Miller and Minister for Immigration and Border Protection (Migration)

[2017] AATA 256

Miller and Minister for Immigration and Border Protection (Migration) [2017] AATA 256 (28 February 2017)

Division:GENERAL DIVISION

File Number:           2016/2245

Re:Hayden Miller

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Deputy President Dr P McDermott RFD

Date:28 February 2017

Place:Brisbane

I affirm the decision under review.

........................................................................

Deputy President Dr P McDermott RFD

CATCHWORDS

MIGRATION – cancellation of visa on character grounds – applicant does not pass the character test – sentenced to a term imprisonment totalling more than 12 months – the protection of the Australian community from criminal or other serious conduct relevant – expectations of Australian community not met – no other reason why the original decision should be revoked - decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth) ss 499, 500, 501, 501CA

SECONDARY MATERIALS

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

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

28 February 2017

1. This application is for a review of a decision of a delegate of the Minister for Immigration and Border Protection (“the respondent”) dated 31 March 2016 to not revoke the cancellation of the Class TY Subclass 444 Special Category (Temporary) visa of Hayden Miller (“the applicant”) pursuant to section 501CA of the Migration Act 1958 (Cth) (“the Act”).

   BACKGROUND

2. The applicant was born in New Zealand in 1987. He first arrived in Australia on 2 December 2000 and has lived in Australia since that time on a Class TY Subclass 444 Special Category (Temporary) visa (“visa”).

3. The applicant has committed numerous offences over a period of years, commencing in 2001 when he was a minor. The applicant has been sentenced to imprisonment for multiple offences, including for 10 months in June 2005 and for 12 months in October 2010. The applicant was convicted of trafficking in dangerous drugs in March 2014 and sentenced to four years and six months imprisonment. He was also convicted in March 2014 of a number of offences committed while on bail for the trafficking charge, including burglary, fraud, unlawful use of a motor vehicle, receiving tainted property, breach of bail and stealing for which he received prison sentences.

4. On 7 January 2015, a delegate of the respondent cancelled the applicant’s visa pursuant to section 501(3A) of the Act as the respondent was satisfied the applicant did not pass the character test due to a substantial criminal record.

5. On 5 February 2015, the applicant requested that the cancellation decision be revoked. On 31 March 2016 a delegate of the respondent made a decision to not revoke the cancellation decision made under section 501(3A) of the Act.

   JURISDICTION  

6. The Tribunal has jurisdiction to review the decision of the delegate of the respondent dated 31 March 2016 under s 500(1)(ba) of the Act.

   CHARACTER TEST

   Substantial criminal record

7. Section 501(6)(a) of the Act provides that a person does not pass the character test if he or she has a substantial criminal record. Section 501(7)(c) of the Act provides that a person has a “substantial criminal record” if he or she has been sentenced to a term of imprisonment for a period of 12 months or more.

8. As the applicant was sentenced to a period of imprisonment of 12 months or more, he has a substantial criminal record as defined under s 501(7)(c) of the Act and does not pass the character test.

   MINISTERIAL DIRECTION

9. Section 499 of the Act empowers the respondent to give written directions about the performance of functions and the exercise of powers under the Act. The effect of this section is that the Tribunal is required to comply with Ministerial Direction No 65 (Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA) (“the Direction”). The Direction commenced operation on 22 December 2014 and remains in force.

10. The Preamble provides that the objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.[1] An objective of the Direction is to provide a framework within which decision-makers approach their decision of whether to revoke a mandatory cancellation under s 501CA of the Act.[2]

    [1] 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 at [6.1(1)].

    [2] Ibid at [6.1(4)].

11. The Preamble specifies seven principles which provide a framework within which decision-makers should approach their specific task:[3]

    (1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    (3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

    (5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    (6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

    (7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

    [3] Ibid at [6.3].

12. Paragraph 8 of the Direction states:

    …

    (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 a visa.

