Moore and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2020] AATA 5161

Moore and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 5161 (22 December 2020)

Division:GENERAL DIVISION

File Number(s):      2020/6164

Re:Shane Rangi Moore

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member

Date:22 December 2020

Place:Sydney

The decision under review is set aside. The Tribunal decides in substitution that the mandatory cancellation decision is revoked. 

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

Mr S Evans, Member

CATCHWORDS

MIGRATION – mandatory visa cancellation – failure to pass character test – whether there is another reason why the decision-maker should exercise its discretion to revoke the original visa cancellation decision – consideration of Direction No. 79 – primary considerations – protection of the Australian community – best interests of minor children in Australia – expectations of the Australian community – relevant other considerations – strength, nature and duration of ties – extent of impediments if removed – decision under review set aside and substituted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), s 18B

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

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185

SECONDARY MATERIALS

Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Mr S Evans, Member

22 December 2020

INTRODUCTION

1. The Applicant, Shane Rangi Moore, seeks review of a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Respondent”) not to revoke the cancellation of his Special Category (Class TY) (Subclass 444) visa (“the visa”).

   BACKGROUND

2. Mr Moore is a 25 year old citizen of New Zealand who first arrived in Australia on 18 April 2009 as the holder of the visa. He has not left Australia since.

3. On 18 December 2019, the Department of Home Affairs cancelled Mr Moore’s visa pursuant to subsection 501(3A) of the Migration Act 1958 (Cth) (“the Act”).

4. On 23 December 2019, Mr Moore sought revocation of the mandatory cancellation of the visa under subsection 501CA(4) of the Act. On 29 September 2020, a delegate of the Respondent decided not to revoke the decision to cancel Mr Moore’s visa. On 7 October 2020, Mr Moore applied to the Administrative Appeals Tribunal (“the Tribunal”) for review of the delegate’s decision.

5. At the time of the hearing, Mr Moore was being held in immigration detention. He had legal representation and provided evidence to the Tribunal under affirmation. The matter was heard on 2 December 2020 and all participants appeared via videoconference in accordance with the COVID-19 Special Measures Practice Direction issued under section 18B of the Administrative Appeals Tribunal Act 1975 (Cth).

6. Mr Moore concedes that at the time of the original decision to cancel his visa he did not pass the character test because he had a substantial criminal record as defined by paragraph501(7)(d) of the Act.[1]

   [1] Applicant’s Statement of Facts, Issues and Contentions, [4].

7. Following the review of Mr Moore’s sentence by the District Court of New South Wales on 19 February 2020, Mr Moore’s term of imprisonment was varied from 12 months to nine months. Consequently, Mr Moore no longer meets the criteria for mandatory cancellation of his visa under subsection 501(3A) of the Act. However, owing to the aggregation of the varied sentence together with a previous sentence of eight months imprisonment on 13 April 2018, it is agreed by both parties that Mr Moore fails the character test for the purpose of subsection 501(4) due to his substantial criminal record under paragraphs 501(6)(a) and (7)(d) of the Act.

   ISSUES TO BE DETERMINED

8. The issue for the Tribunal to consider is whether to revoke the original decision to cancel the Applicant’s visa pursuant to subsection 501CA(4) of the Act.

9. The Tribunal may revoke the original decision if the Tribunal is satisfied:

   (a)that the Applicant passes the character test as defined by paragraph 501(6)(a) and subsection 501(7) of the Act; or

   (b)that there is another reason why the original decision should be revoked: paragraph 501CA(4)(b).

10. As it is agreed that Mr Moore does not pass the character test as he has a “substantial criminal record” as defined by the Act, the only relevant issue is whether there is another reason to revoke the original cancellation decision.

    RELEVANT LAW AND MINISTERIAL DIRECTION NO. 79

11. Section 501CA of the Act applies if the Minister decides under subparagraph 501(3A)(a)(i) to cancel a visa that has been granted to a person.

12. Subsection 501(3A) of the Act states that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of subsections 501(6) and 501(7).

