 20 __. MCRL was a very young, quiet and shy individual who showed great love for the sport. He was a standout when it came to the effort and concentration he showed during training sessions and his potential was recognized. [MCRL] very quickly become one of the favourites at the club thanks to his Reliability, self-motivation to improve, team work skills, willingness to support for others around him and someone who put the club and others first. I took [MCRL] under my wing to be his mentor on and off the field as I believed [MCRL] was someone of special quality inside his heart. [MCRL] attended every training session over the two years and often caught buses to training or rode in the winter weather. On game days I would pick him up and drop him of with great conversations about the game as well as how [MCRL] could continue to develop himself and deal with any issues he may have had. [MCRL] has never had any warnings or issues around discipline on or off the field …

    ...

    [MCRL’s] drive for success and love for the sport seen him earn a spot in the First team in which his team mates voted him as the most improved player. … [MCRL] was a vital team member of a very successful team who received promotion … and [MCRL] was recognized for his team contribution and dedication.

    I visited [MCRL] this week and looking into his eyes I could feel his pain. He commented on how he made the biggest mistake of his life and was so ashamed he didn't even tell his parents or friends until it was too late and helped contribute to him being in this situation. [MCRL] commented on how he felt every day felt like a year and how he is trying to attend classes and work to show he is reliable and ready to resume his life on the outside as soon as possible. As I spoke to [MCRL] about our common love of football and how the club is currently in preseason training [MCRL] explained how there was a slim chance of him re-joining the club … the week before the season starts and how he was giving it his full dedication to prove he is ready to resume life outside of prison and never return. I discussed with [MCRL] that I would let the club and players know about his current situation and we are here to support [MCRL].

    …

    I will commit to supporting [MCRL] in every way possible to help him be released as soon as possible and then once he is out I commit to ensuring he never returns. Some of the areas I will help involve:

    Ensuring [MCRL] has a job with an income to support himself.  The club and its … players committing to supporting [MCRL] in what-ever way necessary; guiding [MCRL] to continue to develop himself on and off the field to ensure he continues to improve and be successful; I will mentor [MCRL] and take him under my wing.

    I believe [MCRL] has learnt a valuable lesson in which he never wants to return to the current situation he is in. I would like to support [MCRL] in every way possible to help him exit the Prison as soon as possible and start his life with a new and positive focus on self-development. As a coach of soccer … I have seen how my players from all walks of life benefit from being in a club with such a strong culture of team work, support, trust, honesty, friendships, hard work, loyalty and more help develop individual to better themselves on and off the field.

    I believe if [MCRL] could re-join us in time for the coming season … it would give him a drive for success again on and off the field as well as give the … members of the soccer club a chance to all work together to support [MCRL] in his new life.

1. MCRL’s family also provided letters of support stating that his problems are due to his abuse of alcohol which led to aggression and loss of self-control.  They also indicated that they will support him in any ongoing rehabilitation.

2. MCRL’s father writes (18 February 2015) (G19 at 115):

   I … am writing to express and reaffirm my unconditional support of my son once he is released from the custody.

   MCRL is usually very quiet and reserved, hardworking young man who enjoys his sport (soccer) and actively participates in social outings with his friends. Unfortunately, he chooses to associate and mix the wrong friends who are often involved in mischievous activities.

   During these very turbulent, unpleasant times, I have tried all I could by telling him and to step back and look deep in himself so that he will move on in the right direction of his young life. However, he became a frequent alcohol abuser which led and made him aggressive and loose his self-control with strange people and very rarely at home. Today, due to his serious alcohol problem, he is now the stage where he shouldn't be.

   During my frequent visit while he is in custody, MCRL shown me his deep feeling that he is so remorseful, deeply regretted and ashamed of his past wrongdoings and he is willing and determined to change his life around in a positive and constructive way.

   I have explained and reiterated to him that he cannot keep doing what his doing destroying his life and others. I am also convinced that he meant it and I have reaffirmed him that I will be with him in his effort and commitment to support and help him in the process of his rehabilitation. I will support him financially, emotionally and spiritually.

   Last but not least, l am confident that MCRL will change his life around and realize his dream of being a qualified electrician, be a role model to his siblings and to others in his community.

   As all fathers do dream, wish and want the best for their children, I will do whatever it takes to do for him, in his effort to turn his life around, realize and reach his potential if he would be given one more last chance. [sic]

3. MCRL’s father did not appear as a witness and makes no mention of any period of homelessness in relation to his son.  Nor does he suggest that his relationship with his son was as dysfunctional as that suggested by his son before the Tribunal.

