Moore and Minister for Immigration and Border Protection (Migration)

Moore and Minister for Immigration and Border Protection (Migration) [2017] AATA 2589 (23 October 2017)
Division:GENERAL DIVISION
File Number: 2017/4644
Re:Jamie Dale Moore
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Deputy President S Boyle
Date:23 October 2017
Date of written reasons: 15 November 2017
Place:Perth

On 30 October 2017, the Respondent requested the Tribunal provide a statement in writing of the Tribunal’s reasons for its decision pursuant to subsection 43(2A) of the Administrative Appeals Act 1975 (Cth). The decision under review is affirmed.
............[sgd].......................................................
Deputy President S Boyle
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 – non-refoulement obligations – strength, nature and duration of ties – extent of impediments if removed – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 43(2A), s 62(4)
Firearms Act 1973 (WA)
Migration Act 1958 (Cth) – s 499(2A), s 501(3A), s 501(6), s 501(6)(a), s 501(7)(c),
s 501CA(3)(b), s 501CA(4), s 501CA(4)(a), s 501CA(4)(b)(ii)
CASES
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

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 – paras 6.1, 6.2, 6.3, 7(1), 8(1), 13(2), 13.1(1), 13.1(2), 13.1.1(1), 13.1.2(1), 13.3(1), 14(1)(a),(b),(d) and (e), 14.1, 14.2(1), 14.4, 14.5(1)
REASONS FOR DECISION
Deputy President S Boyle
15 November 2017
INTRODUCTION

