Moran and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 21
•12 January 2022
Moran and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 21 (12 January 2022)
Division:GENERAL DIVISION
File Number: 2021/8025
Re:Justin Moran
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member S Burford
Date:12 January 2022
Place:Perth
The Non-Revocation Decision, being the decision of the delegate of the Respondent, dated 20 October 2021, not to revoke the cancellation of the Applicant’s Special Category (Class TY, Subclass 444) visa is affirmed.
........[Sgd]................................................................
Member S Burford
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – substantial criminal record – extensive offending history – Direction No 90 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – expectations of the Australian community – strength, nature and duration of ties to Australia – Applicant is a 33-year-old man who arrived in Australia as an infant – extent of impediments if returned to New Zealand – Non-Revocation – Decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 5CB, 5G, 198, 499(1), 499(2A), 500(1)(ba), 500(6B), 500(6L), 500(6H), 500(6J), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(3), 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii)
CASES
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CZCV and Minister for Home Affairs [2019] AATA 91
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456
FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
Nigro v Secretary to the Department of Justice (2013) 41 VR 359
Paerau v Minister for Immigration and Border Protection [2014] FCAFC 28
RQRP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 266
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Uelese v Minister for Immigration and Border Protection [2015] HCA 15
WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117
Webb v Minister for Home Affairs [2020] FCA 831
SECONDARY MATERIALS
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)
‘Department of Home Affairs (Cth)’, Outward Travel Restrictions Operative Directive (Web Page) < Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014)
Minister for Immigration, Citizenship and Multicultural Affairs, Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (8 March 2021) – paras 4(1), 5.1, 5.1(3), 5.1(4), 5.2, 5.2(2), 5.2(3), 5.2(4), 6, 7, 8, 8(1), 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(b)(i), 8.1.1(1)(b)(ii), 8.1.1(1)(b)(iv), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.2, 8.1.2(2)(b), 8.2, 8.2(2)(b), 8.2(3), 8.2(3)(a), 8.2(3)(b), 8.2(3)(c), 8.3, 8.3(3), 8.3(4), 8.3(4)(a), 8.3(4)(b), 8.3(4)(c), 8.3(4)(d), 8.3(4)(f), 8.3(4)(g), 8.4, 8.4(1), 8.4(2), 8.4(2)(a), 8.4(2)(b), 8.4(2)(c), 8.4(2)(d). 8.4(2)(e), 8.4(2)(f), 8.4(3), 8.4(4), 9, 9(1)(a), 9.1, 9.1(1), 9.2, 9.3, 9.4.1, 9.4.1(1), 9.4.1(2)(a), 9.4.1(2)(b), 9.4.2
Protocol Relating to the Status of Refugees, opened for signature 31 July 1967, 606 UNTS 267 (entered into force 4 October 1967)
Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, GA Res 44/128 (15 December 1989, entered into force 11 July 1991)
‘Unite Against COVID-19’, New Vaccination Requirement for Non-Citizen Travellers to New Zealand (Web Page, 3 October 2021) < FOR DECISION
Member S Burford
12 January 2022
INTRODUCTION
The Applicant is a 33-year-old citizen of New Zealand. He first arrived in Australia with his mother and siblings on 7 September 1988 when he was five months old.[1] He departed Australia on 1 October 2008 and returned on 7 October 2008 when he was granted a Special Category (Temporary) (Class TY, Subclass 444) visa (the Applicant’s visa).[2] This is the visa which is the subject of this application.
[1] R2, G15, page 118.
[2] R2, G15, page 118; G16, page 119.
On 3 September 2020, the Applicant was convicted in the Perth Magistrates Court of Western Australia for a number of offences and received a total effective sentence of 12 months’ imprisonment for the offences.[3] He was made eligible for parole, but he was denied release on parole on 30 November 2020.[4] He completed his full sentence on 1 July 2021 and was transferred to immigration detention.[5] The Applicant is currently in immigration detention at Yongah Hill Immigration Detention Centre.
[3] R2, G4, pages 29-30; G6, pages 38-39.
[4] R3, page 193.
[5] R3, page 209.
On 21 October 2020, the Applicant’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the MigrationAct) on the basis that he had a substantial criminal record within the meaning of s 501(6)(a) of the Migration Act and was serving a sentence for imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a state or territory (the Cancellation Decision).[6] The Applicant requested revocation of the Cancellation Decision on 23 October 2020.[7]
[6] Migration Act ss 501(6)(a) and 501(7)(c); R2, G16, pages 119-124.
[7] R2, G9.
On 20 October 2021, a delegate of the Respondent decided, under s 501CA(4) of the Migration Act, not to revoke the Cancellation Decision (the Non-Revocation Decision).[8] The Applicant was notified of the decision by email to his authorised representative.[9] The Tribunal notes that a the copy of the Form 956 appointing Mr Doumanis as his representative on 29 March 2021 was provided to the Tribunal.[10] No issue regarding the timing or manner of notification of the Non-Revocation Decision was raised before the Tribunal.[11]
[8] R2, G3.
[9] R2, G3.
[10] R2, G14, pages 103-105.
[11] A1, page 3.
The Applicant lodged his application for review of the Non-Revocation Decision on 29 October 2021.[12] The application before the Tribunal is for review of the Non-Revocation Decision. His application was made in accordance with s 500(1)(ba) of the Migration Act, which allows applications to be made to the Tribunal for review of decisions not to revoke a decision to cancel a visa made under s 501CA(4) of the Migration Act. On the material before it, the Tribunal is satisfied that the application was lodged within time, pursuant to s 500(6B) of the Migration Act and that the Tribunal has jurisdiction to review the Non-Revocation Decision.
[12] R2, G2.
The issues for determination by the Tribunal are whether it is satisfied that the Applicant passes the character test (as defined by s 501(6) of the Migration Act)[13] and, if not, whether it is satisfied that there is another reason why the decision to cancel the Applicant’s visa should be revoked.[14]
[13] Migration Act s 501CA(4)(b)(i).
[14] Migration Act s 501CA(4)(b)(ii).
For the reasons below, the Tribunal has decided that the correct and preferable decision is affirm the decision under review.
BACKGROUND
As noted above, the Applicant came to Australia in 1988 when he was five months old.[15] He has only departed Australia on two occasions since arriving here, from 7 to 22 November 1991, and from 1 to 7 October 2008.[16]
[15] R2, G15, page 118.
[16] R2, G15, page 118.
He travelled to Australia with this mother and siblings following the breakdown of his parents’ marriage.[17] He has little to no contact with his father.[18] It was submitted that his mother was raped by a member of the New Zealand Police in the early 1980’s in New Zealand. There was evidence from the New Zealand Police that these claims have been corroborated and it is accepted that the police in New Zealand looked into these claims in 2007.[19] It was submitted that the family, including the Applicant, had suffered unresolved trauma arising from the assault on the Applicant’s mother.[20] The Applicant’s older brother committed suicide in February 2008.[21]
[17] R2, G11, page 68.
[18] R2, G11, page 68.
[19] R2, G11, page 67, G14, page 113.
[20] See for example R2, G11, page 66.
[21] R2, G14, page 112.
Following their arrival in Australia the Applicant’s family settled in Perth. The Applicant completed primary school where he was a Faction Captain and then School Captain. He went on to complete high school through to Year 11.[22] He has worked as a factory hand, sign writer and most recently as a house painter.[23]
[22] R2, G10, page 62.
[23] R2, G10, page 62.
The Applicant’s mother and sister remain living in Australia. The Applicant’s sister is an Australian citizen,[24] and the Applicant submitted his mother was in the process of obtaining citizenship.[25] He declared himself to be single in his request for revocation.[26] He has two nephews, Mstr S and Mr Mikaere Moran, who are his brother’s children. They are 16 and 18 years old respectively.[27] He has one goddaughter, Ms E, whose age was not included in the material provided. No supporting documentation regarding his mother, nephews or goddaughter’s migration status was provided to the Tribunal, however, the Tribunal accepts they reside in Australia on a permanent basis.
[24] R2, G11, page 71.
[25] R2, G9, page 51.
[26] R2, G10, page 55.
[27] R2, G14, page 112.
The Applicant has a record of approximately 70 offences dating back to February 2005, when the Applicant was a juvenile.[28] His record includes numerous traffic and driving offences, criminal damage offences, drug offences, stealing and breaches of bail and supervisory orders. The Applicant’s criminal history is provided in the annexure to this decision. The Applicant has also been the subject numerous violence restraining orders with respect to former girlfriends or partners and his mother.[29] He has been convicted of breaches of restraining orders on two occasions. The Applicant’s criminal and other conduct is considered further below.
[28] R2, G4, pages 29-32.
[29] R3, pages 424-425, 426, 427, 429, 431, 433, 434, 435, 437, 438.
On 6 August 2013, the Applicant was placed on an 18-month intensive supervision order (ISO) for offences of stealing. On 8 January 2014, the Applicant breached the ISO by reoffending by driving whilst under suspension. On 24 July 2014, the ISO was cancelled, and the Applicant was sentenced to a total effective sentence 12 month’s imprisonment for earlier stealing offences. That sentence was conditionally suspended for 12 months with a program and supervision requirement.[30]
[30] R2, G7, pages 41-43.
On 25 January 2017, the Applicant was sentenced to a total effective sentence of eight months’ imprisonment for a number of offences of driving while suspended and breaching bail.[31] He was made eligible for parole. On 13 March 2017, he was sentenced to three months’ imprisonment for possession of methamphetamine with that sentence to be served concurrently with his earlier sentence for which he was sentenced in January 2017.[32]
[31] R3, pages 179-182.
[32] R3, pages 176-177.
On 7 December 2018, the Applicant was sentenced to a term of imprisonment for eight months. That sentence was suspended for 16 months.[33] Between 21 February 2019 and 2 July 2020 he committed a further 21 offences including stealing and burglary, driving while suspended, criminal damage, drug possession, unlicensed firearm/ammunition possession and breaching a violence restraining order and breaching a suspended imprisonment order.
[33] R3, pages 172-175.