13. Paragraph 501(6)(a) of the Act provides that a person does not pass the “character test” if the person has a “substantial criminal record”. A person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more: paragraph 501(7)(c).

14. The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act which 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.

15. Paragraph 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.

16. The Minister has made written directions under section 499 of the Act which must be complied with by decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (“the Direction”).

    The Direction

17. Paragraph 6.2 of the Direction is entitled ‘General Guidance’ and relevantly provides:

    1.    The Government is committed to protecting the Australian community from harm as a result of the criminal activity or other serious conduct by non-citizens. The principles [in paragraph 6.3] 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.

    …

    3.    The principles provide a framework within which decision-makers should approach their task of deciding … whether to revoke a mandatory cancellation under section 501CA. The relevant … factors that must be considered in making a revocation decision are identified in Part C of this Direction.

18. Paragraph 6.3 relevantly provides:

    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.

19. Part C of the Direction identifies the considerations that decision makers must have regard to when determining whether to exercise the discretion to revoke the mandatory cancellation decision. The primary considerations provided in sub-paragraph 13(2) should generally be given greater weight than the other considerations.

20. The Direction also states that one or more primary consideration may outweigh the other considerations.

21. The “primary considerations” are:

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

    (b)the best interests of minor children in Australia; and

    (c)expectations of the Australian community.

22. The “other considerations” are as follows:

    (a)international non-refoulement obligations;

    (b)strength, nature and duration of ties;

    (c)impact on Australian business interests;

    (d)impact on victims; and

    (e)extent of impediments if removed.

23. The Tribunal is to consider each of the primary considerations and, as relevant, the other considerations.

    PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT

24. The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Sub-paragraph 13.1(2) of the Direction further provides that decision-makers should consider:

    (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.

    Mr Moore’s offending

25. Mr Moore’s history of offending is detailed in an Australian Criminal Intelligence Report, sentencing remarks from his court appearances and excerpts of the NSW Police Force Facts Sheets relating to his offences.

26. Relevantly, Mr Moore has been sentenced to two terms of imprisonment, totalling 17 months.  

    September 2019 offences

27. On 6 November 2019 at the Manly Local Court, Mr Moore pleaded guilty to assault occasioning actual bodily harm, common assault, behave in offensive manner in/near public place/school and destroy or damage property less than $2000.

28. The offending relates to a random assault on a 15-year-old boy. According to the submissions of his representative during sentencing, Mr Moore was affected by alcohol and cannabis when he boarded a bus holding a glass bottle, cornered a 15 year old boy at the back of the bus who said he did not want trouble, and punched him in the face repeatedly using his hands and the bottle. The assault continued as the victim moved to the front of the bus before Mr Moore stumbled off the bus. The boy was left with redness and swelling to his left cheek.

29. Magistrate Goodwin sets out the seriousness of the incident in her sentencing remarks which state in part:

    [T]his offence in my view is serious. It involved gratuitous violence to a complete stranger, a young person on a bus, entitled to go about catching public transport in safety and without molestation and assault by people who have consumed far too much alcohol. It is a serious problem, Mr Moore, and if you do not do something about it, you will find that you will spend longer and longer in custody.

30. On appeal, the Downing Centre District Court reduced the term of imprisonment imposed by the Manly Local Court from 12 months with a non-parole period of five months to nine months with a non-parole period of four months.

    January 2018 offences

31. On 13 April 2018, Mr Moore was convicted of common assault, assault occasioning actual bodily harm and destroy or damage property less than $2000 for which he was sentenced to a two-year good behaviour bond, eight-months imprisonment suspended upon entering an eight-month good behaviour bond and directed to attend counselling and drug or alcohol rehabilitation.

32. A NSW Police Facts Sheet records that on 26 January 2018 Mr Moore was affected by alcohol when he entered into a physical altercation with his friend.[2] The assault was to prevent the aggressive sexual advances of his friend towards his friend’s girlfriend. It is stated that Mr Moore delivered a strike with a flashlight and hit his friend over the head with a wooden chair causing a leg to break off. His friend sustained injuries which included a deep laceration to the top of his head about four centimetres long, a bleeding nose and a bruised left eye.[3]

    [2] TB1, 2.