On 23 October 2017, the Tribunal made the following order in relation to this application:
The Tribunal pursuant to section 43 of the Administrative Appeals Act 1975, affirms the decision under review.
By email dated 30 October 2017, the Respondent’s representative requested that the Tribunal provide to the Respondent written reasons for the Decision.
Due to the nature of certain matters dealt with in these reasons for decision the Tribunal considers that the identities of certain individuals referred to should be protected. To this end, the names of those persons have been altered to ensure protection of their identity.
THE APPLICATION
This is an application for the review of the decision of a delegate of the Respondent (the Minister) made on 31 July 2017 under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) not to revoke the decision of the Minister under s 501(3A) to cancel Applicant’s (Mr Moore) visa.
The application was heard by the Tribunal on 12 October 2017. Mr Moore was represented by co-counsel Mr Greg Barns and Mr Peter Slipper of Salamanca Chambers Hobart and the Minister was represented at the hearing by Mr Ashley Burgess of Sparke Helmore Lawyers. Mr Moore gave evidence. Mr Moore also called his partner, Ms F, who gave evidence. No witnesses were called by the Minister.
In addition to the oral evidence given at the hearing, the evidence before the Tribunal consisted of the following documents:
·Mr Moore’s Statement of Facts, Issues and Contentions dated 28 September 2017 (Mr Moore’s SFIC) (A1);
·Minister’s Statement of Facts, Issues and Contentions dated 13 September 2017 (Minister’s SFIC) (R2);
·bundle of Western Australian Police records including history of court proceedings, incident reports, statements of material facts, statements of victims and photographs produced by Western Australian Police under summons (R3);
·bundle of South Australian Police records including offender history, police apprehension reports and police incident reports produced by South Australian Police under summons (R4);
·South Australian Department of Planning and Infrastructure Driver Licence Report Summary of Offences and Disqualifications Record produced under summons (R5);
·progress notes from Mr Moore’s medical general practitioner from Swan Medical Group (A2); and
·187 page bundle of G documents (G1 – G36) (R1).
BACKGROUND
Mr Moore had held a Class TY Subclass 444 visa (the visa).
The visa was cancelled by the Minister in accordance with s 501(3A) of the Act on the basis that:
(a)the Minister was satisfied that Mr Moore did not pass the character test; and
(b)Mr Moore was serving a sentence of imprisonment on a full time basis for an offence against the law of the Commonwealth, a State or Territory.
Mr Moore was duly advised of the cancellation of the visa by letter dated 18 April 2017 (G28).
By a request dated 26 April 2017 (G10) sent by Mr Moore’s lawyers, Putt Legal, by email on 2 May 2017 (G9), Mr Moore requested revocation of the cancellation of the visa and made submissions to that effect.
By decision dated 31 July 2017 (G3) the delegate of the Minister decided under s 501(CA)(4) of the Act not to revoke the Minister’s decision to cancel the visa under s 501(3A) of the Act.
This application to review that decision of the delegate was lodged with the Tribunal on 7 August 2017 (G2).
THE FACTS
Mr Moore is a New Zealand citizen who was born in 1983. He arrived in Australia on 23 March 2008 at which time he was granted the visa.
Mr Moore has four children. Three children aged 8, 9 and 15 (at the time of the sentencing for the firearms offence in March 2017), live with their mother in New Zealand. The mother and those three children had come to Australia with Mr Moore, however, they returned to New Zealand when the relationship between Mr Moore and the mother ended (Levy DCJ sentencing comments G6 p 33). He has one other child, a daughter, who was born in 2016. The child lives in Western Australia with her mother, Ms F, who is an Australian citizen.
On 23 March 2017, following a trial before a judge and jury, Mr Moore was convicted of one count that on 28 May 2015 at Daglish, Western Australia, he was in possession of a firearm, being a Winchester 320 bolt-action repeating rifle whilst not being the holder of a licence or permit under the Firearms Act 1973 (WA) entitling him to do so, in circumstances where the firearm had been altered from the design or characteristics of its original manufacture (Levy DCJ sentencing remarks G6 p 31).
For that offence Mr Moore was sentenced to a term of imprisonment of two and a half years. The sentence was back-dated to commence on 30 December 2015, the date on which Mr Moore was taken into custody, and Mr Moore was made eligible for parole.
This conviction for the firearms offence and the resulting imprisonment were the basis for the cancelation of the visa under s 501(3A) of the Act.
Criminal history
Mr Moore has a criminal history in both New Zealand and Australia.
Subsequent to Mr Moore’s conviction on the firearms offence in March 2017, he was also convicted of a number of other offences. Mr Moore did not contest the accuracy of the National Police Certificate (G5, pp 26-29), the South Australian criminal record (R3), South Australian driving record (R4) or the New Zealand Police report (G8, pp 40-41).
The Minister’s summary of Mr Moore’s criminal history from the Minister’s SFIC, the detail of which was not contested by Mr Moore, is as follows:
9.The applicant has an extensive criminal history in both Australia and New Zealand of which eight offences resulted in the applicant’s most recent incarceration for two and a half years. Those offences were:
a.Unlicenced person possess firearm/ammunition - 2 years 6 months imprisonment
b. No authority to drive - 3 months imprisonment (concurrent)
c.No authority to drive (suspended) - 3 months imprisonment (concurrent)
d.Possession of a contrivance known as a silencer - 1 month’s imprisonment (concurrent)
e.Possession of a prohibited drug (methylamphetamine) - 2 month’s imprisonment (concurrent)