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

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

13. In deciding whether to revoke the mandatory cancellation of the applicant’s visa, paragraph 13(2) of the Direction provides that the following are primary considerations:

    a) Protection of the Australian community from criminal or other serious conduct;

    b) The best interests of minor children in Australia;

    c) Expectations of the Australian community.

14. I will consider each of the primary considerations in turn.

    Primary consideration A – The protection of the Australian community from criminal or other serious conduct

15. Paragraph 13.1(1) of the Direction states:

    When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non‑citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

16. Paragraph 13.1(2) of the Direction states that decision-makers should also give consideration to:

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

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

    Nature and seriousness of conduct

17. The applicant has an extensive history of offending.

    Drug offences

18. The applicant was found guilty of trafficking in dangerous drugs in March 2014 for which he was sentenced to imprisonment for a period of four years and six months. In sentencing, Justice Mullins stated he was a “drug addicted person”, that the offence was aggravated by the fact the applicant had traded in pseudoephedrine-based medication to obtain methylamphetamine and the fact he would also accept this medication from customers.[4]

    [4] Exhibit A, G-Docs, G10 at p. 78

19. The applicant was found guilty of failure to properly dispose of needle and syringe in 2008 and possessing dangerous drugs in September 2003 and April 2003.

    Dishonest conduct and property offences

20. The applicant was found guilty in March 2014 for over 30 offences of burglary, theft, receiving tainted property and stealing. The applicant committed these offences over a number of hours in 2013 while he was released in the community on bail awaiting trial for the drug trafficking charges. The court brief outlines how the applicant and his co‑offenders entered a residential house, stole car keys and a wallet containing bank cards and unlawfully used the car to make journeys to a number of shops to make purchases with the stolen bank cards over a number of hours.[5] The car contained a baby seat, which was stolen, and the victim outlined that the car was damaged to a point where it could not be driven without substantial repairs.

    [5] Exhibit B Annexure at p. 8-69

21. The applicant has a number of convictions for dishonest conduct which commenced in 2001; he was convicted numerous times between 2002 and 2014 for burglary, stealing, receiving stolen goods and break and enter. He was sentenced to imprisonment for 10 months in 2005, at the age of 19 years, and 12 months in 2010 for offences of this nature.[6]

    Vehicle offences

    [6] Exhibit A, G-Docs, G11 at p. 80-90

22. The applicant was found guilty of unlawful entry and use of motor vehicles on at least 10 separate occasions between 2002 and 2014.[7] The applicant committed nine out of ten of these offences in conjunction with the commission of other offences including burglary, stealing, possessing tainted property, entering a dwelling with intent and receiving stolen property.

    Breaches

    [7] Ibid

23. The applicant has multiple convictions for breaches of Bail Granted conditions, probation orders, suspended sentences and intensive correction orders which span from 2004 to 2014.[8]

    Assessment

    [8] Ibid

24. Paragraph 13.1.1(1) of the Direction contains a number of relevant considerations in assessing the nature and seriousness of the applicant’s conduct including the sentence imposed, the frequency of the offending, whether there is a trend of increasing seriousness, the cumulative effect of repeated offending and whether the applicant has reoffended since receiving a formal warning about migration status.

25. The applicant has a substantial criminal history and has incurred a number of prison sentences over the past 10 years. The most serious of these offences resulted in a conviction in March 2014 for trafficking in dangerous drugs.

26. The applicant asserted in oral evidence that the circumstances of the offence were such that he was ‘dealing’ a small amount to friends. However, this does not diminish the seriousness of the offence, and the applicant was penalised at the higher end of the scale due to the aggravated circumstances of the offence.[9]

    [9] Exhibit A, G-Docs, G10 at p. 78

27. The Minister submits that the applicant has been found guilty of a criminal offence at least once every year over a 12 year period, with the offences becoming more serious over time. The applicant’s criminal record[10] indicates the increasing severity and disregard for the property and safety of other individuals in the community.