    [3] Ibid 3-4.

    Other convictions

33. On 19 January 2016, Mr Moore was convicted of behave in offensive manner in/near public place/school and assault officer in execution of duty.

34. On 29 September 2014, Mr Moore was issued a section 9 bond for 12 months for resist officer in execution of duty, assault police officer in execution of duty following offences which took place in July 2014.[4]

    [4] TB3, 38.

    Mr Moore’s background

35. Mr Moore’s background is set out in the Applicant’s Statement of Facts, Issues and Contentions. Mr Moore migrated to Australia with his adoptive father when he was 13 years old. The man Mr Moore calls his father is his paternal uncle and in the reasons that follow, references to Mr Moore’s father are the same. 

36. It is submitted on behalf of Mr Moore that there are long-term and short-term factors that contributed to his offending. He has a complex trauma history marked by early trauma and emotional neglect from the age of six to 16 when he was in the care of his adoptive father. After his adoptive mother’s death, when Mr Moore was six years old, Mr Moore’s adoptive father abused alcohol excessively and was violent and emotionally neglectful. In 2011, Mr Moore became homeless following a breakdown in the relationship between himself and his father’s new partner. He remained homeless for a period of approximately three years.  

37. Mr Moore began drinking alcohol at age 12 and at age 13 to 15 he started smoking cannabis. Mr Moore meets the DSM-V criteria for Alcohol Use Disorder and Cannabis Use Disorder.

38. It is submitted that one of the results of this trauma history is that Mr Moore became self-reliant, sought acceptance through substance abuse with peers and learnt to cope emotionally by disconnecting himself. Mr Moore’s developmental trajectory has contributed to him developing depression which combined with substance abuse, has had a negative impact on his general functioning and a significant impact on his behaviour.

39. Further, Mr Moore has an intellectual disability and mental health conditions which developed when he was a teenager. As well as impaired cognitive functioning, he has limited executive functioning and problem-solving ability contributing to a lack of self-control and impulsive behaviour.

40. Mr Moore struggled at school due to difficulties with reading and spelling. He left school after completing year 10 and commenced a spray-painting course at TAFE. He completed one and a half years of an apprenticeship. His homelessness during the time he was an apprentice affected his capacity to work to his full potential. He was assisted by his employer in finding housing for a period but due to his drinking and drug use, he lost his job and housing and subsequently became homeless again. After leaving his apprenticeship, Mr Moore worked as a landscaper for approximately 18 months. 

    The nature and seriousness of the Applicant’s conduct to date

41. Mr Moore’s crimes involved aggressive behaviour and violence, including towards strangers. It is also of very serious concern that the victims of his crimes included a 15 year old boy and police officers in the course of their duty. Though his prison sentence was reduced on appeal, sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offence involved. The seriousness of the offending is underlined by the fact that Mr Moore was serving a community corrections order at the time of the September 2019 offences.

42. Should Mr Moore reoffend it is likely to involve significant physical and psychological harm to members of the Australian community with adverse consequences for public health, the justice system and the general incidences of violent crime, and the Tribunal accepts this is of very serious concern.

    The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

43. In assessing whether Mr Moore represents an unacceptable risk to 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.

44. Turning to the likelihood of reoffending, the Respondent contends that Mr Moore represents an unacceptable risk of committing further criminal offences and causing significant harm to members of the Australian community.