f.Possession of drug paraphernalia in or on which there was a prohibited drug or plant - 1 month’s imprisonment (concurrent)
g.Possession of a prohibited drug (methylamphetamine) - 2 month’s imprisonment (concurrent)
h.Possession of a controlled weapon - 2 month’s imprisonment (concurrent)
10.In total, the applicant has been convicted in Australia of 42 offences recorded from 2008 (when he was 25 years old) to 2017. His offending includes four weapons offences, three drug offences, four offences relating to obstructing police, a charge for escaping from lawful custody, eleven offences for driving an unregistered vehicle (including charges for driving with false number plates), two driving under the influence charges, twelve offences for driving whilst under licence suspension, and numerous other driving offences.
11.The most serious offending related to the firearm offence which occurred on 28 May 2015. Sentencing remarks indicate that on 28 May 2015 the applicant drove around Perth 'for an extended period of time' with a woman and her 'three extremely young children'. In the vehicle was a loaded rifle that 'was pointing towards the children who were seated in the rear of the vehicle'. The rifle had a round of ammunition in the chamber and another in the magazine and the rifle had been modified in a number of ways including having the barrel and handle shortened. The applicant did not have a licence to possess a firearm. The applicant had a further round of ammunition in his pocket. Also located in the vehicle were a machete, rifle scope, and silencer.
12.The applicant also has an extensive record of offending in New Zealand, recording 23 convictions from 2000 to 2005. Of those offences, three related to assault and fighting charges, five related to driving under the influence of alcohol, one related to driving whilst disqualified and the remainder were for breaches of community orders, drug offences, theft offences and trespass offences.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act is a mandatory cancellation power, requiring that:
(3A) 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 (7)(a), (b) or (c); or
(ii)…
(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 a Territory.
Section 501(6) of the Act sets out eleven sets of circumstances in which a person will be taken not to pass the character test. The first, set out at section 501(6)(a), is where a person has a substantial criminal record. In Mr Moore’s case, he has been sentenced to a term of imprisonment of 12 months or more and therefore has a substantial criminal record as defined at section 501(7)(c) of the Act. Mr Moore does not contest the convictions in his National Police Certificate, or that he does not pass the character test.
Section 501CA applies if the Minister has made a decision, known as the ‘original decision’, under section 501(3A) to cancel a visa that has previously been granted to a person. Section 501CA(4) provides that:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
As noted at paragraph 7 above, on 28 April 2017, responding to an invitation extended to him under section 501CA(3)(b) of the Act, Mr Moore made representations through his lawyers Putt Legal seeking revocation of the Minister’s decision. He therefore satisfied the requirement of section 501CA(4)(a) of the Act.
THE ISSUES BEFORE THE TRIBUNAL
As it is clear that Mr Moore does not pass the character test (see paragraph 22 above), the sole issue before the Tribunal, standing in the shoes of the Minister, is whether under section 501CA(4)(b)(ii) of the Act, ‘... there is another reason why the original decision should be revoked’.
In Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, North ACJ elaborated on how to approach this discretion (at [38]):
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked.
The existence or otherwise of ‘another reason’ should be established on the balance of probabilities.
Section 499 of the Act authorises the Minister to give written directions to a person or body having functions or powers under that Act, provided that the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) of the Act mandates that the person or body must comply with the directions. The Tribunal is such a body and accordingly must comply with any relevant direction when exercising the discretion under s 501CA of the Act (Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591 per Katz J).
The Minister has made a direction under s 499 of the Act, namely Ministerial Direction No 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 65). The Direction applies to the visa cancellation decision affecting Mr Moore.
Paragraph 6.1 of Direction 65 sets out the objectives of the Act, with the following parts being relevant to Mr Moore’s case:
6.1 Objectives
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2) ...
(3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against the law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. When the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
(4) The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2) of the Act, such decision-makers must comply with a direction made under section 499.
By way of general guidance, paragraph 6.2 of Direction 65 provides:
6.2 General Guidance
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) 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 the decision-maker is satisfied that a person 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 501CA. 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.
The “principles” referred to in the General Guidance to be applied by decision-makers, including the Tribunal, are set out in paragraph 6.3 of Direction 65 as follows:
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 a visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1) of Direction 65 sets out how the discretion under s 501CA(4) of the Act to revoke the cancellation of a visa under s 501(3A) of the Act is to be exercised:
Informed by the principles in paragraph 6.3 above, a decision-maker:
(a) …
(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.