    [10] Exhibit A, G-Docs, G11 at p. 80-90

28. The applicant has been given a number of warnings by the Department of Immigration and Border Protection (the “department”) and he was sent a ‘section 501 counselling’ letter on 23 August 2007 and a formal warning letter with respect to his character on 8 February 2012.[11] However, the applicant was found guilty of the most serious of his offences after these warnings were given to him.

    [11] Exhibit A, G-Docs, G12 at p. 91 and G13 at p. 93

    Risk to Australian Community

29. Paragraph 13.1.2 of the Direction concerns “The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct”. In considering the risk to the Australian community, paragraph 13.1.2(2) states 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; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

    Nature of harm if further criminal conduct

30. The circulation of dangerous drugs has the potential to cause grave harm to members of the community. The trafficking of dangerous drugs has the potential to cause harm to individuals, in terms of health and wellbeing, to diminish the safety of communities generally and to affect especially vulnerable members of society.

31. The commission of other property and vehicle related offences would potentially result in major financial and emotional harm to individuals in the community.

    Likelihood of further criminal conduct

32. In assessing the likelihood of further criminal conduct, I have examined the criminal history of the applicant. This shows that the applicant has been subject to a number of community-based orders including intensive corrections orders, probation orders and suspended sentences. It appears that despite the applicant being afforded a number of opportunities to prove himself in the community and to prevent him from being incarcerated at a young age, the applicant has breached a considerable number of these orders. The applicant’s first term of imprisonment at the age of 19 was noted by Justice Mullins as indicative ‘of the seriousness of [the applicant’s] offending at that stage’.[12] Most recently, the applicant was granted bail with conditions before he was to appear on charges of trafficking in drugs, and subsequently committed a string of offences in the one day.[13]

    [12] Exhibit A, G-Docs, G10 at p. 76

    [13] Exhibit B Annexure at p. 8-69

33. The applicant stated that his criminal offending stemmed from his drug addiction and from being caught up with the “wrong crowd” on the Sunshine Coast. There is evidence that he has undertaken two programs of rehabilitation for drug abuse, including the QMERIT program voluntarily throughout 2012-2013[14] and the DO IT program while incarcerated in 2013[15].

    [14] Exhibit A, G-Docs, G10 at p. 72-73; Exhibit B, at p. 4-5

    [15] Exhibit A, G-Docs, G16 at p. 115

34. The Minister submitted that the applicant was excluded from the QMERIT program, that the applicant’s drug rehabilitation has not been tested in a community environment as he has been predominantly incarcerated or in immigration detention since undertaking these in 2012 and 2013, and that there is no objective information from the rehabilitation providers as to the applicant’s specific participation and progress in those programs.

35. The applicant asserted in oral evidence that he substantially completed the QMERIT program over a period of six months however the exclusion was due to the fact he had a relationship with a fellow attendee of the program. He stated that he has addressed the addiction issue, having not used drugs for four years and has separated himself from acquaintances on the Sunshine Coast. The applicant stated that if he were allowed to reside in Australia he would settle in Mt Isa where he has work in his trade as a scaffolder and that he would avoid any acquaintances in the Sunshine Coast area. It is on this basis that the applicant believes that he does not pose a risk to the Australian community.

36. I consider the applicant’s evidence that he no longer uses drugs and would relocate to a geographical location in Australia where he can avoid old friends and associates who are the “wrong crowd” to be in earnest.

37. However, the likelihood of the applicant reoffending and the subsequent risk to the community must be based on the evidence rather than on the applicant’s intentions. While there is some evidence of the applicant undertaking rehabilitation before incarceration in 2012 on a voluntary basis and while incarcerated during 2013, there is limited information as to the progress of the applicant in these programs and no current information as to the applicant’s ongoing rehabilitation other than his oral evidence that he has been ‘clean’ for four years.