45. Mr Moore states that his risk of reoffending is low. He acknowledges that he drank to “numb the pain” and understands that when he drinks and “blacks out”, he gets in trouble with the police.[5] It is argued by Mr Moore that he has demonstrated insight into his offending, notably by acknowledging the impact his most recent assault conviction had on the victim and the wider community. Further, he has taken meaningful steps towards rehabilitation, which are identified as a Certificate of Acknowledgement for demonstrating a positive attitude with a willingness to participate in a polite respectful manner in October 2019, Certificates of Attendance at a Health Survival Program in October 2019, and attendances at the Drug and Alcohol Multicultural Education Centre’s Anger management group program to assist with coping skills in August 2019. NSW Corrective Services records that Mr Moore also completed the MERIT program ‘with a positive outcome’ in January 2016.[6]

    [5] Applicant’s Statement of Facts, Issues and Contentions, [54]; Statement of Shane Rangi Moore dated 6 November 2020, [22].

    [6] TB4, 183.

46. Mr Moore has been supported by Mission Australia and is currently working with Jessica Taylor, a case manager in the AOD Continuing Coordinated Care Program, to develop a plan to support his abstinence from alcohol and other drugs and address his underlying emotional and mental health issues should he be allowed to stay in Australia. His engagement with Ms Taylor is weekly and continues to be so whilst Mr Moore is in detention.

1. Ms Taylor has indicated that Mission Australia would provide intensive case management support and support services to assist Mr Moore. Mission Australia would also be supported by Mr Moore’s network of friends who would provide emotional support should he be released back into the community. Mr Moore writes in a submission to the Tribunal of his plans should he be released:

   If I was allowed to stay in Australia, things would be different to how they were before. Now that I am older, I can see that I was lost when I was younger, and didn’t ask for enough help from people.

   I don’t want to drink or do drugs anymore. The person I used to be, and the things I used to do like being violent are disgusting.

   I want to work with Jessica Taylor from Mission Australia to get involved in drug and alcohol counselling, as well as getting her assistance with things like getting a job…

   …I don’t want to live on the street anymore. I want to get my life together and be a good example for my little brother.[7]  

   [7] Statement of Shane Rangi Moore dated 6 November 2020, [53]-[55], [58].

2. A forensic psychological report dated 4 September 2017 was prepared by Forensic Psychologist Susan Hayes. Dr Hayes writes that Mr Moore ‘has a mild-borderline intellectual disability’ as well as ‘suffering from the mental conditions of generalised anxiety disorder, panic attacks, and severe alcohol use and cannabis use disorders’.[8]

   [8] G16, 108.

3. Dr Hayes concludes that ‘dis-inhibition and impulsivity caused by severe substance abuse’ was a major factor impacting upon his offending.

4. An earlier report by clinical and forensic psychologist Rima Nasr dated 24 August 2015, when Mr Moore was 20 years of age, concludes that Mr Moore’s intellectual skills are in the ‘Low Average’ range. The author acknowledges that Mr Moore suffers from mental health problems notably anxiety and depression and confirms his insight into the ‘problematic nature of his alcohol and cannabis use’. She opines that Mr Moore’s mental conditions, being social anxiety, depression and alcohol and cannabis use disorders combined with his difficult upbringing had a significant impact on his offending behavior.[9] She writes ‘[t]he critical issue to such disturbances are the impacts they have on both emotional and behavioral self-regulation, affecting the capacity to make judgements and to control behavior’.

   [9] G17, 119. 

5. The evidence cited above supports the conclusion that Mr Moore’s difficult early life experiences and subsequent psychological impact may be a contributing factor to his offending. He had a disjointed upbringing, was adopted, lost his adoptive mother at a young age and then grew up in a household where his father drank to excess and was violent. These issues have been further complicated by Mr Moore’s cognitive impairments and mental health issues and exacerbated by substance abuse.

6. A risk assessment referenced in a sentencing assessment report dated 5 November 2019 by NSW Justice states that Mr Moore has been assessed ‘at a Medium risk of reoffending according to the Level of Service Inventory – Revised’.[10]

   [10] G18, 125.