Paragraph 8(1) of Direction 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.
Part C of Direction 65 (paragraphs 13 and 14) sets out considerations that are relevant when determining whether to exercise the discretion in s 501CA(4) of the Act.
PRIMARY CONSIDERATIONS
Pursuant to paragraph 13(2) of Direction 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
Paragraph 13.1(1) of Direction 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]
Nature and seriousness of the conduct
Paragraph 13.1.1(1) of Direction 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. Relevantly, these 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 offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
(b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), 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 court for a crime or crimes;
(d)the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(e) the cumulative effect of repeated offending;
…
The evidence shows that Mr Moore has an extensive criminal record in Australia and New Zealand.
In addition Mr Moore has an extensive record of driving offences in New Zealand and in two Australian States:
·In New Zealand he has five convictions for driving with an excessive breath alcohol level, one conviction for driving while disqualified, one conviction for operating a vehicle carelessly, one conviction for failing to remain stopped for an enforcement officer, one conviction for failing to stop when followed by red/blue flashing lights and one conviction for operating a vehicle which was not up to warrant of fitness standard. These convictions were recorded between August 2000 and March 2005.
·In South Australia he was convicted 14 times for speeding, once for driving in excess of 0.08, once for failing to wear a seat belt and four times for entering an intersection against a red traffic light in a four year period from December 2008 to December 2012.
·In Western Australia he has been convicted 12 times for driving under suspension or not being licenced, six times for driving an unlicensed vehicle, three times for driving a vehicle with number plates not issued to that vehicle, once for failing to provide a sample of breath for analysis, once for speeding, once for entering a carriageway contrary to a no entry sign, once for failing to wear a helmet and once for failing to ensure that a passenger was wearing a seat belt. These convictions were recorded between May 2013 and April 2017.
As noted above, following a trial in the District Court in March 2017, Mr Moore was convicted of possession of a firearm while not holding a licence in circumstances where the firearm had been altered after manufacture. Arising out of the incident that gave rise to that conviction Mr Moore was also convicted of a number of other offences relating to posession of methylamphetamine, drug paraphernalia and a silencer.
In sentencing Mr Moore, Levy DCJ made the following comments (G6 pp 31–33):
For the purposes of sentencing you today these are the facts: on the morning of 28 May of 2015 police officers who had been called to attend near Daglish Police Station found you asleep in the vehicle, the vehicle being a Toyota Camry that we've heard about in the course of this trial. You were effectively hauled out of the vehicle by the police officers who had been told of the possibility that there might be a gun in the vehicle. You were placed on the ground and handcuffed.
One of the arresting officers had cause to look into the vehicle and noticed what he thought was a butt of a firearm. His initial thoughts were later confirmed when in fact the police officers pulled the firearm which we now know to be a Winchester model 320 .222 - sorry, .22 long-rifle calibre bolt-action repeating rifle. That firearm had been modified in a number of ways. The barrel had been cut down, as had the stock - sorry, not the stock, the handle of the firearm.
Searching police officers also found a number of other items in the vehicle, namely, a machete, a red and black backpack, which inside they found a piece of metal barrel and rifle scope, a black bum bag, which inside they found a silencer, specifically a .22 long-rifle calibre silencer, and in your pants pocket they found a black pouch containing a single round of ammunition.
The attending police officers immediately made the firearm safe by, firstly, removing the magazine and also removing what they discovered to be a round of ammunition in the chamber. In other words, the firearm was loaded and ready to go.
…
There are, however, some aspects of the evidence which were not in dispute and for the purposes of sentencing you the facts include that you and [Ms W] and her three children had been driving around Perth for an extended period of time. On the evidence, it seems that something in the order of about 12 hours had elapsed from when you entered the vehicle and when the police ultimately took you out of the vehicle.
In that time there has been absolutely no evidence before me as to the gun first entering the vehicle. In other words, my findings of fact include that the gun was in the vehicle at the very least for the majority of the time in that 12-hour period of time. I don't need to make any findings of fact and indeed, on the evidence, for the purpose of sentencing it's not necessarily to make any findings of fact as to whether in fact you did or did not take the firearm out from underneath the seat.
However, looking at the evidence, it is clear to me that that firearm was pointing backwards towards the rear of the vehicle. In other words, it was pointing towards the children who were seated in the rear of the vehicle. In some sense, if it hadn't been taken out at all, it makes it even worse because at no time is there any material before me that you made any attempt to make sure that the vehicle - the firearm was safe.
On the evidence before me, that firearm was loaded with a bullet in the chamber pointing backwards towards those children. There were three extremely young children in the back of that vehicle for an extended period of time. At least for some period of the time that firearm was pointing back towards them. In my view, that fact alone is so serious as to make the circumstances of this offence towards the upper end of the range of offences of this sort; not only that, but not only was there one round in the chamber but there was a magazine containing other rounds. I've also heard that you had one round in your pocket, albeit in a pouch, of which there has been no explanation.
Now, you're not required to give any explanation in this trial and nor will you be in any way punished for having pleaded not guilty. However, there is nothing before me that would satisfy me that there are any indications of remorse with respect to this offence at all.
It alarms me and should alarm the community that you were in possession of a loaded firearm driving around in a vehicle around the suburbs of Perth with three young children, let alone [Ms W] in the vehicle. Now, in terms of - so by virtue of those facts, in my view, they seriously aggravate the circumstances of this offence and cause me to form the view that this is an offence of the sort towards the upper end of the range of this sort of offence.
At the hearing of this application Mr Moore was asked in cross-examination why he had a loaded rifle in the car when he was arrested. He declined to answer that question, as was his right under s 62(4) of the Administrative Appeals Tribunal Act 1975, on the ground that the answer may tend to incriminate him.
At the hearing of the application Mr Moore was also cross-examined in relation to his criminal record and incidents to which police had been called. One of the incidents occurred on 30 March 2015 when police were called to a disturbance at a house in Banksia Grove. The Detective Incident Report (R3 p 10) relating to that incident stated:
The victim and the POI were in an on/off relationship over 2 years, ending their relationship about 2 years ago. The POI who lives away from the victim contacted her the previous night asking if he could stay at her house for a while so she picked him up and allowed him to stay at her house where she lives with her young daughter.
The victim alleges that the POI has been controlling and acted in an aggressive threatening manner towards her since she picked him up. She states that over a period of approx 4 hours on 30/03/15, he punched her to the left cheek, the back of her head and grabbed her by the throat.