38. The applicant has admitted that his drug addiction and his criminal behaviour were a result of his ongoing association with particular friends and associates on the Sunshine Coast. The applicant has not put forward any cogent evidence that show that the likelihood of him reoffending has lessened. Rather, the applicant himself has admitted that he would stay away from the Sunshine Coast in order to prevent a relapse in his drug addiction and prevent him committing any crimes due to a renewed association with the “wrong crowd”. While the applicant has an intention to not return to the Sunshine Coast, his mother still resides on the Sunshine Coast. If the applicant were permitted to reside in Australia, I find that it is not feasible to expect the applicant would not visit the Sunshine Coast at some point in the future as it is not realistic to expect him not to see his mother. Nevertheless it is not possible to restrict the applicant’s movement if he was to be allowed to reside in Australia and nor is it sufficient for the purposes of this decision to rely on the hope that the applicant would not find himself based on the Sunshine Coast at some time in the future.

39. On this basis I consider the likelihood of the applicant reoffending and committing serious offences remains high if he were allowed to reside in Australia. This is because he has indicated that he has to stay away from the Sunshine Coast to avoid a relapse. He has not demonstrated that he has the capacity to not have anything to do with those friends and associates who have led him to criminal behaviour. This indicates that he is still at risk of reoffending.

    Summary

1. The applicant has been given many opportunities in the community previously, by way of community based orders prior to imprisonment and two warnings by the department. The seriousness of the drug trafficking offence and the string of 30 offences committed in one day while on bail indicate that the applicant is capable of causing significant harm to members of the Australian community.

2. There is no cogent evidence before me that the applicant has been rehabilitated and is deterred from committing drug related and other dangerous property and traffic related offences.

3. In my assessment, the protection of the Australian community from criminal or other serious conduct weighs more heavily in favour of not revoking the cancellation of the applicant’s visa, due to the nature and seriousness of the applicant’s conduct and the risk to the community should the applicant commit further offences.

   Primary consideration B – The best interests of minor children in Australia

4. Paragraph 13.2 of the Direction requires me to consider whether the revocation of the cancellation decision is in the best interests of minor children in Australia affected by the decision.[16]

   [16] 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 at [13.2(1)].

5. While there was evidence in the Applicant’s original application for revocation of mandatory cancellation of his visa that he maintained a close, fatherly relationship with his partner’s young daughter[17], the Applicant in his oral evidence confirmed he is no longer in that relationship and so is no longer the father figure to the young child.

   [17] Exhibit A G-Docs at G22 p. 124-125, G23 p.126 and G25 p. 134-136

6. On this basis I consider there are no minor children that will be affected by the decision and so I am not required to consider what their best interests may be in determining the outcome of this application.

   Primary consideration C - Expectations of the Australian community

7. The Australian community expects non-citizens to obey Australian laws.[18] Paragraph 6.3(3) of the Direction provides that a non-citizen who has committed a serious crime of a violent nature against vulnerable members of the community, such as minors, should generally expect to be denied the privilege of coming to or forfeit the privilege of staying in Australia.

   [18] Ibid 13 at [13.3(1)].  

8. In considering the expectations of the Australian community I have taken into account the long and repeated history of offending of the applicant. I have also taken into account that the non‑citizen has re-offended since he was formally warned about the consequences of further offending in terms of the non-citizen’s migration status.[19]

   [19] 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 at [13.1.1(g)].

9. The applicant was warned by the Department of the fact that visa cancellation may be reconsidered if he were to commit further offences or otherwise breach the character test, by way of a Notice issued in February 2012. While the applicant asserted in response to a question of the department that he did not receive this, I consider the evidence of this notice being signed for by a person who identified themselves as ‘H. Miller’ as sufficient as proof of the applicant being made aware of the Notice.[20]

   [20] Exhibit A G-Docs at G13 p. 95

10. The primary consideration of the expectations of the Australian community weighs heavily in favour of not revoking the cancellation of the applicant’s visa. The Australian community would in my assessment expect that the applicant should not hold a visa when having regard to his record of offending and the fact he had been given a warning regarding this.