7. The Respondent contends that Mr Moore has limited prospects of rehabilitation. It is argued that the attendance at programs cited by Mr Moore does not amount to evidence that he has engaged with programs that have adequately addressed his drug and alcohol abuse disorders which are the drivers of his violent offending. It is also noted that records indicate that shortly after entering immigration detention, Mr Moore requested assistance to continue abstaining from alcohol and attended six counselling sessions during April and May 2020. However, Mr Moore did not engage with any further counselling until 27 October 2020 when he asked about further programs he could attend and was advised by the counsellor that they mainly offered individual counselling which he refused.

   Conclusion as to Primary Consideration A

8. Mr Moore’s claim that he has taken significant steps to address his drug and alcohol issues are not entirely reassuring given the seriousness of his substance abuse which he submits is a key enabler of his offending. In his own words, Mr Moore ‘is not a bad guy’ when he is not drinking, but when he does consume alcohol, he is prone to blacking out and doing ‘stupid stuff’.

9. Ms Nasr’s report included a Treatment Plan which recommended inpatient drug and alcohol treatment or a comprehensive holistic approach to his substance use and recommends some community-based rehabilitation programs. Mr Moore has not completed either and I am not convinced on the evidence that he has rehabilitated to the extent that there is not a real risk of reoffending.

10. Nonetheless, I accept that he has not taken alcohol or drugs since his arrest, a period of nearly 14 months. Whilst his sobriety has not been tested in the community, a continued period of abstinence of this length does form a sound basis from which Mr Moore can pursue long-term rehabilitation.  It may stand him in good stead for future challenges and with intensive support may avert possible relapse. Mr Moore’s evidence that he wishes to turn his life around and does not wish to drink again is accepted as genuine as is his estimation that he is ‘95 per cent’[11] confident that he can continue to abstain in the community.

    [11] Transcript, 39.

11. Mr Moore’s prospects are substantially enhanced by the support that he has in place which will assist him in overcoming the challenges he faces in terms of accommodation, employment and overcoming his mental health and substance abuse issues. He also submits that his mental health has improved and that he is ‘in a good place now’.[12] I accept his willingness to take advantage of the support available to him and continue to seek treatment, based in part on his evidence and the fact that he has willingly done so in the past.  

    [12] Ibid 33.

12. Given his criminal history, mental health issues and substance abuse, I accept the Respondent’s contention that there is a risk that Mr Moore will reoffend. At the hearing, Mr Moore himself conceded that when he is intoxicated, he blacks out and does things which he would not do when sober. I note however that his behavior since he has been in prison and immigration detention has been uneventful. Individual management plan reviews conducted whilst he has been in detention indicate he ‘has not caused any issues’ and was ‘polite when spoken to by staff and appears to have nil issues with his fellow detainees’.[13]

    [13] TB7, 293.

13. In conclusion, this primary consideration weighs against the revocation of the mandatory cancellation of Mr Moore’s visa. However, having regard to his difficult circumstances, mental health problems, insight into his offending, genuine remorse and the support network he has in place, this consideration is afforded less weight than it would otherwise be.

    PRIMARY CONSIDERATION B – BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

14. Mr Moore does not have any minor children of his own, but he does have a half-brother who is eight years old and an 18 year old step-sister. Mr Moore states that prior to his imprisonment, he would visit his half-brother every week or two and continues to maintain their relationship through phone calls.

15. He maintains that he wishes to stay in Australia to support his half-brother. He claims to be a ‘big brother figure’.

16. The Respondent submits that this consideration should be given limited weight in circumstances where they are cared for by their parents and Mr Moore does not have any financial or other responsibility for their care.

17. It is accepted by the Tribunal that Mr Moore has a genuine meaningful relationship with his half-brother and would play a positive role in the future.  Whilst his half-brother would be affected by a decision in relation to Mr Moore’s visa, Mr Moore’s relationship is non-parental and he has not seen his half-brother whilst he was in prison and then detention. 

18. This consideration weighs in favour of Mr Moore but is afforded limited weight in light of the considerations identified above.

    PRIMARY CONSIDERATION C – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

19. Paragraph 13.3 of the Direction provides:

    (1)  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 not revoke the mandatory visa cancellation of such a person. 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 hold a visa. Decision-makers should have due regard to the Government's views in this respect.

20. In FYBR v Minister for Home Affairs [2019] FCAFC 185, the Full Federal Court decided by majority that it is not for the decision-maker to assess what the expectations of the Australian community are for the purpose of applying this consideration. Rather, the expectations of the community that decision makers are required to consider are those set out at paragraph 11.3 of Direction 65, the direction considered in that case which is analogous to sub-paragraph 13.3(1) of the Direction.

21. Having regard to sub-paragraph 13.3(1) and the principles set out in paragraph 6.3 of the Direction, I am satisfied that the Australian community expects that a non-citizen will be ‘law-biding’ while living in Australia and will generally ‘forfeit the privilege of staying’ in Australia if they frequently commit serious crimes of a violent nature.

22. Considering the extent, frequency and nature of the Applicant’s offending, set out earlier in this decision, in the Tribunal’s opinion this consideration weighs against revoking the cancellation of his visa.

    OTHER RELEVANT CONSIDERATIONS SET OUT IN THE DIRECTION

23. I now turn to other relevant considerations set out in the Direction.

    Strength, nature and duration of ties

24. Mr Moore arrived in Australia in 2009 when he was 13 years of age. He has close family ties to his adoptive father and half-brother. Mr Moore’s family of origin has been referred to above. He has a difficult relationship with his adoptive father and step-mother and a health record from 14 May 2020 records that he was open about his poor relationship with his step-mother and his decision at that point to sever ties with his family because he perceived them as people that have never been there for him. It records that he ‘became tearful’ when speaking about this because it means he has to cut all ties for now with his eight year old half-brother as well.[14]

    [14] TB5, 260.

25. He conceded at the hearing that the relationship between he and his father was ‘not the greatest’ but expressed a determination to mend the relationship. He said that his father was ‘sick of [Mr Moore] getting into trouble’. Whilst his father told him that he loves him, worries about him and wants the best for him, he was unwilling to provide any assistance in relation to the cancellation of his visa.

26. Mr Moore has provided evidence of a considerable support network in Australia. Written references before the Tribunal indicate that should he be released back into the community he will have the benefit of access to Mission Australia AOD (Alcohol and Other Drug) counselling. Jessica Taylor, who is a case manager in the AOD Continuing Coordination Care Program, wrote that she has been speaking weekly to Mr Moore and that should he be released Mission Australia will help him to address his substance abuse issues and assist with other measures including living support and helping him to find work.

27. Timothy Heffernan is a friend who views Mr Moore as his younger brother. He himself has experienced homelessness and is able to provide Mr Moore support and weekend accommodation. In a supplementary statement he confirmed that Mr Moore would be able to reside long-term with a friend of his. 

28. Another friend, Benjamin Bevins, met Mr Moore at high school. He says that he is worried for Mr Moore’s future should he return to New Zealand and particularly the potential for him to become involved in gang activity. He is prepared to support Mr Moore with his drug and alcohol issues and states that their friendship circle is committed to supporting Mr Moore. He personally is willing to do so financially.

29. Jim Philp is the father of Mr Moore’s school friend Jack Philp. He writes that he and his son have developed a supportive relationship with Mr Moore and that Mr Moore has come to appreciate that he and his wife want the best for him. He commits he and his son to supporting Mr Moore to get back on his feet, including through the provision of temporary accommodation if required.

30. Mr Moore told the Tribunal he worries about being alone should he be returned to New Zealand. Having stated during the hearing that he usually drinks alone, the Tribunal infers that this may potentially jeopardise his rehabilitation. 

31. I find that this consideration weighs strongly in Mr Moore’s favour. Should he be removed he will lose access to supportive friends and the prospect of assistance from community organisations which have an established relationship with him.  Mission Australia is prepared to assist him in rehabilitating and re-establishing himself should he be released back into the community. Additionally, should Mr Moore be located in New Zealand, the physical distance would be an additional barrier between he and his family in Australia which would be expected to make maintaining a relationship substantially more difficult.