In cross examination Mr Moore categorically denied that he had hit the victim and said that he did not hit women. Ms F, the victim referred to in the police report, however, in cross examination confirmed the accuracy of the report and that Mr Moore had hit her in the face and the back of the head and had grabbed her by the throat.
It also emerged at the hearing that Mr Moore had lied on his incoming passenger immigration passenger cards. On three occasions, 23 March 2008, 28 February 2013 and 27 January 2014 (G13) Mr Moore had, in answer to the question “Do you have any criminal convictions” answered “No”. That was patently untrue. In cross-examination Mr Moore sought to explain the false declarations on his immigration entry cards as him misunderstanding the question. The question could not be any simpler. The Tribunal rejects Mr Moore’s explanation and takes this as an indication of a willingness on the part of Mr Moore to lie when it suits his purpose.
It was not disputed by Mr Moore that he was, or had been prior to his present incarceration, a regular user of drugs, in particular methylamphetamine. Mr Moore has not tested positive to drugs since his imprisonment.
The Minister submits that Mr Moore’s crimes should be viewed as serious for the following reasons:
29.In considering the nature and seriousness of the applicant’s conduct to date, the protection of the Australian community weighs heavily against a favourable exercise of the discretion in s 501CA(4) of the Act. The applicant’s violent crimes should be viewed as serious crimes for the following reasons:
a.The principle that, without limiting the range of offences that may be considered serious, violent crimes are viewed very seriously: A number of the applicant’s offences have involved violence (13.1.1(1)(a)).
b. The principle that crimes committed against vulnerable members of the community… are serious. The applicant was sentenced to two and half years prison in relation to weapons offences in circumstances where his offending put several children at risk of injury or death. The sentencing judge noted that:
There were three extremely young children in the back of that vehicle for an extended period of time, at least for some period of the time that firearm was pointing back towards them. In my view, that fact alone is so serious as to make the circumstances of this offence towards the upper end of the range of offences of this sort; not only that, but not only was there one round in the chamber but there was a magazine containing other rounds
The Minister contends that children are vulnerable members of the community (13.1.1(1)(b)).
c.The sentence imposed, specifically in relation to the sentences of imprisonment (13.1.1(1)(c)).
d.The applicant has a significant, and frequent, history of disregard for Australian law, in circumstances where, shortly after arriving in Australia he started offending, and offences have increased in seriousness since arriving: (13.1.1(1)(d)).
e.The applicant has shown a blatant disregard for Australian and New Zealand traffic laws in circumstances where he has been repeatedly caught drink driving and driving unregistered vehicles and despite having his licence suspended on numerous occasions has continued to drive and commit further traffic offences (during those periods of suspension): (13.1.1(1)(e)).
In relation to that issue Mr Moore’s SFIC is as follows:
16.It is submitted that, with the exception of the ‘current’ firearm offences, the record in Australia and New Zealand is not in the higher range of criminality.
17.While the firearms offending was reckless in that it posed a significant risk to young children in a vehicle, however did not involve sexual offending or actual violence.
18.The Applicant has indicated remorse and has insight into why he offended in the way he did; see G Documents p55.
19.His participation in rehabilitation programs in prison is indicative of a person who is seeking to reduce the risk of reoffending; G Documents p75. We are seeking further information from Casurina Prison and will submit any information as soon as possible.
The Tribunal agrees with the Minister. While some of Mr Moore’s offences, looked at in isolation, might not be considered to be serious, the sheer volume and frequency of the offences, their escalating degree of seriousness and the fact that a significant number were committed against vulnerable members of the community while under the influence of drugs, raises significant concerns about the safety of the public if the cancellation of Mr Moore’s visa were to be revoked.
It is also of concern to the Tribunal that, on Mr Moore’s own evidence, a number of his offences have been committed while he was under the influence of drugs, in particular methylamphetamine, but there seems to have been little effort by Mr Moore to address his methylamphetamine use. Notwithstanding that Mr Moore has been in prison for some time, there was no evidence presented to the Tribunal that Mr Moore had undertaken any drug rehabilitation program. Further, prior to the offences for which he was imprisoned most recently, Mr Moore committed a number of offences or was involved in violent altercations while he was under the influence of drugs. There is no evidence that he sought to address his drug issues following those earlier incidents. Mr Moore sought to explain, if not justify, his use of methylamphetamines as being the result of him being “at a very low ebb” following a car accident (paragraph 20 of Mr Moore’s SFIC). The Tribunal does not accept that argument. Many people have accidents or suffer from chronic pain. That cannot justify the use of an illegal drug like methylamphetamine with the well-known behavioural consequences that that drug has.
While Mr Moore asserts remorse for what he has done, the Tribunal does not accept the sincerity of that expression of remorse. Mr Moore has a long history of frequent and increasingly serious offending. There is no evidence of Mr Moore having sought to address his drug use or his aberrant behaviour and the Tribunal concludes that his claim of remorse is driven by the prospect of his visa being cancelled and him being returned to New Zealand rather than by any realisation on his part that his behaviour is unacceptable and a risk to the community. In that regard the Tribunal notes the comment of Levy DCJ in sentencing Mr Moore that (G6 p 33):
However, there is nothing before me that would satisfy me that there are any indications of remorse with respect to this offence at all.
This offence involved Mr Moore spending around 12 hours driving around with a loaded rifle in circumstances where the sentencing Judge found (G6 pp 32–33)
However, looking at the evidence, it is clear to me that that firearm was pointing backwards towards the rear of the vehicle. In other words, it is pointing towards the children who were seated in the rear of the vehicle.
…
On the evidence before me, that firearm was loaded with a bullet in the chamber pointing towards those children. There were three extremely young children in the back of that vehicle for an extended period of time. At least for some period of time that firearm was pointing towards them. In my view, that fact alone is so serious as to make the circumstances of this offence towards the upper end of the range of offences of this sort; not only that, but not only was there one round in the chamber but there was a magazine containing other rounds. I’ve also heard that you had one round in your pocket, albeit in a pouch, of which there has been no explanation.
The Tribunal is not satisfied that Mr Moore is remorseful for his past conduct or understands the significance to others of what he did and has done in the past. Further, his increasing criminal behaviour and the frequency of his traffic offences evidence a blatant disregard for the laws of Australia and the community in general. The nature and pattern of Mr Moore’s offending demonstrates a degree of recklessness toward the
well-being of the Australian community that cannot be tolerated or dismissed.
All of the above weighs against the revocation of the decision to cancel his visa.
(b) The risk to the Australian community should further offences be committed
Paragraph 13.1.2(1) of Direction 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).