As noted above, on 3 September 2020, the Applicant was convicted of:
·Breach of Bail (Fail to appear soon after);
·Burglary and commit (two counts);
·Possess a prohibited drug (Methylamphetamine);
·No authority to drive suspended (four counts);
·Without lawful excuse trespassed on a place;
·Criminal Damage or Destruction of property; and
·Possession of stolen or unlawfully obtained property.
The Applicant was sentenced a total effective term of 12 months’ imprisonment for these offences in addition to a global fine of $1000 (for the offences attracting a fine).[34] Ten of the 16 offences were committed while the Applicant was subject to the suspended imprisonment order.[35]
[34] R2, G6.
[35] R2, G6, page 36.
The Tribunal notes that following the Applicant’s conviction there was some correspondence between the Department and the Applicant’s sister confirming his visa status and that of his family members.[36] This was prior to the Cancellation Decision. It appears the purpose of these inquiries was to confirm the Applicant was not a citizen by descent, though it is not clear what gave rise to this enquiry. In any event, there is no information before the Tribunal to suggest that the Applicant is a citizen of Australia and no submissions to this effect were made.
[36] R2, G11, pages 72-74.
The Cancellation Decision was made on 21 October 2020.[37] The Applicant was notified of the decision by hand at Wooroloo Prison Farm, and was advised that he could make representations to seek revocation of the Cancellation Decision.[38] No copy of a signed receipt of the notification was provided to the Tribunal, however representations seeking revocation of the decision were made on 23 October 2020.[39] Further documents were provided on 19 November 2020, 13 March 2021 and 1 July 2021, including in response to follow-up correspondence from the Department.[40]
[37] R2, G16.
[38] R2, G16.
[39] R2, G9, G10, G11.
[40] R2, G11, G12, G14.
On 25 May 2021, the Department wrote to the Applicant noting that on 15 April 2021, Direction No 90 had replaced Direction No 79, and summarised some of the matters referenced in Direction No 90, including the ‘new standalone primary consideration, making particular reference to behaviour defined as family violence’.[41] The letter also referred to ‘other forms of unacceptable behaviours against vulnerable members of the community’, in addition to those in Direction No 79. The Applicant was invited to comment on Direction No 90, however, the letter noted that information already provided would be considered under the new Direction No 90. The Applicant was also invited to comment on further information relevant to the decision of whether or not to revoke the Cancellation Decision.[42] The Tribunal notes this letter was also delivered to the Applicant by hand at Wooroloo Prison Farm, notwithstanding the apparent appointment of his representative on 29 March 2021. It appears from the material that the Applicant’s representative raised this with the Department and that further material was provided, or resubmitted, by the Applicant’s representative in response to the letter on 1 July 2021.[43]
[41] R2, G14; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs: Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018) (Direction No 79); Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (8 March 2021) (Direction No 90).
[42] R2, G14.
[43] R2, G14, pages 98-117.
On 20 October 2021, the delegate decided not to revoke the Cancellation Decision.[44]
[44] R1, G3.
Pursuant to s 500(6L) of the Migration Act, the 84-day timeframe for the Tribunal to make a decision on the application for review ends on 12 January 2022.
THE HEARING
The hearing was held on 22 December 2021 at the Tribunal Registry in Perth. The Applicant appeared by videoconference from Yongah Hill Immigration Detention Centre. The Applicant was represented by Mr Doumanis of E-migration Australia, who appeared by videoconference from Indonesia. The Respondent was represented by Ms Jones-Bolla of Sparke Helmore Lawyers, who appeared in person.
The Tribunal notes that there were issues with the connection to Mr Doumanis at one point which were resolved quickly. The Tribunal considers that there were no significant issues with communication during the hearing and that all parties were able to fully participate in the hearing without any impediments caused by the conduct of the hearing occurring via videoconference.
Prior to the hearing, the Applicant’s representative filed a Statement of Facts, Issues and Contentions on 26 November 2021. He also submitted two unsigned documents which were titled ‘witness statement’: one from his sister Theresa Moran and one from his mother, Monica Moran. The documents each indicated that they wished ‘to discuss the following’ with the Tribunal and included a short list of dot points outlining the evidence they wished to address. The Tribunal notes that Tribunal records indicate the Respondent foreshadowed they would object to these witnesses being called unless statements of the witnesses’ evidence were filed two days prior to the hearing.[45] At the commencement of the hearing, the Applicant’s representative indicated the Applicant was not seeking to call any witnesses and were withdrawing the witness statements provided.[46] Accordingly, the brief statements were not admitted into evidence. Later in the hearing the Applicant’s representative indicated, with respect to the Applicant’s mother, that she was not called due to concerns regarding her age and stress the process might place on her.[47] The Tribunal notes those proposed witnesses both provided letters to the Department in support of the request for revocation.[48] The Tribunal has taken that material into account and further consideration of that material is detailed below.
[45] Migration Act s 500(6H) and 500(6J).
[46] Transcript, page 3.
[47] Transcript, page 52.
[48] R2, G11, pages 66 and 68.
On 20 December 2021, which was less than two clear business days prior to the scheduled hearing, the Applicant’s represented provided to the Tribunal and severed on the Respondent, five further documents.[49] Two of these documents were already contained in the G-Documents.[50] The others were a letter from the Applicant’s mother dated 8 October 2021, a statutory declaration from the Applicant dated 13 October 2021 and a letter from the Department of Housing dated 30 August 2021. At the commencement of the hearing the Tribunal noted it appeared the documents had not been provided in compliance with the ‘two-day rule’.[51] The Respondent indicated that it objected to the Tribunal taking the documents into account on that basis. When asked if the Applicant was seeking to rely on the documents, his representative indicated he was seeking to do so ‘just by reference’ noting that ‘most of it has been covered in the G documents’.[52]
[49] Migration Act s 500(6J).
[50] R2, G14, pages 112-113.
[51] Migration Act s 500(6J).
[52] Transcript, page 4.
The Tribunal notes that the Applicant’s representative had been put on notice at the directions hearing before the Tribunal, and in material confirming the directions made for preparation of the matter for hearing, as to the significance of the two-day rule, and the need to provide statements from witnesses and evidence in compliance with the relevant provisions of Migration Act to avoid a situation where the Tribunal was unable to take account of oral evidence or documents.
Having regard to all the circumstances, including the decision by the Applicant not to press for the inclusion of the documents, the dates on which the documents were apparently created or received by the Applicant, the scheduled timing of the hearing and the lack of any explanation for their late service on the Respondent in breach of the orders made by the Tribunal for the preparation of the application for hearing, the Tribunal determined it would not be appropriate to adjourn the hearing to enable the documents to be served in compliance with the two-day rule. Accordingly, the Tribunal has not had regard to the documents in reaching a decision on the application. The three documents were marked MFI 2 to 4.[53]
[53] The documents were originally marked as exhibits for identification purposes only. This was amended during the proceedings to the documents being marked for identification (MFI). The parties did not object to this approach.
The following documents were admitted into evidence:
·Applicant’s Statement of Facts, Issue and Contentions, dated 15 November 2021 (Exhibit A1);
·Respondent’s Statement of Facts, Issues and Contentions, dated 10 December 2021 (Exhibit R1);
·Section 501G documents, labelled G1 to G17, comprising pages 1 to 147 (Exhibit R2); and
·Respondent’s Summons Bundle, comprising pages 1 to 509 (Exhibit R3).
The Tribunal notes that the Applicant provided written submissions, additional statements, letters and other supporting material to the delegate prior to the Non-Revocation Decision being made.[54] This material was admitted into evidence as part of Exhibit R2.
[54] R2, G9, G10, G11, G12, G14.
At the hearing, the Applicant made submissions via his representative, gave evidence and was cross-examined.
During the cross-examination, when the Applicant was being asked questions about a violence restraining order made for the protection of his mother and the police records associated with the incident which gave rise to the order being made. The Applicant was asked whether he had ever threatened to hurt or kill his mother. He declared he had not, became agitated, swore, and abruptly walked out of the videoconference room at the detention centre declaring:[55]
APPLICANT: Fuck all this shit. I'm fucking over it. See you later.
MEMBER: Okay. All right. We're going to take an adjournment. Let's take an hour for lunch.
APPLICANT: No, fuck it. Don't worry about it. No.
[55] Transcript, pages 41-43.
Following the Applicant exiting the videoconference room at the detention centre, the Tribunal adjourned the matter for a lunch break and asked the Applicant’s representative to make contact with the Applicant and seek instructions on whether he intended to have any further involvement in the hearing. The Tribunal suggested the Applicant should be encouraged to have lunch and consider re-joining the hearing.
The Tribunal also made inquiries at the detention centre. On recommencement of the hearing, the Tribunal indicated that according to its records (MFI1), a security officer at the detention centre advised the Tribunal hearing attendant that he had spoken to the Applicant and that the Applicant had refused to return to the videoconference room. The Applicant’s representative confirmed that the Applicant had not responded to his attempts to make contact.
The Tribunal sought submissions from the parties on how the hearing should proceed. A brief adjournment was taken to enable instructions to be sought. On return, the Respondent submitted that, while it was within the Tribunal’s discretion to adjourn the hearing to a later date, the Tribunal was required to deliver a decision within the statutory time frame (albeit the written reasons for such a submission may follow outside that timeframe). The Respondent submitted that the Applicant had been provided with an opportunity to appear before the Tribunal to present evidence and make submissions and had chosen to cease participating in the hearing, and as such had been afforded procedural fairness without the hearing being adjourned to a later date.[56] The Respondent also noted that it had not been afforded the opportunity to complete cross-examination of the Applicant, and that this should be taken into consideration in weighing the evidence offered by him.
[56] Transcript, page 46-47.
The Applicant’s representative submitted that due to the timing of the matter in leadup to the Christmas holiday and having regard to the timeframe for decision, he was not seeking an adjournment as he would not be available in any event to attend a further hearing ‘within a reasonable time period’ and not until 10 January 2022. The Applicant’s representative indicated that the Applicant had been provided procedural fairness and there was no objection to concluding the proceedings on that day.[57]
[57] Transcript, page 48.
Having considered all the circumstances and the submissions from the parties, the Tribunal determined the hearing should proceed. The Tribunal considered the Applicant had been given an opportunity to present arguments and evidence and had chosen to disengage from the process during cross-examination. While this was very unfortunate, the Applicant was not compelled to continue to participate and had not given any indication he was seeking an adjournment to do so at a later date for any reason.
The hearing then proceeded in the absence of the Applicant.
As the Applicant refused to be further involved in the hearing, no further evidence was taken. No further witnesses were called by either party. Both the Applicant and Respondent’s representatives made detailed closing submissions before the Tribunal.
With respect to the Applicant’s decision to absent himself from the hearing during cross-examination, the Tribunal notes this significantly impacted the capacity of the Respondent to put to the Applicant matters arising from the summons material, which it was submitted were relevant to the Tribunal’s consideration of the application, and in particular the matters arising under Direction No 90. The Applicant’s absence also limited the Tribunal’s capacity to ask questions of the Applicant relevant to the Tribunal’s consideration of these matters. In this respect, the Applicant’s decision was extremely unfortunate as it limited the Tribunal’s capacity to draw out matters in respect to which he had offered limited evidence prior to the hearing. In this regard the Tribunal notes the Applicant has had several opportunities to put on evidence in support of his case, before the delegate and on review. He had the opportunity to call witnesses, give evidence and to make submissions. He was assisted by a Registered Migration Agent. In conducting the review the Tribunal is mindful of it’s obligations to consider the matters raised in Direction No 90. However, it is for an Applicant to make their own case.[58]
[58] See the discussion of the Tribunal’s role in Paerau v Minister for Immigration and Border Protection [2014] FCAFC 28 and Uelese v Minister for Immigration and Border Protection [2015] HCA 15 (6 May 2015).
With respect to the material on which the Respondent sought to rely from the summons material, the Tribunal regards that that Applicant’s decision to make himself unavailable for further cross-examination impacts the weight the Tribunal would otherwise apply to that third party material. The Tribunal considers that the Respondent is entitled to rely on this material in circumstances where it was unable to put the material to the Applicant due to the Applicant’s decision not to participate further in the hearing, and for the material to be given appropriate weight in the Tribunal’s considerations. The evidence and submissions offered by the Respondent are considered further below.
LEGISLATIVE FRAMEWORK
Migration Act
The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision.
These powers generally involve consideration of whether a person passes the character test, and if they do not, consideration of whether there is another reason that the decision to cancel or refuse a visa should be revoked.
The character test is set out in s 501(6) of the Migration Act and essentially deems that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)
the person has a substantial criminal record (as defined by
subsection (7)); …
(Original emphasis.)
A ‘substantial criminal record’ is relevantly defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)
the person has been sentenced to a term of imprisonment of
12 months or more; …
(Original emphasis.)
Under s 501(3A) of the Migration Act, the Minister must cancel the visa of certain incarcerated persons, if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record as a result of being sentenced to a term of imprisonment of more than 12 months.
Additionally, under s 501(3A) of the Migration Act, the person must be 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.
If a visa is cancelled under s 501(3A), the Minister must give the person a written notice inviting them to make representations about revocation of the original decision.[59] If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the original decision if satisfied that the person passes the character test or that there is another reason why the original decision should be revoked. Making a revocation decision under s 501CA requires the decision-maker to first decide whether the person passes the character test under s 501CA(4)(b)(i) and, only if satisfied that the person does not, to then decide under s 501CA(4)(b)(ii) if there is ‘another reason’ why the original decision should be revoked.[60]
[59] Migration Act s 501CA(3).
[60] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
Direction No 90
The Tribunal is required to form a state of satisfaction as to whether there is ‘another reason’ why the original decision should be revoked, reasonably and on a correct understanding of the law.[61] By reason of s 499(2A) of the Migration Act, in doing so it must comply with written directions about the performance of its functions or the exercise of those power which are given by the Minister pursuant to s 499(1) of the Migration Act. With respect to the exercise of power under s 501 and 501CA the current written direction given by the Minister is Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (Direction No 90) which was made on 8 March 2021.[62]
[61] FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [63] (Thawley J); Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 (Halley J) at [119].
[62] Direction No 90 commenced operation on 15 April 2021, replacing the previous Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA which was revoked on the same date; Direction No 90 paras 2-3.
The purpose of Direction No 90 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[63] In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction No 90 where relevant to the decision.[64]
[63] Direction No 90 para 5.1(4).
[64] Direction No 90 para 6.
Paragraph 5.1 of Direction No 90 sets out ‘[o]bjectives’, with para 5.1(3) being relevant to the Non-Revocation Decision currently before the Tribunal:
(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 a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction No 90 sets out ‘[p]rinciples’ which must be taken into account by decision-makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’ and are expressed as follows:
(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)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian Community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by any other non-citizens who have been participating in, and contributing to the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(5)Decision makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Informed by the principles set out in para 5.2 of Direction No 90, the Tribunal must take into account the primary considerations listed in para 8, and the other considerations listed in para 9, where relevant having regard to the specific circumstances of the case, in deciding ‘whether to revoke the mandatory cancellation of a non-citizen’s visa’.[65]
[65] Direction No 90 para 6; see also the definition of ‘decision-maker’ in para 4(1) of Direction No 90, which includes the Tribunal.
In making a decision under s 501CA(4), the primary considerations to be taken into account by the Tribunal are:[66]
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the best interests of minor children in Australia; and
(d)expectations of the Australian community.
[66] Direction No 90 para 8.
The ‘other considerations’ that the Tribunal must take into account, insofar as they are relevant to the matter, include (but are not limited to):[67]
(a) international non-refoulement obligations;
(b) extent of impediments if removed;
(c) impact on victims;
(d) links to the Australian community, including:
(i)strength, nature and duration of ties to Australia; and
(ii)impact on Australian business interests.
[67] Direction No 90 para 9.
Further guidance as to how a decision-maker is to apply the considerations in
Direction No 90 can be found in para 7, which provides that:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
THE APPLICANT’S OFFENDING HISTORY
The Applicant’s offending history is set out in the Australian Criminal Intelligence Commission ‘Check Results Report’ dated 7 October 2020,[68] the Western Australia Department of Justice, Corrective Services ‘Sentence Summary – Offender’ report, dated 19 October 2020,[69] and the Western Australia Police Force ‘History for Court – Criminal and Traffic’ complied on 12 November 2021.[70] A detailed list of the Applicant’s offences is provided in the annexure to this decision.
[68] R2, G4, pages 29-32.
[69] R2, G8, pages 44-47.
[70] R2, G4; R3, pages 359-369.
The Applicant has been convicted of a number of offences including (with offence dates):
·Violence or violence related offences: Unlawful Wounding (15 May 2008); Unlicensed Person Possess Firearm/Ammunition (13 April 2019); Breach of Violence Restraining Order (30 May 2016, 13 May 2019);
·Property offences: Stealing (10 November 2006, 20 January 2011, 30 November 2011, 16 February 2012, 10 March 2012, 11 January 2017, 24 March 2019, 6 February 2020, 7 February 2020, 3 March 2020, 27 April 2020); Burglary and commit (3 March 2020, 27 April 2020, ); Criminal Damage (16 September 2006, 24 April 2007); Criminal Damage or Destruction of Property (16 April 2020); Possession of stolen or unlawfully obtained property (7 March 2020);
·Drug offences: Possess a prohibited drug (Methylamphetamine) (7 March 2020); Possess a prohibited drug (MDMA) (15 February 2008); Possessed drug paraphernalia in or on which there was a prohibited drug or plant (13 August 2015, 21 February 2019, 13 April 2019); and one offence as a juvenile, possess prohibited drug (result date 28 February 2005);
·Driving and traffic offences (including substance related driving offences): Driving with prescribed illicit drug (7 March 2020); No authority to drive (suspended) (18 September 2008, 30 December 2008, 8 January 2014, 16 December 2015, 17 March 2016, 29 August 2016, 28 September 2016, 24 January 2017, 6 November 2018, 11 February 2020, 3 March 2020, 7 March 2020); No authority to drive (Never held and disqualified) (28 May 2010); Exceed 0.08g alcohol per 100ml of blood (15 May 2008); No Driver’s Licence (cancelled – Disqualification Expired) (15 May 2008, 10 June 2008, 15 June 2008); Dangerous Driving (30 December 2008); Failed to Stop when Called Upon (20 February 2013); Reckless driving – dangerous to the public or any person (20 February 2013); Used an unlicensed vehicle (29 August 2016); Drove or permitted vehicle with false plate to be driven (11 February 2020); Failed to give driver identity information (2 July 2020);
·Disorderly conduct and other public conduct offences: Disorderly behaviour in a public place (16 February 2007, 10 March 2012); Travel on part of a conveyance not intended for passengers (24 April 2007); Possession of things for graffiti (15 February 2008); Without lawful excuse trespassed on a place (28 April 2020); and
·Offences involving public officers, police orders and court orders or sentences: Obstructing public officers (26 June 2009); Breach of Bail (,16 March 2012, 30 March 2012, 29 August 2016, 13 September 2016, 26 October 2016, 15 May 2020); Fail to Obey Order Given by an Officer (26 June 2009); Breach of Intensive Supervision Order (20 January 2011, 30 November 2011, 16 February 2012, 10 March 2012).
The Applicant has received terms of imprisonment (served and suspended), fines, disqualifications, and community-based orders for his offences.
The nature and seriousness of the Applicant’s offending and other conduct is considered further below.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Applicant conceded he does not pass the character test.
As noted above, the character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’, as defined by s 501(7). Relevant to the Applicant’s case, a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.[71]
[71] Migration Act s 501(7)(c).
The Tribunal finds that the Applicant was sentenced to a term of imprisonment of 12 months on 3 September 2020 and, as a result, has a ‘substantial criminal record’ as defined in s 501(7) of the Migration Act. Therefore, he does not pass the character test under s 501(6)(a) of the Migration Act.
Accordingly, the Tribunal is not satisfied that the Applicant passes the character test.
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the primary and other considerations contained within Direction No 90, there is another reason why the Cancellation Decision should be revoked.
The Applicant conceded he does not pass the character test and that his offending was serious. His primary contention in favour of the Cancellation Decision being revoked was that he has very strong ties to Australia having been raised here since he was an infant. The Applicant contends that the interest of his family members in Australia constitute another reason why the Cancellation Decision should be revoked, and that the relevant principles and considerations weigh in favour of revoking the Cancellation Decision. With respect to his request that the Cancellation Decision be revoked, the Applicant submitted, in summary, that:[72]
·He has been in Australia most of his life and calls Australia home;
·He is rehabilitated and will never reoffend;
·He wants to stay in Australia;
·His family and social network will be emotionally affected if he is removed;
·Multiple factors contributing to his misconduct and drug abuse including the passing of his immediate friends and family members, have been identified and rectified through counselling;
·He has no support in New Zealand and will suffer hardship if he is returned; and
·The impact of the Applicant’s mother's sexual assault by a police officer in New Zealand contributed a projected mistrust onto the Applicant against law enforcement, which the Applicant has now identified, and wishes to address through continued counselling upon release.
[72] A1, page 3.
The Applicant submitted that he was not making a claim that non-refoulment considerations arose with respect to his return to New Zealand, but that ‘he has concerns about what would happen if he were to return to New Zealand’.[73] The Applicant submitted that the considerations regarding Australian business interests and the impact of non-revocation on victims ‘did not arise on the material’.[74]
[73] A1, page 12.
[74] Transcript, page 57.
The Applicant also submitted that the COVID-19 pandemic was an ‘other consideration’ relevant to the Applicant’s circumstances. His submissions noted that the pandemic had led to restrictions on movement between Australia and New Zealand, which may impact the practicality of the Applicant’s removal, however the submissions conceded that ‘it cannot be said that the applicant’s removal will never be practicable’.[75]
[75] A1, page 15.
The Respondent submitted that there was not another reason why the Cancellation Decision should be revoked. In summary, the Respondent submitted:
·The Applicant’s offending should be considered very serious having regard, in particular, to the nature and frequency of the offending which has continued despite having received several terms of imprisonment and other penalties. Were the Applicant to reoffend, the nature of the harm which would be caused is serious and would involve significant physical, psychological and financial harm, such that the community would have little tolerance for any likelihood of reoffending. With respect to the risk of reoffending, there is insufficient evidence to establish the Applicant has rehabilitated and having regard to evidence of his repeat offending and unmet treatment needs, the Applicant presents an unacceptable risk of reoffending. The protection of the Australian community weighs very heavily against revocation;
·The Applicant’s offending included family violence against this mother, including by breaching a family violence order and engaging in criminal damage. The Applicant has not addressed the factors leading to this offending and this consideration weighs against revocation;
·The Applicant’s relationship with the minor children whose interests have been raised is non parental. On the evidence available, limited weight should be given to this consideration which should not outweigh the protection and expectations of the Australian community;
·The expectation of the Australian community weighs heavily against revocation having regard to the nature and circumstances of the Applicant’s offending;
·The Applicant’s personal circumstances indicate that while he may suffer some short-term difficulties on return to New Zealand, this would not preclude resettlement and the consideration of the extent of impediments if removed does not weigh in favour of revocation;
·While the Applicant’s links to the Australian community weigh in favour of revocation, they are not sufficiently compelling to outweigh other primary considerations, having regard to the lack of evidence that any of the Applicant’s connections in Australia would suffer insurmountable hardship or be emotionally impacted by the Applicant’s departure;
·Concerns regarding COVID-19 and its impact on the Applicant’s removal were unfounded and did not weigh in favour of revocation; and
·The consideration of non-refoulment was not relevant to the Applicant’s circumstances and there was no evidence of the impact of non-revocation on the victims of the Applicant’s offending, or on Australian business interests. These considerations were neutral.
Protection of the Australian Community
The first primary consideration focuses on the protection of the Australian community. Paragraph 8.1(1) of Direction No 90 provides that:[76]
(1)When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
[76] See also Direction No 90 para 8(1).
Paragraph 8.1(2) of Direction No 90 then provides that decision-makers should also give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
As noted above, the Applicant submitted that if the Cancellation Decision was revoked, his risk of reoffending would be low, and the protection of the Australian community would not require that his visa remained cancelled.
The Respondent contended that the protection of the Australian community weighed very heavily against revocation of the Cancellation Decision.
Nature and seriousness of the conduct
In considering the nature and seriousness of the Applicant’s criminal offending and other conduct to date, paragraph 8.1.1(1) of Direction No 90 provides that the Tribunal must have regard to:[77]
[77] See also Direction No 90 para 8.1(2)(a).
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
The Applicant’s offences are detailed above. In addition to the offences, the Respondent drew the Tribunal’s attention to police records with respect to incidents of alleged family violence by the Applicant. These are considered further below.
With respect to the nature and serious of the Applicant’s conduct, the Applicant conceded that ‘it is fair to state that the nature and seriousness of the applicants criminal conduct can be considered serious’.[78] However the Applicant submitted that: [79]
·A number of offences ‘are not as severe as the charges may appear to the decision maker’ due to the particular circumstances of the offences;
·Although there is a pattern of repeat offending, the Applicant has matured and is drug free, has attended counselling and has been an ‘exemplary inmate and detainee’; and
·The Applicant now has an awareness of the underlying causes of his offending and is willing to address them.
The Applicant submitted that these factors meant the consideration should weigh in favour of revocation of the Cancellation Decision.
[78] A1, page 8.
[79] A1, page 8.
The Respondent submitted that the Applicant’s offending should be viewed as very serious having regard to:[80]
·The fact that the Applicant has a conviction for a violent crime (unlawful wounding);
·He has been sentenced to more than one term of imprisonment. The Tribunal notes that sentences of imprisonment are a last resort in the sentencing hierarchy and are a reflection of the objective seriousness of offending. The Applicant’s offending has been frequent and displays a disregard for Australian laws over a period of 14 years;
·The effect of the Applicant’s repeated offending includes significant allocation of public resources;
·The Applicant’s significant criminal history involving a broad range of offences; and
·The Applicant’s offending has continued despite receiving suspended terms of imprisonment and community-based orders. The seriousness of his conduct in this regard is reflected in the comments of the Sentencing Judges’ with respect to his sentencing in January 2017 and September 2020.
[80] R1, pages 7-9.
The Tribunal notes it is required, pursuant to Direction No 90, to take into account a range of factors, including certain conduct which is to be regarded as ‘very serious’ or ‘serious’.[81] Relevantly, the Tribunal is to have regard to whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children or acts of family violence, without limiting the range of conduct that may be considered very serious.[82]
[81] Direction No 90 para 8.1.1(1)(a) and (b).
[82] Direction No 90 para 8.1.1(1)(a).
The Applicant was convicted of ‘Unlawful Wounding’ on 18 July 2008. The offence was committed on 15 May 2008.[83] The victim was the Applicant’s girlfriend or partner at the time, Ms Taryn Kent.[84] When asked about the incident, the Applicant testified that he had been in a fight in a bar with a person known to his partner. He said she had intervened, and he had hit her near the eyebrow ‘accidentally’. The police came, and the Applicant was charged. He said his jumper had been over his head and he was swinging to defend himself.[85] The Applicant plead guilty to the offence and was given a 12 month supervised community-based order.[86]
[83] R3, page 353.
[84] R3, page 353; Transcript, page 23.
[85] Transcript, page 23.
[86] R3, page 354.
The Tribunal considers the Applicant’s explanation for the offence to be at odds with the material before it. The Applicant claimed he hit Ms Kent accidentally, yet he plead guilty to the offence and was subject to bail conditions over a two month period, which included not contacting Ms Kent in any way or coming within 100 meters of her.[87] While there is limited other information available about the circumstances of the offence, the Tribunal considers these factors are not consistent with the explanation provided by the Applicant, at the hearing. In addition, the Applicant initially claimed not to have been under the influence of alcohol at the time of the offence, but later conceded that he was when it was put to him that he had been convicted of an offence on the same date of driving with a blood alcohol level of 0.08.[88]
[87] R3, page 354.
[88] Transcript, pages 23-24; R3, page 367.
There was a record of a further report to police and issuing of a 24-hour violence restraining order for the protection of Ms Kent in September 2008.[89] While the Applicant denied biting Ms Kent as reported in the police record of the incident, he accepted he may have smashed a glass coffee table as recorded in the report. He did not offer any explanation as to why the order had been issued for the protection of Ms Kent.[90]
[89] R3, page 433.
[90] Transcript, page 24; R3, page 497.
Applying Direction No 90, the offence concerning Ms Kent is properly characterised as ‘violent crimes’ and ‘crimes of a violent nature against women’ and are to be viewed very seriously. As dealt with in further detail in the discussion of the second primary consideration, it may also be properly characterised as ‘acts of family violence’ and is also to be viewed very seriously on that basis. However, the Tribunal considers that the making of a community-based order with respect to the offence suggests the offence was at the lower end of the spectrum for this kind of offending and should be considered on that basis in the context of the Applicant’s overall conduct and offending.
In determining the seriousness of the Applicant’s offending, the Tribunal must also consider whether the offences fall into other categories of serious offending, including: causing a person to enter into, or be a party to, a forced marriage;[91] crimes committed against vulnerable members of the community, such as the elderly and disabled, or government representatives performing their duties.[92] In the Tribunal’s view, none of the Applicant’s offending obviously falls within these categories such as would contribute to an assessment of the Applicant’s offending as serious. The Tribunal must also consider whether the Applicant provided false or misleading information to the Department, including by not disclosing any prior criminal offending,[93] or whether the Applicant has committed any crimes while in immigration detention.[94] There is no evidence before the Tribunal that the Applicant has done either.
[91] Direction No 90 para 8.1.1(1)(b)(i).
[92] Direction No 90 para 8.1.1(1)(b)(ii).
[93] Direction No 90 para 8.1.1(1)(f).
[94] Direction No 90 para 8.1.1(1)(b)(iv).
Paragraph 8.1.1(1)(c) of Direction No 90 requires the Tribunal to have regard to the sentences imposed by the courts. The Tribunal is also required to consider the frequency of the Applicant’s offending, and whether there is any trend of increasing seriousness.[95] In the Applicant’s case these considerations are closely linked in part because the frequent and repeated nature of the Applicant’s offending has been an aggravating factor in his sentencing.
[95] Direction No 90 para 8.1.1(1)(d).
Notwithstanding the fact the Applicant’s violent offending against a woman must viewed very seriously regardless of the sentence imposed, as noted above, the Tribunal considers that the community-based order imposed by the Court with respect to the unlawful wounding offence indicates that the offence was at the lower end of violent offences of that nature. The Tribunal notes that this is the only offence which could generally be described as a violent crime among the Applicant’s offences, and as such was not marked by any frequency. However, there was evidence the Applicant had multiple interactions with authorities in circumstances described in reports as ‘family violence’, including the issuing of multiple restraining orders by police and the courts with respect to women whom the Applicant told the Tribunal in cross-examination he was involved in relationships with at the time the orders were made (in addition to the orders made for the protection of his mother). While the Tribunal considers that the circumstance in which some of the orders were made may not have been considered to be serious where the orders were issued for a short term or ‘cooling off’ period of 24, 48 or 72 hours, five of the orders were issued by courts for periods of two to four years.[96] While a number of these were later revoked, the issuing of the orders by courts over a number of years and with respect to different individuals for protection from violence from the Applicant, causes concerns regarding his general conduct and contributes to an overall assessment of the Applicant’s conduct and offending as serious.
[96] Exhibit R3, pages 424, 427, 429, 431, 435.
With respect to the Applicant’s other offences, while he has a significant number of convictions, almost 70 over a 14-year period, a large proportion of the offences might be regarded as relatively minor, when viewed individually. However, the volume and repeated nature of many of the offences, including in defiance of clear orders made by the courts, leads to an overall assessment of the Applicant’s offending as serious. This was noted by the courts with what might be described as an air of frustration in the Applicant’s more recent court appearances for sentencing. In sentencing the Applicant on 3 September 2020 (giving rise to the Cancellation Decision), Magistrate Andretich described the Applicant’s offending as a ‘crime spree’.[97] The Magistrate noted that the Applicant’s offending was aggravated by the fact that 10 out of the 16 offences were committed while the Applicant was the subject to a suspended imprisonment order. Her Honour noted when discussing the Applicant’s need for personal deterrence:[98]
[y]ou were placed on a suspended imprisonment order. I’ve read the transcript when you placed on that order and it was made clear to you that you were really borderline as to getting a term of imprisonment at that time, and you were being given a chance, effectively, by being put on that suspended imprisonment order.
Taking account of all the circumstances, her Honour determined it would not be unjust to trigger the suspended sentence, imposing a period of seven months’ imprisonment for the suspended imprisonment order.
[97] R2, G6, page 36.
[98] R2, G6, page 37.
At the earlier sentencing hearing referred to by Her Honour, Magistrate Huston highlighted repeatedly to the Applicant that he could not drive when suspended. His Honour noted for the Applicant that as offending on that occasion, the sixth instance of driving without a licence for sentencing purposes and the tenth overall, had not been made worse by speeding, reckless driving or alcohol, the sentence would be suspended, but noted repeatedly that if he drove or committed any offence in the 16 months during which his prison sentence was suspended, he would be resentenced and could go to prison. His Honour noted:[99]
You were that close today. That’s for general deterrence, for others to understand, and for personal deterrence, for you to understand. You can’t drive when the court disqualifies you.
[99] R3, page 173.
When the Applicant was sentenced in January 2017, Magistrate De Vries observed:[100]
It seems to me that I am left with absolutely no alternative other than to impose a term of immediate imprisonment. It seems to me that there’s nothing that the courts can do to stop you from driving. You’ve had ample chances in the past with respect to this charge, and you have total disregard to court orders.
On that occasion, the Applicant was sentenced to four months’ imprisonment for each of the five counts of driving whilst under suspension. Four of these were to be served concurrently and one cumulatively with an effective sentence of eight months’ imprisonment for the offences. The Applicant also received one month prison sentences for each of the three counts of breaching bail. The Tribunal considers the imposition of a prison term in that instance was significant and reflected the seriousness with which the court viewed the Applicant’s offending behaviour, in particular his refusal to comply with court orders that he not drive.
[100] R3, page 180.
In July 2014, the Applicant appeared before the District Court with respect to breaking an intensive supervision order made on 6 August 2013. That order was made with respect to offences of stealing, including an indictable offence for stealing $19,636 worth of computer equipment, and several matters in the Magistrate’s Court (for stealing an iPhone, handbag, accessories and items from a shop). In that instance, Judge Wisbey noted that this was ‘an accumulation of offences of dishonesty that would generally bring with it a term of immediate imprisonment’.[101] However, his Honour noted that the Applicant was ‘given a chance because it was felt that there were prospects for you [him]’. The Applicant offended again by driving while suspended and while his Honour noted that as this was not a dishonesty offence it may not have been regarded extremely seriously with respect to the breach of the intensive supervision order, the Applicant had ‘a record of disregard of [his] obligations in respect to traffic matters which does make a significant breach of the intensive supervision order’. Accordingly, his Honour imposed a prison sentence of 12 months’ imprisonment for the indictable matter, six months’ imprisonment for stealing the iPhone, six months’ imprisonment for stealing the handbag and accessories, and six months’ imprisonment with respect to the other assorted items stolen from a shop. Those sentences were to be served concurrently and conditionally suspended for 12 months, with a program and supervision requirement. In sentencing the Applicant, the court noted a pre-sentence report, which was not before the Tribunal, which suggested the Applicant had ‘taken positive steps to turn [his] life around’.[102]
[101] R2, G7, page 42.
[102] R2, G7, page 42.
Notwithstanding the suspension of the terms of imprisonment imposed in this instance, the Tribunal regards the sentencing and the comments of the Sentencing Judge to reflect the serious nature of the Applicant’s dishonesty offences and his driving offences. The Tribunal further regards that the sentencing remarks demonstrated the efforts to which the courts went to provide the Applicant with opportunities to reform his behaviour and avoid prison over a number of years during which he continued to reoffend, this contributes to the overall assessment of his offending as serious.
The Tribunal notes the Applicant’s prior offences included possession of stolen property, traffic and drug offences. The Tribunal also notes the circumstances of those offences and the fact the Applicant received fines and community-based orders for those offences. In the Tribunal’s view, while those offences individually were at the lower end of the spectrum of offending, they indicate a serious disregard for the law and for the orders of the courts. The Tribunal considers that those offences contribute to the overall assessment of the Applicant’s offending and conduct as serious, though not significantly so on their own.
The Tribunal notes there are periods in the Applicant’s offending history where it appears he was able to abstain from offending. This most notably includes periods of almost a year in 2009-2010, around six months in 2010-2011 and around a year and a half in 2017-2018. However, on the evidence before the Tribunal, the Applicant’s offending from 2006-2020 could be described as frequent and persistent, and given the very serious nature of the breaches of the suspended imprisonment order and the large number of offences committed in the leadup to his sentencing in September 2020, reflect an escalation in his offending behaviour across this period. The Tribunal considers that the trend of increasing seriousness adds to the overall assessment of the Applicant’s conduct and offending, particularly in the sense that he repeatedly acted in a manner which suggested a disregard for the law and to the authority of the police and courts which had reprimanded him or put in place orders to protect others from his conduct. In this regard, the Tribunal notes the Applicant’s refusal to comply with police orders, breaches of court-imposed bail orders and failure to comply with community-based orders and suspended sentences. However, the Tribunal also acknowledges the Applicant spent periods in the community without offending (as noted above), demonstrating a capacity to live in a prosocial and law-abiding way in the community, this weighs somewhat in his favour.
With respect to the cumulative effect of repeated offending,[103] the Tribunal considers that this factor contributes significantly to the overall assessment of the seriousness of the Applicant’s offending given the repeated and frequent nature of his offending and the court of law enforcement resources required to deal with that offending, and in particular with efforts to provide the Applicant with an opportunity to rehabilitate and avoid prison. The repeat nature of his offending also has the cumulative effect of indicating that the Applicant has little or no regard for the law or is unable to control his offending behaviour.
[103] Direction No 90 para 8.1.1(1)(e).
The Tribunal notes that the Applicant has now acknowledged his offending was serious and expressed remorse for his actions. The Tribunal will consider the Applicant’s contrition and attempts at rehabilitation further below in the context of the Applicant’s likelihood of reoffending.
Overall, and having regard to para 8.1.1(1) of Direction No 90, the Tribunal finds the nature and seriousness of the Applicant’s offending to be very serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Paragraph 8.1.2 of Direction No 90 states, in part:[104]
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen 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:
i) information and evidence on the risk of the noncitizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
[104] See also Direction No 90 para 8.1(2)(b).
The Tribunal is required to assess the risk of harm the Applicant presents to the Australian community.[105] This requires, in part, an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct. It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[106]
[105] Direction No 90 para 8.1.2(2)(b); see also Senior Member Dr M Evans-Bonner in CZCV and Minister for Home Affairs [2019] AATA 91, [56].
[106] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] per Kenny J.
The Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice (2013) 41 VR 359 at 389 [111] (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 at 444–5 [94]–[95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117 at 124–5 [42]–[43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality, but also on the seriousness of the consequences if it does.
(Footnotes omitted.)
There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment. While these cases were considering character ground visa cancellations in the context of precursors to Direction No 90, the same considerations and principles are relevant to the current Ministerial Direction.
With respect to risk of reoffending, the Applicant’s representative’s submissions conceded that ‘the balance of the Applicant’s record … is of concern and evidences a disregard for the law generally’. The submissions noted that the Applicant’s mother ‘has attributed herself to blame for the Applicant’s previous disposition to law enforcement’ and has noted substantial changes she has observed in the Applicant. It was submitted that:[107]
Although there’s been a repetitive pattern of criminal activity, the significant change in his mentality, outlook, and ability to eradicate his issues with substance abuse, that he should not be considered a risk of reoffending if his visa cancellation decision was revoked ...
[107] Transcript, page 55.
The Respondent submitted that the nature of the harm that would be caused if the Applicant was to reoffend would be serious and likely to involve significant physical, psychological and financial harm to members of the Australian community, such that they would have little tolerance for any likelihood of reoffending in the future. The Applicant’s lengthy and varied criminal history means that a broad range of harm may be caused if the Applicant were to reoffend. These factors mean any risk of committing further offences is unacceptable.
With respect to the likelihood of the Applicant reoffending, the Respondent contends that there is insufficient evidence to persuade the Tribunal that the Applicant has rehabilitated. The Respondents submitted, in summary, that:[108]
·The Applicant has a lengthy history of breaching supervision orders suggesting that he does not respect lawful authority and from which it can be inferred he may not place a great deal of value on not breaking the law in the future if he were permitted to remain in Australia;
·There was limited evidence that the Applicant had attended programs to address the underlying causes of his offending, including drug and substance abuse or psychological trauma arising from his brother’s death or his mother’s trauma;
·The Applicant had not demonstrated his rehabilitation in the community;
·The Applicant had been given multiple opportunities to rehabilitate by way of supervision orders and suspended sentences, but had continued to offend in violation of those orders;
·The Applicant’s parole was cancelled in June 2017, following a failure to attend supervision;
·The Applicant was not granted parole in November 2021, following a parole assessment which did not support the Applicant’s release on parole, and a decision of the present Prisoners Review Board denying the Applicant release on the basis of a high risk of reoffending, poor response to prior court-imposed orders and community supervision orders, and unmet treatment needs;
·There was evidence the Applicant had failed to complete involuntary courses in prison and had demonstrated aggressive behaviours; and
·The Applicant had engaged in family violence.
[108] R1, pages 10-13.
Nature of the harm
The Applicant conceded that the harm which would be caused were he to reoffend would be serious.
The Applicant has engaged in a broad range of offending including violent offending, numerous offences of dishonesty, and frequent and persistent traffic offending. The nature of the harm to individuals and to the community if the Applicant were to engage in the criminal and other behaviour which he has in the past, is broad and serious. The consequences of a repeat of the violent behaviour for which the Applicant was convicted on individuals, who might be victims of such behaviour and the broader community, are obvious. Violence within relationships causes harm to the direct victim, but also to the other members of the affected family. As well as the physical harm, family violence can cause trauma to those directly involved and to those who witness it.
If the Applicant were to engage in dishonesty offences against individuals and businesses, this would cause harm including financial loss to the members of the community whose property is stolen. In the Tribunal’s view, the fact that such loss is financial or that it is suffered by a business, rather than an individual, does not diminish the serious nature of that harm, however, it accepts that such harm may be regarded as less serious than the harm caused by violent crimes.
The harm caused by disregard of the type shown by the Applicant for driving laws is also self-evident and serious. The Applicant has engaged in a broad range of traffic offences including repeatedly driving without a licence over an extended period, and in spite of court orders, driving while under the influence of alcohol, driving with an illicit drug, reckless driving dangerous to the public, and failing to stop when called upon. The Tribunal notes that traffic offences often do not involve an identified victim who is harmed as a result of the offence. This does not limit the seriousness of those offences, which attract sanction because of the broader risk they present of causing harm. As noted by McKerracher J in RQRP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 266 at [48]:
It may also be accepted that there is a degree of separation in the committing of certain offences between the criminal act and any potential harm. Such offences encapsulate conduct that does not necessarily require an element of harm to another person to attract criminal sanction and can be distinguished from other crimes such as those involving direct violence where the harm arises immediately upon the doing of the act. … However the critical feature of these acts is that they attract criminal sanction because committing them creates a greater risk that much more serious conduct that does cause direct and significant harm could result.
Although His Honour was commenting in that case about child pornography and driving under the influence, in the Tribunal’s view, his comments are equally applicable to a significant history of traffic offending generally.
The Applicant has committed a series of driving offences and has persistently driven without being licenced to do so. On one of those occasions, the Applicant drove recklessly. On another occasion he was under the influence of alcohol, and on another, an illicit substance. The Tribunal takes driving offences seriously, and notes the serious harm, such as injury or death, that road users can suffer as a result of such offences. Were the Applicant to reoffend in a similar manner in the future, there is a risk that members of the public would suffer serious harm as a result.
Similarly, the Applicant has shown disregard for the orders of the courts and authorities, including suspended imprisonment orders, licence suspensions, and restraining orders. While these offences do not have an identifiable ‘victim’, they none-the-less cause public harm, including through undermining the authority of the courts and public confidence in the justice system, and placing strain on the public resources required to maintain the justice system. Breaches of orders, such as family violence restraining orders, also undermines the confidence of those who seek the protection of such an order, that they will be protected by the order and the preparedness of victims to seek the protection of the law through such orders.
For these reasons, the Tribunal finds that the nature of the harm that would be caused to the community if the Applicant were to reoffend or engage in the offending and other serious conduct that he has in the past, would be serious, not only to individuals in the community, but also to the community as a whole.
Likelihood of the non-citizen engaging in further criminal or serious conduct
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must also consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community.[109] As noted above, the Respondent submitted that there was limited evidence to conclude that the Applicant had rehabilitated and that he had ‘unresolved treatment needs in respect of his psychological health and illicit substance abuse’[110] which presented a risk of reoffending. The Respondent submitted the given the Applicant’s offending history, including offending and conduct related to family violence and a lengthy history of breaching supervision orders, restraining orders, bail conditions and undertakings given by the court, and multiple licence disqualifications, the Applicant represented an unacceptable risk to the community.
[109] Direction No 90 para 8.1.2(2)(b).
[110] R1, page 13.
With respect to risk of reoffending, the Applicant’s representative’s submissions conceded that ‘the balance of the Applicant’s record is of concern and evidences a disregard for the law generally’. However, the Applicant submitted that there has been a ‘significant change in his mentality, outlook, and ability to eradicate his issues with substance abuse’ and as such he should not be considered a risk of reoffending.[111]
[111] A1, page 9.
The Tribunal notes that there is evidence that the Applicant’s mother has had restraining orders in place against the Applicant for her protection on several occasions. However, there is also evidence that she has visited the Applicant in prison and that she is supporting his application to remain in Australia. The Tribunal accepts that the Applicant and his mother have an ongoing relationship and that she will be significantly impacted by his removal particularly given the family history and the loss of her other son.
Similarly, while the Applicant’s sister does not provide any evidence regarding the impact his removal would have on her, it is clear from her statement that she supports the Applicant remaining in Australia for the benefit of the family. Further to this, his sister-in-law supports his remaining here. Both women attest to their belief that the Applicant can reform and to his prior good character. The Tribunal accepts that they will be negatively impacted by his removal. However, there was no information before the Tribunal to suggest that any of the family members are financially or otherwise dependent on the Applicant or that they would suffer harm or hardship on that basis from his removal.
The Applicant arrived in Australia as an infant when he was around five months old. He has lived here since that time.[235] The Tribunal accepts he regards Australia as his home and has no experience living elsewhere. In the Applicant’s case this weighs significantly in favour of him remaining in Australia.
[235] Direction No 90 para 9.4.1(2)(a).
However, the Tribunal accepts the Respondent’s submission that the fact the Applicant commenced offending in his teenage years and has a significant offending history extending over the period since that time, has limited the time in which it could be said the Applicant was contributing positively to the Australian community. While the Tribunal accepts the Applicant has made some contribution through working, including with respect to the City of Perth signs, there was limited information about his employment contribution or any broader community contribution he has made. Letters of support speak of the Applicant’s positive personal qualities and prior good character.[236] The Tribunal accepts that support and that those views are genuine. However, in the Tribunal’s view, any contribution to the community he claims to have made is undermined by the frequent and persistent nature of his offending which demonstrated a disregard for Australian laws.
[236] R2, G11 pages 68, 76, 77; G12; G14, pages 80-81.
As noted above, the Applicant has lived in Australia since he was an infant. He has strong ties to Australia through his friends and family and due to his identification with Australia as his home.[237] In addition to his immediate family members, several of his extended family members, friends and community members submitted letters of support to the Department.[238] These letters speak to the Applicant’s potential for rehabilitation, prior good character and importance in the lives of his family and friends. The letters demonstrate the Applicant has support in the community and that his presence in Australia is valued by them.
[237] Direction No 90 para 9.4.1(2)(b).
[238] R2, G11 pages 75-77; G12, pages 80-81; G14, pages 106-107.
The letters indicate a general concern about the Applicant’s welfare and a desire to assist him to rehabilitate and become a prosocial member of the community. However, nothing in the material submitted suggests that the Applicant’s removal would have a significant impact on his family members or friends beyond the emotional impact of separation from the Applicant and the potential stress of ongoing concern about his welfare in New Zealand.
As discussed above in the section on the best interests of relevant children, the Applicant’s nephew and goddaughter are likely to suffer some emotional detriment if he is removed. However, given the nature of their relationship with the Applicant and the limited information regarding any impact removal would have on them, the Tribunal is not satisfied there would be any significant impact on them.
In summary, the Applicant has close ties to the Australian community. He has lived here with his family since he was an infant. His family is comprised largely of Australian citizens and permanent residents. He considers himself to be Australian. The Applicant has made some positive contributions to the Australian community, primarily through his work. However, he has a significant history of offending which commenced as a teenager. This has tempered his contribution to the Australian community and impacted the strength of his ties here.
Overall, the Tribunal finds that the Applicant’s ties to Australia weigh heavily in favour of the revocation of the Cancellation Decision.
Impact on Australian business interests
Paragraph 9.4.2 of Direction No 90 states:
(3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant did not suggest that his removal from Australia would adversely impact on Australian business interests.[239] The Respondent also suggested this consideration was neutral with respect to the Applicant.[240]
[239] A1, page 14.
[240] R1, page 21.
The Tribunal finds this consideration is not relevant to the Applicant’s circumstances.
Conclusion on links to the Australian community
The Tribunal acknowledged the length of time the Applicant has spent in Australia. He considers himself to be Australian and has both strong ties to Australia and a strong sense of Australian identity.
Taking the strength, nature and duration of ties and impact on Australian business interests cumulatively, the Tribunal considers that the Applicant’s links to Australia weigh heavily in favour of revocation of the Cancellation Decision.
Other consideration – COVID-19
The list of ‘other considerations’ in paragraph 9 of Direction No 90 is not exhaustive. There may be additional ‘other considerations’ that are relevant to a particular application. The Applicant’s written submissions suggested that the COVID-19 pandemic constituted a relevant other consideration. Accordingly, the Tribunal has considered the submissions made with respect to that consideration separately.
With respect to COVID-19, the Applicant’s written submissions stated:[241]
The COVID-19 pandemic has led to restrictions on the movement of people in both Australia and New Zealand.
As the Tribunal is aware, in the event that the decision under review is affirmed, officers of the Respondent’s Department are required by force of s 198 of the Act to remove him from Australia “as soon as reasonably practicable” (and he must be detained until he is so removed).
Whether or not removal will be practicable is largely dependent upon international events in respect of the COVID-19 pandemic. However, it cannot be said that the applicant’s removal will never be practicable.
[241] A1, page 15.
The Tribunal sought to clarify the purpose of this contention with respect to this consideration during closing submissions at the hearing. In response the Applicant’s representative stated that the Applicant was ‘submitting that it’s neither way is in favour of nor against’.[242]
[242] Transcript, page 58.
The Respondent submitted that Australia is not presently restricting overseas departure of persons who are not Australian citizens or permanent residents, citing information provided by the Department of Home Affairs.[243] The Respondent also submitted that entry to New Zealand is not restricted for New Zealand citizens, citing information from the New Zealand Government regarding entry requirements for citizens,[244] though the cited material suggests managed quarantine requirements apply. Accordingly, the Respondent submitted that any concerns regarding the Applicant being able to be removed for Australia in the foreseeable future were unfounded.
[243] ‘Department of Home Affairs (Cth)’, Outward Travel Restrictions Operative Directive (Web Page) < ‘Unite Against COVID-19’, New Vaccination Requirement for Non-Citizen Travellers to New Zealand (Web Page, 3 October 2021) <>
While this is not a decision on removal, the Tribunal recognises that the practical effect of the decision would be that the Applicant would be removed to New Zealand as soon as is reasonably practicable (under s 198 of the Migration Act) if the Tribunal were to affirm the decision under review.
The material from the New Zealand government suggests that return to New Zealand is not prevented but may be subject to entry and quarantine requirements for New Zealand citizens. In light of the current complexities of travel, even for returning citizens, the Tribunal accepts that the Applicant’s removal may be delayed pending necessary arrangements being made to meet quarantine and entry requirements in New Zealand. Thus, if the Tribunal affirms the Non-Revocation Decision the Applicant may face an additional period of immigration detention before it will be reasonably practicable to remove him to New Zealand. However, there is no information before the Tribunal, that the Applicant would be subject to indefinite detention and the Applicant did raise a concern that it would.
The Tribunal also accepts that the prospect of additional time in immigration detention may cause stress to the Applicant. The Tribunal further accepts that public health responses to COVID-19 may impact the Applicant’s capacity to access services or seek employment upon return to New Zealand and on his family’s capacity to visit him there should they chose to do so. This may extend the time it takes the Applicant to resettle in New Zealand, increasing the stress of relocation for the Applicant and the impact of separation on his family.
The Tribunal does not find the impacts of COVID-19 on the removal or return of the Applicant to New Zealand raise significant issues in the Applicant’s case. The Tribunal finds this consideration to have neutral weight.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Act.
The Tribunal has therefore considered whether there is ‘another reason’ why the Cancellation Decision should be revoked, having regard to the primary and relevant other considerations in Direction No 90.
In determining the weight to be applied to each consideration, the Tribunal has had regard to the Applicant’s offending history and personal circumstances, including the circumstances of his family members in Australia. The Tribunal has considered all the relevant considerations and weighed them according to the guidance provided by Direction No 90.
The Tribunal has considered all the primary considerations, including protection of the Australian community. The Tribunal has found that the nature of the Applicant’s offending was serious, in particular having regard to the frequent and sustained offending of the Applicant over a significant number of years. The Tribunal had concerns about the Applicant’s commitment to rehabilitation given previous failures to rehabilitate where the Applicant was given opportunities by the courts to avoid serving time in prison. The Tribunal has had regard to the risk of serious harm to the community should he reoffend. The Tribunal found that the Applicant presents a high risk of reoffending. Considering these factors, the Tribunal has found that the primary consideration of the protection of the Australian community weighs heavily against the revocation of the Cancellation Decision.
Having regard to the consideration relating to family violence engaged in by the Applicant, the Tribunal has found that the Applicant’s offending included family violence offences against his mother but that these were at the lower end of the spectrum. The Tribunal found this primary consideration weighed moderately against revocation of the Cancellation Decision.
The Tribunal has also found that due to the frequent and sustained history of offending by the Applicant, the expectations of the Australian community would be that the Applicant’s visa remains cancelled. However, the Tribunal considered the community would have greater tolerance for the Applicant’s offending given the fact he settled in Australia as an infant. The Tribunal also considered that the community would have some sympathy for the Applicant’s personal circumstances including the loss of his brother and the family trauma surrounding his mother’s rape. Having regard to all principles articulated in Direction No 90 and the Applicant’s circumstances, the Tribunal found this primary consideration weighed moderately against revocation of the Cancellation Decision.
The Tribunal has considered the best interests of the Applicant’s younger nephew and goddaughter in Australia. There was very limited information before the Tribunal with respect to this consideration and the children’s interests. The Tribunal accepts the Applicant has a close relationship with his nephew and that he wants to act as a role model for him in his brother’s absence. The Tribunal was unable to make detailed findings regarding Ms E’s interests. Having regard to all the circumstances and the information available to the Tribunal, the Tribunal found that this primary consideration weighs moderately in favour of revocation of the Cancellation Decision.
The Tribunal has had regard to the relevant other considerations, including the Applicant’s links to the Australian community and the impediments to the Applicant’s removal to New Zealand. The Tribunal found that the Applicant would face some impediments if he were to be returned to New Zealand given the age at which he left New Zealand and his lack of family support there. However, the Tribunal considers those impediments are not insurmountable and weigh only moderately in favour of revocation of the Cancellation Decision.
With regard to his links to the Australian community, the Tribunal found that Applicant has close ties to Australia, principally through his family members here and having lived in Australia since a young age. The Tribunal accepted the Applicant considers himself to be Australian and that his immediate family members will suffer emotional hardship if he is removed. The Tribunal did not consider the impact on Australian business interests to be relevant in the Applicant’s circumstances. Overall, the Tribunal found that the Applicant’s ties to Australia weigh heavily in favour of the revocation of the Cancellation Decision.
The Tribunal had regard to the impact that revocation of the Cancellation Decision would have on the victims of the Applicant’s offending. The Tribunal found this consideration was not relevant on the information before it.
The Tribunal has also found that the Cancellation Decision did not raise any issues of non-refoulement in the Applicant’s case and that it was not relevant.
The Tribunal also considered the Applicant’s submissions with respect to COVID-19 but afforded this consideration neutral weight in the Applicant’s circumstances.
In weighing these considerations against one another, the Tribunal considers that although there are countervailing considerations which favour revocation of the Cancellation Decision, including the Applicant’s links to the Australian community and the extent of impediments if removed, the primary considerations of the protection of the Australian community, family violence considerations and the expectations of the Australian community outweigh those considerations in the Applicant’s case.
In summary, having regard to all of the primary considerations, and the relevant other considerations in Direction No 90, the Tribunal is not satisfied that there is ‘another reason’ why the Cancellation Decision should be revoked. The correct or preferable decision is to affirm the Non-Revocation Decision.
DECISION
The Non-Revocation Decision, being the decision of the delegate of the Respondent, dated 20 October 2021, not to revoke the cancellation of the Applicant’s Special Category (Class TY, Subclass 444) visa is affirmed.
I certify that the preceding 259 (two hundred and fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Member S Burford
........[Sgd]................................................................
Associate
Dated: 12 January 2022
Date of hearing: 22 December 2021 Advocate for the Applicant: Mr Doumanis, E-migration Australia Solicitors for the Respondent: Ms Jones-Bolla, Sparke Helmore Lawyers ANNEXURE – TABLE OF THE APPLICANT’S OFFENDING
This table was drawn from information included in the Australian Criminal Intelligence Commission ‘Check Results Report’ dated 7 October 2020,[245] the Western Australia Department of Justice, Corrective Services ‘Sentence Summary – Offender’ report, dated 19 October 2020,[246] and the Western Australia Police Force ‘History for Court – Criminal and Traffic’ complied on 12 November 2021.[247]
[245] R2, G4, pages 29-32.
[246] R2, G8, pages 44-47.
[247] R2, G4; R3, pages 359-369.
Where the Applicant was resentenced for earlier offences due to breaches of suspended sentences, the later record of the offence appears in italics.
Offences committed as a juvenile are identified with an *.
Conviction Date Court Offence Offence Date(s) Court Result 1. 3 September 2020 Perth Magistrates Court Breach of Bail 15 May 2020 One months’ imprisonment –
concurrent from 2 July 2020
2. 3 September 2020 Perth Magistrates Court Burglary and commit 3 March 2020 One months’ imprisonment – concurrent form 2 July 2020 3. 3 September 2020 Perth Magistrates Court Possess a prohibited drug (Methylamphetamine) 7 March 2020 Two months’ imprisonment – concurrent from 2 July 2020 4. 3 September 2020 Perth Magistrates Court Drove or permitted vehicle with false plate to be driven 11 February 2020 $1,000 fine (global) 5. 3 September 2020 Perth Magistrates Court Failed to give driver identity information 2 July 2020 $1,000 fine (global) 6. 3 September 2020 Perth Magistrates Court No authority to drive – suspended 3 March 2020 Three months’ imprisonment – concurrent from 2 July 2020;
Motor vehicle Driver’s Licence (MDL) Disqualified for nine months
7. 3 September 2020 Perth Magistrates Court No authority to drive – suspended 11 February 2020 Three months’ imprisonment – cumulative from 2 July 2020; MDL Disqualified for nine months 8. 3 September 2020 Perth Magistrates Court Without lawful excuse trespassed on a place 28 April 2020 One months’ imprisonment – concurrent from 2 July 2020 9. 3 September 2020 Perth Magistrates Court Criminal Damage or Destruction of Property 16 April 2020 One months’ imprisonment – concurrent from 2 July 2020 10. 3 September 2020 Perth Magistrates Court Burglary and commit 27 April 2020 Two months’ imprisonment – cumulative form 2 July 2020 11. 3 September 2020 Perth Magistrates Court Possession of stolen or unlawfully obtained property 7 March 2020 Three months’ imprisonment – concurrent from 2 July 2020 12.
3 September 2020
Perth Magistrates Court Stealing
27 April 2020
$1,000 fine (global)
13. 3 September 2020 Perth Magistrates Court Stealing 3 March 2020 $1,000 fine (global) 14. 3 September 2020 Perth Magistrates Court Stealing 6 February 2020 $1,000 fine (global) 15. 3 September 2020 Perth Magistrates Court Stealing 7 February 2020 $1,000 fine (global) 16. 3 September 2020 Perth Magistrates Court No authority to drive – suspended 6 November 2018 Three months’ imprisonment – concurrent from 3 September 2020
(Breach of suspended imprisonment order; Three months’ imprisonment – concurrent from 3 September 2020; MDL Disqualified for nine months – cumulative from 3 September 2020)
17.
3 September 2020
Perth Magistrates Court
No authority to drive – suspended
7 March 2020
MDL Disqualified for nine months; three months’ imprisonment - cumulative from 2 July 2020
18. 8 May 2020 Joondalup Magistrates Court Driving with prescribed illicit drug 7 March 2020 $350 fine 19. 19 September 2019 Perth Magistrates Court Stealing 24 March 2019 $500 fine 20. 19 September 2019 Perth Magistrates Court No authority to drive – suspended 6 November 2018 $200 fine
(Breach of suspended imprisonment order, suspended imprisonment order to continue)
21. 19 September 2019 Perth Magistrates Court Breach Family Violence Restraining Order or Violence Restraining Order 13 May 2019 $300 fine 22. 8 August 2019 Perth Magistrates Court Unlicensed Person Possess Firearm/Ammunition 13 April 2019 $300 fine 23. 8 August 2019 Perth Magistrates Court Possessed drug paraphernalia in or on which there was a prohibited drug or plant 13 April 2019 $350 fine 24. 16 April 2019 Perth Magistrates Court Possessed drug paraphernalia in or on which there was a prohibited drug or plant 21 February 2019 $250 fine 25. 7 December 2018 Perth Magistrates Court No authority to drive – suspended 6 November 2018 Three months’ imprisonment – concurrent from 3 September 2020; MDL Disqualified for nine months – cumulative from 3 September 2020; $200 fine
(Original sentence – Eight month’s suspended imprisonment order – cumulative suspension for 16 months from 7 December 2018; MDL Disqualified for nine months – cumulative from 7 December 2018)
26. 13 March 2017 Perth Magistrates Court Stealing 11 January 2017 Three months’ imprisonment – concurrent from 13 March 2017 27. 25 January 2017 Perth Magistrates Court No authority to drive – suspended 24 January 2017 Four months’ imprisonment – cumulative from 25 January 2017; MDL Disqualified for nine months - cumulative 28. 25 January 2017 Perth Magistrates Court No authority to drive – suspended 28 September 2016 Four months’ imprisonment – concurrent from 25 January 2017; MDL Disqualified for nine months – cumulative 29.
25 January 2017 Perth Magistrates Court No authority to drive – suspended 29 August 2016 Four months’ imprisonment - concurrent from 25 January 2017; MDL Disqualified for nine months – cumulative 30.
25 January 2017
Perth Magistrates Court Used an unlicensed vehicle 29 August 2016
$200 fine
31.
25 January 2017 Perth Magistrates Court
Breach of Bail Undertaking
13 September 2016 One months’ imprisonment concurrent from 25 January 2017 32.
25 January 2017
Perth Magistrates Court Breach of Bail
26 October 2016
One months’ imprisonment concurrent from 25 January 2017 33. 25 January 2017 Perth Magistrates Court No authority to drive – suspended 17 March 2016 Four months’ imprisonment – concurrent from 25 January 2017; MDL Disqualified for nine months – cumulative 34.
25 January 2017
Perth Magistrates Court
No authority to drive – suspended 16 December 2015
Four months’ imprisonment – concurrent from 25 January 2017; MDL Disqualified for nine months – cumulative 35.
25 January 2017
Perth Magistrates Court Breach of Bail Undertaking
29 August 2016
One months’ imprisonment –concurrent form 25 January 2017 36.
25 January 2017 Perth Magistrates Court Breach of Violence Restraining Order 30 May 2016 $200 fine 37. 11 September 2015 Perth Magistrates Court Possessed drug paraphernalia in or on which there was a prohibited drug or plant 13 August 2015 $200 fine 38.
24 July 2014 Perth District Court of Western Australia Breach of Intensive Supervision Order 20 January 2011 Conditional suspended imprisonment order – 12 months’ imprisonment concurrent; 12 months suspended 39.
24 July 2014 Perth District Court of Western Australia Breach of Intensive Supervision Order
30 November 2011
Conditional suspended imprisonment order – six months’ imprisonment concurrent; 12 months suspended 40.
24 July 2014
Perth District Court of Western Australia
Breach of Intensive Supervision Order
16 February 2012
Conditional suspended imprisonment order – six months’ imprisonment concurrent; 12 months suspended from 24 July 2014. Conditions: supervision and programme 41.
24 July 2014
Perth District Court of Western Australia Breach of Intensive Supervision Order
10 March 2012
Conditional suspended imprisonment order – six months’ imprisonment concurrent; 12 months suspended 42.
4 March 2014 Perth Magistrates Court No Authority to Drive – Suspended 8 January 2014 $1,500 fine; MDL Disqualified for nine months – cumulative 43.
6 August 2013 Perth District Court of Western Australia Reckless Driving – Dangerous to the Public or any Person 20 February 2013 Six months’ imprisonment – concurrent from 29 July 2013; MDL Disqualified two years – cumulative 44.
6 August 2013
Perth District Court of Western Australia Failed to Stop when Called Upon
20 February 2013
$5,000 fine; MDL Disqualified two years – cumulative 45.
6 August 2013
Perth District Court of Western Australia Stealing
20 January 2011
18 months’ intensive supervision order
46.
6 August 2013
Perth District Court of Western Australia Stealing
30 November 2011
18 months’ intensive supervision order
47.
6 August 2013
Perth District Court of Western Australia Stealing
10 March 2012
18 months’ intensive supervision order
48.
6 August 2013
Perth District Court of Western Australia Disorderly behaviour in public place
10 March 2012
$100 fine
49.
6 August 2013
Perth District Court of Western Australia
Breach of Bail Undertaking
16 March 2012
$100 fine
50.
6 August 2013
Perth District Court of Western Australia Breach of Bail Undertaking
30 March 2012
$100 fine
51.
6 August 2013
Perth District Court of Western Australia Stealing 16 February 2012
18 months’ intensive supervision order
52.
16 June 2010
Joondalup Magistrates Court No Authority to Drive – Never held and Disqualified 28 May 2010
$1,000 fine; MDL Disqualified for nine months – cumulative 53.
5 October 2009
Perth Magistrates Court Obstructing public officers 26 June 2009
$600 fine
54.
5 October 2009
Perth Magistrates Court Fail to Obey Order Given by an Officer 26 June 2009
$300 fine
55.
21 January 2009
Perth Magistrates Court Dangerous Driving 30 December 2008
$400 fine
56.
21 January 2009
Perth Magistrates Court No Authority to Drive – Suspended 30 December 2008
$1,000 fine; MDL Disqualified for nine months – cumulative 57.
24 November 2008
Joondalup Magistrates Court No Authority to Drive – Suspended 18 September 2008
$400 fine; MDL Disqualified for nine months – cumulative 58.
20 August 2008
Perth Magistrates Court No Driver’s Licence (Cancelled - Disqualification Expired) 10 June 2008
$300 fine; MDL Disqualified for three months – MAND – concurrent 59.
6 August 2008
Perth Magistrates Court No Driver’s Licence (Cancelled - Disqualification Expired) 15 June 2008
$300 fine; MDL Disqualified for three months – concurrent 60.
18 July 2008
Joondalup Magistrates Court No Driver’s Licence (Cancelled - Disqualification Expired) 15 May 2008
$150 fine
61. 18 July 2008 Joondalup Magistrates Court Exceed 0.08g alcohol per 100ml of blood 15 May 2008 $800 fine; MDL Disqualified for six months – concurrent 62.
18 July 2008
Joondalup Magistrates Court Unlawful Wounding 15 May 2008
Community based order for 12 months’ - supervised 63.
1 May 2008
Perth Magistrates Court Possession of things for graffiti 15 February 2008
$200 fine 64.
1 May 2008 Perth Magistrates Court Possess a Prohibited Drug (MDMA) 15 February 2008
$500 fine 65.
20 July 2007 Perth Magistrates Court Travel on a part of a conveyance not intended for passengers 24 April 2007
$200 fine 66.
20 July 2007 Perth Magistrates Court
Criminal Damage 24 April 2007 $300 fine 67.
22 March 2007 Perth Magistrates Court
Disorderly behaviour in public place 16 February 2007
$300 fine
68.
15 January 2007 Perth Magistrates Court Criminal Damage 16 September 2006
$400 fine 69.
15 November 2006 Perth Magistrates Court Stealing 10 November 2006
$100 fine (Spent conviction) 70. 23 October 2006 Joondalup Magistrates Court Excess 0.08% 9 September 2006
$400 fine; MDL Cancelled and Disqualified for three months 71.
28 February 2005
Perth Children’s Court
*Possess Prohibited Drug
Unknown
$100 Recog to be of good behaviour for 2 months
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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Natural Justice
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