    Extent of impediments if removed

32. Mr Moore has extended family in New Zealand some of whom he had met prior to coming to Australia. He is no longer in contact with any of his biological family members in New Zealand and claims not to have spoken to any relatives in New Zealand since coming to Australia, with the exception of some of his cousins. He believes that his cousins are gang members and recalls his father was worried about him becoming involved with the ‘gang culture’. Prior to arriving in Australia, he attended parties at which gang members were present.

33. It is submitted on his behalf that the Black Power Gang has been associated with shootings, public brawls and drug activity. It is submitted that the threat of gang activity in the context of Mr Moore’s cognitive impairment may leave him open to exploitation.  

34. The Respondent accepts that Mr Moore would face difficulties in re-establishing his life in New Zealand but notes that he would be eligible for social security benefits to which he is not entitled in Australia.

35. Mr Moore contends that he will suffer significant hardship should he be deported to New Zealand. He suffers from a cognitive impairment and mental health issues and being separated from his support network will be a source of both emotional and practical hardship for him. Mr Moore struggles to fill in forms and articulate his needs to service providers and requires assistance in these situations. This is confirmed by Professor Hayes who observed that Mr Moore’s cognitive impairment makes him reliant on others.[15]

    [15] Applicant’s Statement of Facts, Issues and Contentions, 24.

36. I accept that Mr Moore would be expected to have some difficulty establishing himself in New Zealand, which will be made more challenging by his personal circumstances and lack of an existing support network. This factor is to some extent mitigated by the fact that he would be eligible for social security assistance in New Zealand.  He would also have access to community and health services which are comparable to those in Australia.

37. Accordingly, this consideration weighs in Mr Moore’s favour.

    CONCLUSION – IS THERE ANOTHER REASON TO REVOKE THE ORIGINAL DECISION?

38. The seriousness of the offences of which Mr Moore has been convicted means that the need to protect the Australian community from the risk of further criminal or other serious conduct weighs against revocation of the cancellation decision.

39. I consider that the community would have some tolerance for the risk that Mr Moore may reoffend given the age at which he arrived in Australia, his struggles with his mental health, cognitive difficulties and general upbringing. He is also still relatively young but as he observed, he is now an adult required to take responsibility for his own actions. These factors reduce the weight I afford to the first primary consideration.

40. The best interests of Mr Moore’s half-brother weighs in his favour, but this consideration is afforded limited weight as he is not the parent or primary carer of the children.

41. The expectations of the Australian community weigh against revoking the cancellation, but this consideration is afforded less weight given Mr Moore’s relatively short sentence and the young age at which he arrived in Australia.

42. The strength, nature and duration of Mr Moore’s ties to Australia weigh substantially in favour of revoking the cancellation decision. His support network will be critical for his continued rehabilitation and re-integration into the community. Similarly, a lack of an existing support network and his difficulties in integrating as a consequence of Mr Moore’s mental health and cognitive issues means that the impediments to removal also weigh in favour of revoking the cancellation decision.

43. As the weight of the factors in favour of him retaining his visa outweigh the reasons not to revoke the mandatory cancellation, the Tribunal has concluded that Mr Moore should be given an opportunity to stay in Australia and for this reason the decision under review will be set aside.  

    DECISION

44. For the reasons outlined above, the Tribunal decides that the decision under review, being the decision of a delegate of the Respondent on 29 September 2020 not to revoke the mandatory cancellation of the Applicant’s Subclass 444 Special Category (Temporary) visa pursuant to subsection 501(3A) of the Migration Act 1958 (Cth), is set aside and substituted with a decision to revoke the mandatory cancellation of Mr Moore’s visa.

I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

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

Associate

Dated: 22 December 2020

Date of hearing:	2 December 2020
Solicitors for the Applicant:	Ms J Sanders, The Shopfront Youth Legal Centre
Solicitors for the Respondent:	Mr T Hillyard, Sparke Helmore Lawyers