In relation to the issue of the likelihood of Mr Moore offending in the future, Mr Moore’s SFIC submits:
21. On the issue of future offending risk we note:
•This offending was not part of a series of similar types of offences. It is undoubtedly a concerning incident, however the Applicant has expressed considerable remorse for the offence and shown insight in to his offending;
•The period of imprisonment imposed upon the Applicant has provided the applicant opportunity to refine his priorities in life with a view to there being no reoffending. Also the offending came about at a very low ebb in his life, after he became unemployed after a workplace injury. He has substantially recovered from his injuries.
•The Applicant has substantial family support in Australia but not in New Zealand.
•While imprisoned the Applicant has undertaken a significant number of employment related courses whilst serving in prison that will boost his prospects of employment upon release.
•It is also of note that the Applicant has strong family support and has been using his term of imprisonment to revaluate his life and obtain employment skills. He has work waiting for him upon release from prison.
•That he has rehabilitated, recovered from his injuries and completed educational programmes to improve his employment prospects and in fact has been offered work with a previous employer upon his release from prison. As set out above, the Tribunal has reached the view that Mr Moore’s expressions of remorse are not genuine but rather are driven by the prospect of his visa being cancelled and him being sent back to New Zealand. Whilst he asserts that his time in prison has caused him to “revaluate his life”, we have no more than Mr Moore’s assertion that that is the case. Looking at his extensive history of offending over a sustained period the Tribunal is not satisfied that Mr Moore will change his ways. He has been convicted of 42 offences in Australia in a relatively short period of around 8 years and had 23 convictions over a 5 year period in New Zealand before he arrived in Australia.
As set out above, the Tribunal has reached the view that Mr Moore’s expressions of remorse are not genuine but rather are driven by the prospect of his visa being cancelled and him being sent back to New Zealand. Whilst he asserts that his time in prison has caused him to “revaluate his life”, we have no more than Mr Moore’s assertion that that is the case. Looking at his extensive history of offending over a sustained period the Tribunal is not satisfied that Mr Moore will change his ways. He has been convicted of 42 offences in Australia in a relatively short period of around 8 years and has 26 convictions over a 5 year period in New Zealand before he arrived in Australia.
As noted earlier, it is also of concern that notwithstanding his admitted use of methylamphetamine, which on Mr Moore’s evidence started after his accident in around April 2014, there is no evidence before the Tribunal showing that he has sought to address that issue.
Mr Moore produced letters from his father, his grandmother, Ms F and a former employer of Mr Moore’s stating that he had generally been a hard working person and that his offending was out of character. While the support expressed in these letters is understandable, the Tribunal is not persuaded by them. The Tribunal is of the view that his extensive, frequent and escalating offending is more indicative of Mr Moore’s true character and the likelihood of his reoffending.
While Mr Moore’s father has expressed support for his son, he lives in Darwin. Similarly Mr Moore’s grandmother lives in Adelaide so it is not clear, in practical terms, how Mr Moore’s father and grandmother would provide support to Mr Moore if he were to be released back into the community.
Mr Moore’s family and Ms F are undoubtedly good people who care for Mr Moore. It is noted, however, that this support network did not stop Mr Moore from offending in the past and the Tribunal has concerns that their ongoing support will not stop him from engaging in illegal conduct again should the opportunity arise.
In considering whether Mr Moore 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 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.
There is no evidence before the Tribunal that can lead it to conclude that Mr Moore’s risk of reoffending is low. The evidence before the Tribunal shows that Mr Moore has an extensive criminal record. He moved to Australia in 2008, already having an extensive criminal record in New Zealand, and started committing offences shortly after his arrival. The Tribunal notes the increasing seriousness of his offending since arriving in Australia, his flagrant disregard for the law and his continued reoffending – including committing the same offences involving firearms and drugs.
Overall Mr Moore’s offences, in particular the offences for which he is presently serving a two and a half year term of imprisonment, are serious and, should he reoffend, the result for the community would again be serious and completely unacceptable. Mr Moore did not strike the Tribunal as remorseful and the Tribunal has concerns about his commitment to effective rehabilitation and good behaviour.
In the circumstances, the Tribunal finds that there is a risk that Mr Moore will engage in harmful behaviour if released into the community despite the support of Ms F, his father and grandmother. This poses an unacceptable risk of harm to the Australian community as there is a serious risk that he will reoffend. Given the seriousness of his crime, this is an unacceptable risk to the community and weighs against any revocation of the decision to cancel Mr Moore’s visa.
(ii) Best interests of minor children in Australia
As noted above, Mr Moore has three children living with their mother in New Zealand. Mr Moore is the biological father of one minor child in Australia, a daughter born in 2016. Ms F is the mother of that child. Mr Moore has been in prison for the whole of the child’s life.
Mr Moore’s partner, Ms F, also has a nine year old daughter from a previous relationship. Ms F’s letter of 11 May 2017 (G15) advises that, in relation to her daughter form the previous relationship:
Jamie has been in my daughters (sic) life for the majority of her life and so far his absence has impacted her greatly. My daughter spends time with her biological father on a regular basis.
There was no independent evidence provided as to the likely impact on either of the children of Mr Moore being sent back to New Zealand. It is the Tribunal’s understanding that Ms F’s daughter by the former relationship is supported by the child’s father.
As outlined in paragraph 13.2 of Direction 65, the Tribunal must make a determination about whether revocation of a decision to cancel a visa is in the best interests of affected children.
Paragraph 13.2(4) of Direction 65 sets out the factors the Tribunal must consider if relevant. They are:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is not existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that contact has, or will have, a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are any other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect;
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
In relation to the best interests of these two children, Mr Moore contended as follows in his SFIC:
23.The Applicant's Australian … daughter … requires his love and support and his removal from Australia would adversely affect her long term emotional and psychological health.
24.His partner's nine year old daughter has already been greatly affected by his absence and would be devastated by his removal.
25.That his partner of some five years is struggling financially and emotionally without the Applicant; G Documents p68
26.The Applicant’s partner and children cannot relocate to New Zealand because her nine year old daughter has a relationship with her biological father who resides in Australia. There are Family Court orders in place which provide for the biological father to have access.
27.The Applicant’s role in the lives of his daughter and his partner's nine year old daughter have been restricted by virtue of his incarceration.
28.The Applicant has expressed a desire to, and has to the extent he is able given his detention, maintained relationships with his daughter and step daughter of a positive nature.
The Minister’s SFIC contends that:
34.The applicant has a minor child aged one year in Australia and three children from a former relationship who now reside in New Zealand7. In accordance with Direction 65, the interests of the applicant’s child in Australia should be taken into account.
35.Notwithstanding that the applicant has a minor child in Australia, the respondent contends that this, of itself, does not warrant the discretion being exercised in the applicant’s favour in circumstances where:
a.the child’s mother currently fulfils a parenting role for the child: 13.2(4)(e) of Direction 65.
b.The applicant has been incarcerated for the entirety of the child’s life 13.2(4)(a) of Direction 65.
c.there is no independent evidence of the effect of any separation from the applicant and there is ability for the applicant to maintain contact with the child in other ways (i.e. telephone/video communication and/or the child travelling to New Zealand with the applicant).
In his personal circumstances form, Mr Moore in the section that asks the applicant to describe his relationship with each child, wrote (G11 p 53):
My daughter … was born while I am in prison and comes to visit me at least 3 times a week with my partner [Ms F]. I speak to [Ms F] and my daughter multiple times a day through the prison phone.
My visa cancellation will destroy my relationship with my daughter because she will grow up without her father. I am a positive role model for my daughter and will love and support her always.
In the section of that form asking the applicant to describe the impact that cancellation of the visa would have on the children, Mr Moore wrote (G11 p 53):
My daughter is too young to realise what is happening at this age. My daughter needs my love and support so she can grow healthy, and have the best chance at life.
If I was to relocate to New Zealand my family would suffer hardship as they are now because I am in prison. My daughter would grow without her father.
Dealing firstly with the older daughter of Ms F, the evidence is that Mr Moore does not support this child and the child has a father with whom the child spends time. Obviously since Mr Moore’s imprisonment over the last several years this child has spent no time with Mr Moore. In that regard the prison visits history (for the period 3 June 2015 to 21 April 2017 (G21)) does not show that child ever having visited Mr Moore in prison. Also, Mr Moore’s claim that he and his current partner Ms F have been in a relationship for approximately 5 years prior to his imprisonment was at the hearing shown to be false. Under cross-examination Mr Moore, when confronted with evidence, in particular the details given to police by Ms F when police attended the domestic disturbance when Ms F was assaulted by Mr Moore in March 2105, conceded that during the period that he claimed to have been in a relationship with Ms F he had had several other relationships and had lived with other women. Ms F similarly conceded that to be the case and that her relationship with Mr Moore had been “on/off relationship over 2 years, ending about 2 years ago” as she had advised police at the time of the incident in March 2015.
In relation to his biological daughter, again there is no independent evidence that this child will suffer any detriment if Mr Moore were to have his visa cancelled. Naturally enough Mr Moore wants to be with his daughter as she grows up, however, the consideration for the Tribunal is the impact on the child, not the effect on Mr Moore. The relationship had only recommenced around the time that Mr Moore went to prison.
Mr Moore has been in prison for the whole of his daughter’s life. The Tribunal rejects Mr Moore’s assertion that he is “a positive role model for [his] daughter”. His extensive criminal record, the nature of the offences that he has committed, in particular the very serious conduct towards the three children of his former partner in the incident that lead to Mr Moore’s current imprisonment, would indicate that Mr Moore is far from a positive role model. The fact that he has been in prison for the whole of his daughter’s life also makes that claim untenable.
The Tribunal also notes that insofar as Mr Moore seems to be concerned about the impact on children of not having their father, Mr Moore’s three children by his previous relationship have been without their father in New Zealand since they returned to New Zealand with their mother years ago.
In relation to each of the factors listed in subparagraphs (a) to (h) of 13.2(4) of Direction 65, the Tribunal observes as follows:
(a)due to the age of the child and the fact that Mr Moore has been in prison for the whole of the child’s life, there has been no meaningful (to the child) contact with the child;
(b)Mr Moore’s previous behaviour and extensive criminal record, including repeat offences involving firearms and methylamphetamine, would obviously not be a positive parental role model;
(c)Mr Moore has been convicted of a very serious crime in which his conduct directly and seriously threatened the safety and life of children. For the reasons previously stated the Tribunal is not satisfied that Mr Moore is truly remorseful for his conduct or that he is seriously doing something to address his obvious drug and anger issues as disclosed by his criminal record;
(d)as noted above, due to his imprisonment, Mr Moore has only had very limited contact with his daughter. There was no evidence presented other than general statements by Mr Moore and Ms F as to the effect that Mr Moore being sent back to New Zealand would have. These statements were as much about the effect that that would have on Mr Moore as they were about the impact that his being sent back to New Zealand would have on the infant child. The impact on Mr Moore is not the relevant consideration;
(e)Ms F has fulfilled the role of parent since the child’s birth;
(f)the child is too young to express any view;
(g)this consideration does not arise because Mr Moore has never lived with the child; and
(h)for the same reason, this consideration does not arise.
The Tribunal finds that there is nothing to indicate that Mr Moore’s daughter or Ms F’s older daughter would be adversely impacted by the cancellation of Mr Moore’s visa.
(iii) Expectations of the Australian community
The third consideration listed in Direction 65 is the expectations of the Australian community. In this regard, paragraph 13.3(1) of Direction 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.
In analysing this third and primary consideration, the Tribunal again refers to the stated principles in paragraph 6.3 of Direction 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.
Mr Moore’s SFIC identifies two matters under this heading, They are:
34.The Applicant has contributed to the Australian community through paid employment between 2008 and 2014 and while on bail in 2017.
35.The Australian community would not expect him to be removed due to his role in his infant daughter’s life, his reduced risk of reoffending, and familial ties to this country.
The Minister’s SFIC relevantly states:
36.The Direction indicates, at paragraph 13.3(1), that non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. It further notes that decision makers should have due regard to the government’s views in this respect.
37.The Australian community would expect that the applicant, being a visa holder who has weapons related offences with potentially very serious consequences and repeated serious driving offences, would not have his visa reinstated.
38.In this respect, the Sentencing Judge noted that “it should alarm the community that you were in possession of a loaded firearm driving around in a vehicle around the suburbs of Perth with three young children, let alone [Ms W] in the vehicle”.
39. This primary consideration heavily weighs in favour of refusal.
Dealing with Mr Moore’s contention at paragraph 35 of his SFIC, for reasons set out previously in this decision, the Tribunal finds firstly that Mr Moore has, in effect, had no role in his infant daughter’s life and secondly that there is no evidence to support the assertion that Mr Moore is at a “reduced risk of reoffending”. The evidence, other than Mr Moore’s assertion, is to the contrary. Mr Moore’s extensive criminal record and his apparent, in the Tribunal’s view, failure to accept the seriousness and the consequences of his repeated criminal conduct give the Tribunal cause to think that Mr Moore is a significant risk of reoffending.