4. MCRL’s mother writes (undated) (G21 at 124):

   I have a big concern relating to my son’s visa cancellation and possible deportation to New Zealand, a country where there is no immediate nor extended family left as all of us have moved to Western Australia. Sending [MCRL] back to New Zealand will be counterproductive and inhuman as all who love and care for him, and be involved in his rehabilitation, are in Perth.

   I can assure you that [MCRL] is of good character and the offenses for which he has paid a great deal for were result of binge drinking which could be attributed to growing pains and peer pressure. In prison, he has had time to reflect upon his behaviour and has accomplished results in acquiring a position in two football teams as well as taking training in forklift driving and materials handling, which will have a positive impact in obtaining employment and providing him a social base for belonging and staying away from previous experiences that impacted upon his young life.

   I will personally be responsible in supporting and guiding [MCRL] in both his social and work life. As I am an active member of the parish council …, [MCRL] will have access to spiritual counselling as well as other youth centred activities such as the youth choir and the football club.

   Please reconsider you [sic] decision of cancelling [MCRL’s] visa as it will impact adversely on my son, as well as myself, all family members … as well as personal and family friends. Give MCRL a chance to rehabilitate and become a law abiding and productive citizen, a son and a brother who will make his parents and his siblings proud.

5. The Tribunal also heard oral evidence from MCRL’s mother.  She cares deeply about her son and was visibly distressed by what has happened.  She will clearly be devastated if her son is returned to New Zealand and advised the Tribunal that she simply does not have the funds to visit him should that occur.  She further advised that her son would live with her if he was released from detention and assured the Tribunal that although he was a troubled youth, he has learnt his lesson and is now a good man.

6. Like the Delegate before it, in considering whether MCRL represents an unacceptable risk of harm to the Australian community, the Tribunal has had 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. It is noted that some conduct and the harm that would be caused if it were to be repeated is so serious that any risk that it is repeated may be unacceptable.  Further, in making an assessment regarding the risk to the Australian community, the Tribunal has had regard to, cumulatively:

   a)    the nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and

   b)    the likelihood of further criminal or other serious conduct, taking into account information and evidence on the risk of the person re-offending.

7. The evidence before the Tribunal shows that MCRL has an extensive criminal record for someone so young.  He moved to Australia in 2007 and was first convicted of a criminal offence in 2009.  He has been found guilty of offences in almost every year since.  The Tribunal notes the increasing seriousness of his offending since his arrival in Australia, his flagrant disregard for the law and his continued reoffending – including for committing the same offences repeatedly. 

8. The evidence shows that MCRL has the support of his family and friends and that these dedicated and good people will seek to assist him if he is released from detention. 

9. The evidence also shows that MCRL has now participated in educational and alcohol rehabilitation programs and he believes he has tackled his clear problem with alcohol. 

10. MCRL has expressed a desire to remain in Australia.  He says he has learned his lesson and wants to contribute to Australian society.  He is adamant that he will not continue to drink and looks forward to finding a trade that will allow him to be gainfully employed. 

11. Unfortunately, for the reasons outlined above, the Tribunal has reason to doubt MCRL’s rehabilitation prospects and his commitment to working with those who might assist him.  MCRL did not strike the Tribunal as entirely truthful and the Tribunal has concerns about his commitment to effective rehabilitation and good behaviour.  On the evidence before the Tribunal, the Tribunal has concerns about MCRL’s ability to engage fully with rehabilitation service providers.  The evidence provided by MCRL’s youth worker is particularly concerning as it reveals a young man who is either dishonest or incapable of an open relationship of the sort needed for rehabilitation to be effective.

12. Further, while MCRL’s family and friends are undoubtedly well intentioned, generous and kind people, it is noted that throughout the entirety of his brief time in Australia, MCRL was supported by family, his local church, youth groups and his soccer club.  Unfortunately, these support mechanisms did not alter his behaviour then and the Tribunal is concerned that their ongoing support will not stop MCRL from engaging in further criminal behaviour in Australia if he is released from detention.  Given his behaviour to date and the Tribunal’s concerns about his ability to effectively rehabilitate, this raises concerns about the extent to which he poses an unacceptable risk to the Australian community.

13. On the evidence, MCRL’s prospects of avoiding further offending are highly dependent on overcoming his alcohol abuse issues and negative peer associations and his commitment to (and ability to engage effectively with) ongoing rehabilitation programs.  On the evidence, the Tribunal finds that there is some risk that MCRL will engage in harmful behaviour if released into the community, despite evident community and family support.  This poses an unacceptable risk to the Australian community as there is a risk that he will then reoffend.  Given the nature of his crimes to date (some of which were violent), this is an unacceptable risk to the community and weighs heavily against any revocation of the decision to revoke MCRL’s visa. 

    (ii)       Best interests of minor children in Australia affected by the decision

14. The second primary consideration listed in Direction No 65 is the best interests of minor children in Australia affected by the decision to cancel a visa.

15. MCRL did not claim that any minor children would be adversely affected by the decision not to revoke the cancelation of his visa.  The evidence shows that to be the case.  This issue is thus not relevant to these proceedings and is not addressed here.

    (iii)      Expectations of the Australian community

16. The third primary consideration listed in Direction No 65 is the expectations of the Australian Community.  In this regard, paragraph 13.3(1) of Direction No 65 states:

    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.

17. In relation to this issue, solicitors for counsel for MCRL contended as follows:

    17.MCRL’s past criminal behaviour was serious and involved violations of Australian law. However, he has paid his debt to society through his prison sentences and fines. Based on the mitigating factors listed above being MCRL’s age, good prospects of reform and rehabilitation, staying clean and away from alcohol, future goals and ambitions, family ties (discussed below), we submit that the Australian community would afford a person in MCRL’s case a second chance and, further, that MCRL has proven that he can be trusted and released back into the Australian community.

18. Counsel for the Minister in turn contended as follows:

    22.The respondent contends that given the applicant’s extensive criminal history, and the most recent serious offence regarding an unprovoked assault on a taxi driver during the performance of his duties, the Australian community would expect that the applicant should not hold a visa. In Wills and Minister for Immigration and Border Protection [2016] AATA 794 at [45], Deputy President McDermott noted that he considered that “the Australian community would expect that someone who has committed the offence of assault occasioning bodily harm in circumstances where that person was unprovoked would have their visa application refused” (emphasis added).

19. In analysing this third and primary consideration, the Tribunal again refers to the stated principles in paragraph 6.3 of Direction No 65 and, in particular, the principles that:

    ·the Australian community expects the Australian Government to cancel the visas of non-citizens who commit serious crimes; and

    ·non-citizens who commit serious crimes should generally expect to forfeit the privilege of staying in Australia.

20. MCRL’s criminal record is extensive and commenced shortly after he arrived in Australia.  Importantly, he engaged in a quite serious crime of violence against an innocent member of the community (in this case a taxi driver who was simply doing his job).  MCRL says this resulted in part from alcohol abuse.  Thus far, MCRL has shown no ability to live alcohol free in the community and the Tribunal has concerns that this pattern of behaviour will continue if he is released from detention.  MCRL has been given many opportunities to live a good life free of alcohol and crime but has failed to do so.  This is despite the love and support of family, friends and multiple support networks. 

21. In these circumstances, the Tribunal considers that the expectations of the Australian community are that a non-citizen, such as MCRL, should expect to lose his visa and forfeit the privilege of remaining in Australia.  

    (iv)     Other considerations

22. Paragraph 14(1) of Direction No 65 provides:

    14.      Other considerations - revocation requests

    (1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

    (a)       International non-refoulement obligations;

    (b)       Strength, nature and duration of ties;

    (c)       Impact on Australian business interests;

    (d)       Impact on victims;

    (e)       Extent of impediments if removed.

23. It is agreed between the parties that only paragraphs (b), (d) and (e) of paragraph 14(1) of Direction No 65 are relevant to MCRL’s matter.

    Strength, nature and duration of ties

24. Paragraph 14.2(1) of Direction No 65 requires the Tribunal to consider MCRL’s ties to Australia as follows:

    14.2     Strength, nature and duration of ties

    (1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:

    (a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

    i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and

    ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community.

    (b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation 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).

25. In relation to this issue, MCRL’s solicitors contended as follows:

    19.It is submitted that considerable weight be given to MCRL’s ties to Australia.

    20.MCRL has …. lived in Australia for a significant part of his life and all of his adult life. He sees his future in Australia.

    21.All of MCRL’s immediate family live in Australia.

    Supporting evidence:  Personal Statement of MCRL Pgs. 103-107 T-Docs

    Personal Details Form Pg. 97 T-Docs

26. Counsel for the Minister, in turn, contended as follows:

    26.The applicant has demonstrated that he has ties to Australia, including family ties … It is contended that less weight should be given to this factor given the applicant commenced offending within two years of arriving in Australia, commencing as a juvenile offender. It is also contended that this factor should be given less weight on the basis that the applicant has spent very little time positively contributing to the Australian community.

27. There is evidence before the Tribunal that MCRL does have ties to Australia.  He has lived here for a decade, having arrived as a teenager.  Most of his family is resident in Perth and he is particularly close to his mother (who is a permanent resident). He also has a community of friends in Perth. 

28. MCRL has spent some periods of his approximately 10 years in Perth contributing to the community by attending school up to year 10 and in sporadic employment. The Tribunal thus finds that he has been making some contribution to the community. 

29. The Tribunal has, however, given less weight to these considerations as MCRL started to offend soon after arriving in Australia. Disturbingly, his first court appearance was only two years after he moved to Perth.

30. In these circumstances, while the Tribunal finds that MCRL does have ties to the Australian community, the Tribunal is not convinced on the balance that the nature and strength of his ties with Australia outweigh the primary considerations referred to above.

    Impact on Victims

31. Paragraph 14.5(1) of Direction No 65 requires the Tribunal to consider the impact on victims if MCRL’s visa is not cancelled as follows:

    14.4     Impact on Victims

    (1)Impact of a decision not to revoke 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 revocation has been afforded procedural fairness.   

32. In relation to this issue, solicitors for MCRL contended that:

    23.Given the good prospects of rehabilitation and low likelihood of recidivism, we submit that any continuing impact of the victims is likely to be minimal.

33. Counsel for the Minister in turn contend:

    27.The remarks of the sentencing Magistrate suggest that the assault on the taxi driver caused a devastating impact on the victim. In particular, the victim is now unable to drive a car (let alone a taxi), has lost his source of income that supports his wife and young child and requires psychological intervention. In addition, it is noted that the victim’s university studies have also been negatively affected. It is contended that this factor weighs against the revocation of the cancellation of the visa.

34. Although it is clear that MCRL’s cowardly attack on a taxi driver was particularly devastating for this man, there is no evidence before the Tribunal that there would be any continuing impact on him or any other victims of MCRL’s offending or their families if MCRL’s visa is not cancelled. 

35. In the circumstances this then weighs in favour of a decision to revoke the decision to cancel MCRL’s visa. 

    Extent of impediments if removed

36. Paragraph 14.5(1) of Direction No 65 requires the Tribunal to consider the extent of any impediments if MCRL is removed from Australia as follows:

    14.5     Extent of impediments if removed

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

    (a)       The non-citizen’s age and health

    (b)       Whether there are substantial language or cultural barriers; and

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

37. In relation to this issue, solicitors for MCRL contended as follows:

    24.MCRL submits that removal to New Zealand would cause him and his Australian family significant hardship. Despite being English speaking, he would face considerable challenges establishing himself in New Zealand. The reasons being:

    a)Lack of support network. As discussed above, MCRL has no immediate family in New Zealand.

    b)Hardship caused to his immediate family in Australia. MCRL’s family in Australia lack the financial capacity to visit him in New Zealand. Moreover, there are practically no prospect [sic] of them being able to visit MCRL in New Zealand for financial reasons. The removal of MCRL would also cause immense emotional stress, sadness and separation anxiety to his remaining family here.

    c)Homelessness and destitution. MCRL contends that any return to New Zealand would mean arriving homeless and penniless. Although being entitled to some unemployment benefits, these will take some [sic] to receive and, in the interim, he will have nowhere to live or get support from. Moreover, MCRL was last in New Zealand as a teenager. All of his contacts, employment experience and general prospects of employment are closely and intrinsically linked to the life he built for himself in Australia.

    28.MCRL moved to Australia at age … and has been in Australia all of his adult life. All of his immediate family live in Australia. His family and social ties are clearly strong to this country. Should his visa not be reinstated, MCRL has no support network nor family to help him in New Zealand.

    29.It is submitted that MCRL’s removal will cause significant hardship and destitution to him because he has no support network and low employment prospects in New Zealand. Significant hardship would be caused to his family here in Australia because they do not have the means to visit him in New Zealand.

1. Counsel for the Minister in turn contended as follows:

   28.It is contended that there are no impediments to the applicant being removed to New Zealand, in circumstances where the language and culture in New Zealand is similar to that in Australia, the applicant undertook much of his schooling in New Zealand and the applicant would have access to basic social, medical and economic support in New Zealand. It is contended that this evidence supports the contention that there are no impediments to removal.

2. In relation to the requirements of paragraph 14.5(1) of Direction No 65, the Tribunal is not convinced that there are significant impediments to MCRL being removed to New Zealand in circumstances where the language and culture in that country are similar to that of Australia.  MCRL is a New Zealand citizen and will have access to basic social, medical and economic support in that country.  Although it is clear that life will be challenging for him given that he has not lived in New Zealand sine he was a teenager and has no family or friends in New Zealand, the extent of the impediments that he will face if removed does not weigh heavily in favour of revocation of the cancellation of his visa.  Importantly, the extent of any impediments that do exist does not outweigh the primary considerations discussed above.

3. This consideration does not favour revoking the decision to cancel MCRL’s visa.

   CONCLUSION

4. Having received a sentence of a term of imprisonment in excess of 12 months, MCRL has a “substantial criminal record” and does not, as a result, pass the character test in s 501(6) of the Migration Act. Further, as MCRL was serving a sentence of imprisonment on a full-time basis in a custodial institution, he was liable for mandatory cancellation of his visa pursuant to s 501(3A) of the Migration Act.

5. In determining whether there is any reason why the decision to cancel MCRL’s visa should be revoked, the Tribunal has attached significant weight to the fact that MCRL has an extensive criminal record – both as a juvenile offender and as an adult.  Some of these offenses are violent in nature. 

6. The Tribunal has taken account of the following factors detailed in paragraph 13.1.1 of Direction 65:

   a)violent crimes are viewed seriously – noting that MCRL was convicted of a particularly violent attack on a taxi driver that left him wounded and traumatised; and

   b)the sentence imposed by the courts for crimes – noting that in MCRL’s case a custodial sentence was ordered despite his young age.

7. In these circumstances, MCRL should, as per paragraph 6.1 of Direction 65, expect to be denied the privilege of staying in Australia.

8. The Tribunal also finds that there remains an unacceptable risk that MCRL may engage in further criminal conduct if he remains in Australia and that the Australian community will, as a consequence, be at risk.  In making this assessment the Tribunal has considered the nature of the harm to individuals or the Australian community should MCRL engage in further criminal or other serious conduct and the likelihood of further criminal or other serious conduct, taking into account information and evidence on the risk of MCRL re-offending.  MCRL’s prospects of avoiding further offending are highly dependent on overcoming his alcohol abuse issues and negative peer associations and his commitment to (and ability to engage effectively with) ongoing rehabilitation programs. On the evidence, the Tribunal finds that there is some risk that that MCRL will engage in self-harming harmful behaviour if released into the community.  This poses an unacceptable risk to the Australian community as there is a risk that he will then reoffend. Given the nature of his crimes to date, this is an unacceptable risk to the community and weighs heavily against any revocation of the decision to revoke MCRL’s visa. 

9. Given the nature of the crimes committed and the prospect of future offending, the Tribunal is also of the view that the Australian community would expect that MCRL’s visa would remain cancelled.

10. There are considerations that weigh in favour of revocation.  These include his ties to the Australian community.  There is also no evidence that there will be any negative impact on the victims of MCRL’s crimes or their families if MCRL is allowed to stay in Australia.  The Tribunal also accepts that MCRL will face some difficulties if he is returned to New Zealand. 

11. The Tribunal finds, however, that these countervailing considerations do not, on balance, outweigh the primary considerations referred to above, which should generally be given more weight. 

12. Overall, the Tribunal finds that having regard to all of the primary considerations and other relevant considerations required to be taken into account by the Tribunal under Direction No 65 the correct and preferable decision is to refuse to revoke the cancellation of MCRL’s visa. 

    DECISION

13. For the reasons outlined above, the decision under review is affirmed. 

I certify that the preceding 119 (one hundred and nineteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall.

....................[sgd]....................................

Administrative Assistant

Dated: 19 April 2017

Date of hearing:	20 March 2017
Representative of the Applicant:	Mr M Udall
Solicitors for the Applicant:	Martin Udall & Associates
Representative of the Respondent:	Mr A Burgess
Solicitors for the Respondent:	Sparke Helmore