    Other Considerations

11. Paragraph 14(1) of the Direction provides that I have to consider the other considerations where they are relevant.

    Non-refoulement obligations

12. There is no evidence before me that the applicant is at risk of harm that would invoke Australia’s international non-refoulement obligations if he is relocated to New Zealand.

13. The applicant has not given any evidence which is relevant to the non-refoulement obligations of Australia. The applicant is currently living and working in New Zealand.

    Strength, nature and duration of ties

14. The applicant has lived in Australia from the age of 13 years. At the date of the hearing he was 29 years of age. Both of the applicant’s parents reside in Australia. He also has a number of relatives in Australia including aunts and uncles, nieces and nephews and cousins.

15. The respondent relies upon para 14.2(1)(a) of the Direction which states that decision‑makers are to 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.

16. It is apparent from the applicant’s criminal history that he began offending soon after his arrival in Australia. This requires me to afford less weight to the factor regarding length of time he has resided in Australia.

17. The Minister submitted that there is little or no evidence that the applicant has positively contributed to the Australian community. I, however, do not consider that it is fair to accept this submission due to the delegate’s finding that the applicant has made a positive contribution to Australia through his employment from 2003 to 2012, even when offsetting this contribution due to his frequent offending throughout that period. Further, there is also some indication that the applicant could obtain future employment as a scaffolder for which he has relevant Australian qualifications.

18. My consideration of the strength, nature and duration of the applicant’s ties to Australia weighs heavily in favour of the revocation of the cancellation of the visa.

    Impact on Australian business interests

19. There is no evidence that Australian business interests would be impacted if the cancellation of the applicant’s visa is not revoked.

    Impact on victims

20. Paragraph 14.4 of the Direction requires that consideration be given to the impact of a decision to not to revoke on members of the Australian community including victims of a person’s criminal behaviour and on victims’ family members, where that information is available.

21. There is no evidence before the Tribunal that victims of the applicant’s offences will be impacted by the decision to revoke the cancellation of the applicant’s visa. The applicant is unlikely to have any contact with members of the Australian community who have been victims of his offences. However, a decision to not revoke would in my assessment protect members of the community in view of the criminal history of the applicant.

    Extent of impediments if removed

22. The Direction states at paragraph 14.5(1) that:

    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.

23. The applicant is a young man and there is no evidence that his health would preclude him from remaining New Zealand. He is currently employed in New Zealand. There is no evidence of any language or cultural barriers. The applicant has support from his brother in New Zealand. This other consideration does not weigh in favour of the revocation of the cancellation of the visa.

    Other

24. I am satisfied that there are no further other considerations relevant to deciding whether or not to revoke the cancellation of the applicant visa. Under paragraph 14 of the Direction there is a reference to the other considerations not being limited to those set out above, but in my assessment, there are no other considerations which are relevant here.

    CONCLUSION

25. I am satisfied that the applicant does not pass the character test in the Act.

26. I consider that there is an unacceptable risk that the applicant will again commit serious offences if his visa was restored. I also consider that the expectations of the Australian community are that he would not be allowed to remain in Australia. These are factors which weigh heavily in favour of not revoking the cancellation of the applicant’s visa.

27. There are factors which weigh in favour of revoking the cancellation of the visa. These are the strength, nature and duration of the applicant’s ties to Australia. However, this consideration is not outweighed by the primary considerations which weigh heavily in favour of not revoking the cancellation of the applicant’s visa.

28. I do not consider that there is any reason why the decision to cancel the applicant’s visa should be revoked.

29. I consider that the decision that was made by the delegate of the respondent on 31 March 2016 is the correct and preferable decision. In accordance with s 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) I affirm the decision.

    DECISION

30. I affirm the decision made under review.

I certify that the preceding 69  (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

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Associate

Dated: 28 February 2017

Date of hearing:	24 January 2017
Applicant:	By Telephone
Solicitors for the Respondent:	Sparke Helmore