In relation to his familial ties, other than his infant daughter, he has a father in Darwin with whom he has limited contact and a grandmother in Adelaide with whom he similarly has limited contact. There are no significant filial ties.
The Tribunal accepts the Minister’s submissions. Mr Moore is someone who has come to Australia, having lied about his New Zealand criminal record, and has soon after arrival, commenced offending, albeit initially only traffic offences. His offending, however, became increasingly serious from late 2013 onwards and he has shown sustained and significant disregard for the laws of Australia. The Tribunal is of the view that the Australian community would expect that someone who has come to this country, in effect as a guest, and who has committed the number of crimes that Mr Moore has and who has committed crimes of the nature that Mr Moore has, in particular crimes involving firearms and methylamphetamine and a crime involving serious risk to the life and safety of children, has forfeited his right to stay in Australia. He has breached the trust of the Australian community and there is an unacceptable risk that he may do so again.
(iv) Other considerations
Paragraph 14(1) of Direction 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.
Based on the evidence currently available, the only other considerations that may be relevant in the present case are:
·strength, nature and duration of ties; and
·extent of impediments if removed.
Strength, nature and duration of ties
Paragraph 14.2(1) of Direction 65 requires the Tribunal to consider the applicant’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).
Mr Moore has spent about nine years in Australia, although he has spent some considerable portion of that time (since June 2015) in prison. There was evidence that Mr Moore initially contributed to the Australian community through paid employment. It does appear that things significantly deteriorated for Mr Moore after his accident in April 2014. It is not clear from the material before the tribunal whether Mr Moore has worked since April 2014.
The Tribunal accepts that insofar as Mr Moore was employed he made a contribution to the Australian community. That contribution, however, is far outweighed by the offences that Mr Moore has committed.
The only ties to the Australian community to which Mr Moore points (G24 p 117) are his grandparents (his grandfather has since passed away and, as noted above, his grandmother lives in Adelaide) and his father who lives in Darwin. The Tribunal does not view these ties as significant and does not consider that they have any material weight when compared to the primary considerations referred to above.
Extent of impediments if removed
Paragraph 14.5(1) of Direction 65 requires the Tribunal to consider the extent of any impediments if an applicant is removed from Australia as follows:
(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.
The Tribunal does not see that there are significant impediments to Mr Moore being removed to New Zealand in circumstances where the language and culture in that country are similar to that of Australia. Mr Moore is a New Zealand citizen and will have access to basic social, medical and economic support in that country. Importantly, these services include drug counselling of a sort that would assist Mr Moore should he choose to avail himself of those services.
CONCLUSION
On 23 March 2017 Mr Moore was sentenced to two and a half years’ imprisonment for possession of a firearm whilst not being the holder of a relevant licence or permit under the Firearms Act 1973 (WA) in circumstances where the firearm had been altered from the design or characteristics of its original manufacture. He was subsequently convicted of other offences involving firearms, possession of a silencer and possession of prohibited drugs (methylamphetamine) and drug paraphernalia and for driving while under suspension for which he received sentences ranging from one month to three months all to be served concurrently with the two and a half year sentence.
Having received a sentence of a term of imprisonment in excess of 12 months, Mr Moore has a “substantial criminal record” and does not, as a result, pass the character test in
s 501(6) of the Act. Further, as Mr Moore 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 Act. His visa was mandatorily cancelled on 18 April 2017.
In determining whether there is any reason why the decision to cancel Mr Moore’s visa should be revoked, the Tribunal has attached significant weight to Mr Moore’s lengthy criminal record and the fact that his offending was serious in nature. In particular Mr Moore’s convictions for possession of firearms and methylamphetamine and the circumstances of the offence committed on 28 May 2015, in particular the serious threat to the safety and life of children, was a serious crime and its commission must be viewed seriously.
In this regard, the Tribunal has taken account of the following factors detailed in paragraph 13.1.1 of Direction 65:
(a)the sentence imposed by the courts for crimes – noting that in Mr Moore’s case a significant custodial sentence was ordered based on the seriousness of his offending;
(b)the frequency of Mr Moore’s offending – noting that the offending has continued to escalate since late 2014, having been charged with no less than 42 offences in Australia since 2005 which include, inter alia, resisting police, escaping custody possession of weapons and possession of methylamphetamine; and
(c)the cumulative effect of repeated offending – noting that the cumulative effect of the offences demonstrates a disregard for the laws of Australia and the harm caused to the community.
The Tribunal also finds that there remains an unacceptable risk that Mr Moore 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 Mr Moore engage in further criminal or other serious conduct and the likelihood of further criminal or other serious conduct, taking into account relevant information and evidence on the risk of Mr Moore re-offending.
Mr Moore’s prospects of avoiding further offending would appear, in part at least, to be dependent on his ability to deal with his issues with methylamphetamine. On the evidence, the Tribunal finds that Mr Moore has failed to recognise the gravity of his offending. This poses an unacceptable risk to the Australian community as there is a risk that he will reoffend. Given the nature of his crime this is an unacceptable risk to the community and weighs heavily against any revocation of the decision to cancel Mr Moore’s visa.
Given the nature of the crime committed and the prospect of future offending, the Tribunal is also of the view that the Australian community would expect that Mr Moore’s visa would remain cancelled.
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 65 the correct and preferable decision is to refuse to revoke the cancellation of Mr Moore’s visa.
DECISION
For the reasons outlined above, the decision under review is affirmed.

I certify that the preceding 105 (one hundred and five) paragraphs are a true copy of the reasons for the decision herein of

..........[sgd].......................................................
Administrative Assistant - Legal
Dated: 15 November 2017

Date of hearing: 12 October 2017

Co-counsel for the Applicant:
Mr G Barns and Mr P Slipper of Salamanca Chambers

Representative for the Respondent: Mr A Burgess

Solicitors for the Respondent: Sparke Helmore Lawyers

[2017] AATA 2589

23 October 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Remedies

Statutory Construction

Date of hearing:	12 October 2017
Co-counsel for the Applicant:	Mr G Barns and Mr P Slipper of Salamanca Chambers
Representative for the Respondent:	Mr A Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers