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

[2020] AATA 2214

MTBC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2214 (10 July 2020)

Division:GENERAL DIVISION

File Number(s):      2020/2415

Re:MTBC

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member M Griffin QC

Date:10 July 2020

Place:Sydney

The Tribunal decides that the decision under review is affirmed.

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

Senior Member M Griffin QC

CATCHWORDS

MIGRATION – subclass 444 special category visa – citizen of New Zealand – failure to pass character test – substantial criminal record – whether discretion to revoke mandatory cancellation should be exercised – considerations under Direction No. 79 – primary considerations – other considerations – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth) – ss 500(1)(ba), 501, 501(6)(a), 501(7)(c), 501(CA)(4), 501(CA)(1), s 501(3A)

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185

SECONDARY MATERIALS

Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA – paragraphs 13, 14

REASONS FOR DECISION

Senior Member M Griffin QC

10 July 2020

INTRODUCTION

1.       The Applicant held a Class TY Subclass 444 Special Category (Temporary) visa. On 14 August 2018, the visa was cancelled by the Delegate, pursuant to mandatory cancellation provisions of the Migration Act 1958 (Cth) (the Act) upon representations made by the Applicant. A Delegate of the Minister, pursuant to section 501CA (4) of the Act, decided not to revoke the mandatory cancellation on 17 April 2020.

2.       The Applicant seeks review of that decision before this Tribunal.

3.       The Applicant was born in March 1995 and is a citizen of New Zealand. He has lived in Australia for approximately 10 years and is presently 25 years of age.

4.       Since coming to Australia, the Applicant has worked for periods of time as a concreter/labourer. The Applicant was in a relationship with CG with whom he had two children. The two children are aged five and three, having been born in November 2016 and June 2015 respectively. The elder child, by Court order, is under the guardianship and care of the Applicant’s mother and the second child is cared for by the Applicant’s now ex-partner, CG.

5.       A review of the Applicant’s criminal history discloses that the Applicant has committed a variety of offences, including serious offences, the first having been committed within about a year of his arrival in Australia. The Applicant’s history includes violent offences and offences in relation to personal property, including two serious offences of aggravated robbery which were committed with violence and in company. These offences were committed when the Applicant was a little under 19 and 21 years of age respectively, although the offences were dealt with in 2017. It is relevant in this matter to consider the relatively youthful age of the Applicant when those offences were committed.

6.       There is also evidence before the Tribunal of unsatisfactory violent and frankly worrying behaviour by the Applicant whilst both in prison and in immigration detention.

7.       To understand the Tribunal’s view of the Applicant’s criminal history, it is essential to set out the history in full: see Appendix A.

8.        The Applicant was unrepresented at the hearing on 25 June and 26 June 2020 and he was at a telephone directions hearing held on 23 June 2020. He appeared to be not only intelligent but also said that he understood and could read the English language. I asked the Applicant at the telephone directions hearing whether he had read the Respondent’s Statement of Facts, Issues and Contentions (SFIC). He replied in the affirmative.

9.       Paragraph 50 of the Respondent’s SFIC sets out in some detail the relevant submissions made by the Applicant, including representations which were made to the Minister’s Delegate, personal circumstances and details of the letter sent to the Department dated 5 January 2020. The Applicant produced no further material nor did he provide a SFIC apart from two statements on which he relied; statements which were from his partner and a cousin. When asked on 23 June 2020, the Applicant said that the details contained in paragraph 50 were an accurate reflection of the matters the Applicant proposed to rely upon at the hearing. Furthermore, the Applicant, at hearing, supplemented those matters which were all directed to the issue of the need for him and his desire, to remain in Australia on his presently cancelled visa.

ISSUES

10. The issue in this review is whether the original decision to cancel the Applicant’s visa should be revoked pursuant to s 501 of the Migration Act 1958 (Cth). The Tribunal may revoke the original decision if the Tribunal is satisfied:

(a)that the Applicant passes the character test as defined by section 501 of the Act; or

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

RELEVANT LEGISLATION AND POLICY

11. Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: see s 501CA(1).

12.     Subsection 501CA(4) provides that:

4The Minister may revoke the original decision if:

a)the person makes representations in accordance with the invitation;

and

b)the Minister is satisfied:

(i)     that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

13.     Subsection 501(6)(a) relevantly provides that a person does not pass the "character test" if the person has "a substantial criminal record". Relevantly, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).

14. Subsection 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.

15. The Minister has made written directions pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (Direction no. 79. which commenced on 28 February 2019). The relevant paragraphs of which are set out below and describe the framework within which the Tribunal’s discretion is to be exercised.

16.     The Preamble of Direction no. 79 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly include that:

(a)the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens;

(b)the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere;

(c)a non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to forfeit the privilege of staying in Australia;

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

(e)while Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, or contributing to, the Australian community for only a short period of time, 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; and

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

17.     Part C of Direction no. 79 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises three "primary considerations" and several specified, but non-exhaustive, "other considerations", which must be taken into account.

18.     Pursuant to Part C of Direction no. 79, the Tribunal must, to the extent that they are relevant to this case, take into account three primary considerations and other considerations. Primary considerations should generally be given greater weight than the other considerations and one or more primary considerations may outweigh other primary considerations. These principles are of course dependent upon the facts and circumstances of each case.

19.     The three primary considerations are:

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

(b)The best interests of minor children in Australia;

(c)Expectations of the Australian community.

Primary Consideration 1 – Protection of the Australian community

20.     Paragraph 13.1 of Direction no. 79 provides:

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

(2)Decision-makers should also give consideration to:

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

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

21.     The two limbs of paragraph 13.1(2) that the Tribunal must consider when assessing the protection of the Australian community are set out below.

The nature and seriousness of the conduct

22.     Sub-paragraph 13.1.1 of Direction no. 79 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes, in summary:

(a)the principle that violent and/or sexual crimes are viewed very seriously;

(b)the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

(c)the principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

(d)the sentence imposed by the courts for a crime or crimes, subject to (b) above;

(e)the frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;

(f)the cumulative effect of repeated offending;

(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

(h)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; and

(i)where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention is serious.

The risk to the Australian community

23.     Paragraph 13.1.2 of Direction no. 79 states that decision-makers must have regard, cumulatively, to the following:

(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending.

Primary Consideration 2 – Best interests of minor children in Australia affected by the decision

24.     In relation to each child under the age of 18, decision-makers must decide whether revocation is in the best interests of that child.

25.     In considering the best interests of the child, the following factors must be considered where relevant:

(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

(e)Whether there are other persons who already fulfil a parental role in relation to the child;

(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

Primary Consideration 3 – Expectations of the Australian community

26.     Paragraph 13.3 of Direction no. 79 provides:

(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government's views in this respect.

27.     The principles to be applied, as set out in paragraph 6.3 of Direction no. 79, state that the right of a non-citizen to remain in Australia is a privilege conferred in the expectation that he or she will be law-abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australia community. It is also the expectation of the Australian community that a visa should be cancelled if the holder commits serious crimes.

28.     The length of time a non-citizen has been making a positive contribution to the Australian community and the consequences of the visa refusal or cancellation for minor children and other immediate family members in Australia are relevant considerations.

Other Considerations

29.     The Tribunal must also take into account other considerations insofar as they are relevant. These considerations include (but are not limited to):

(a)International non-refoulement obligations;

(b)Strength, nature and duration of ties to Australia;

(c)Impact on Australian business interests;

(d)Impact on victims;

(e)Extent of impediments if removed.

International non-refoulement obligations

30.     The considerations at paragraph 14.1 of Direction no. 79 include (but are not limited to):

(a)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has Convention and Protocol non-refoulement obligations;

(b)The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen's visa;

(c)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled);

(d)Where a non-citizen makes claims which may give rise to international non­refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked;

(e)Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated.

Strength, nature and duration of ties

31.     The considerations at paragraph 14.2 include:

(a)how long the non-citizen has resided in Australia, including the age of arrival in Australia, the period of offending and positive contributions to the Australian community;

(b)the strength, duration and nature of any family or social links with Australian citizens and Australian residents, including the effect of non-revocation on the non-citizen’s immediate family.

Impact on Australian business interests

32.     Paragraph 14.3(1) of Direction no. 79 notes an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

Impact on victims

33.     Paragraph 14.4 of Direction no. 79 provides:

'Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.'

Extent of impediments if removed

34.     Paragraph 14.5(1) of Direction no.79 provides that the extent of impediments if removed requires consideration of the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account: age and health; whether there are substantial language or cultural barriers; and the availability of any social, medical and/or economic support.

DISCUSSION

Character Test

35. It is clear according to the Act that because, in accordance with s 501(6)(a) of the Act, the Applicant has a ‘substantial criminal record’, he does not pass the character test.

36.     The question for the Tribunal is whether it is satisfied that there exists another reason for revoking the cancellation decision.

Protection of the Australian community (past conduct and future risk)

37.     The Applicant’s offending commenced in 2011, within 12 months of his arrival in Australia. He was a juvenile, approximately 16 years of age at that time. That original offending was serious and involved a degree of personal confrontation. The serious level of offending has continued since that time, with the most serious offences having been committed when he was 19 and 21 years of age respectively. Since sentencing proceedings in 2017, the Applicant has been in custodial circumstances and then immigration detention since 2019.

38.     His offending has involved traffic offences, aggravated robbery accompanied by personal violence, domestic violence against his then partner, CG, breaches of bail, breaches of Court Orders as a result of which those original offences were “called up” at a later time and he was resentenced on occasions to further periods of imprisonment.

39.     I am satisfied on the evidence submitted by the Respondent, that whilst in immigration detention, the Applicant has also been responsible for violence to another inmate, deliberately setting off the fire alarm which caused mayhem and possession of contraband substances. On one such occasion, the Applicant was in possession of cigarette lighter, scales, syringes, needles and phials of what was an unknown substance.

40.     The Tribunal concludes, in respect of this aforementioned matter, that there was an intention in possessing those items by the Applicant to use them for illicit drug-related purposes (steroid use). The Applicant accepted that those items were his property. As has been referred to above, it is necessary to look carefully at the Applicant’s criminal history, traffic history and behaviour whilst in detention.

41.     It cannot be ignored that the Applicant, during most of the time of his criminal offending, was a young person. However, there is a worrying continuation of poor behaviour, perhaps even drug-related behaviour, during his time in detention. Although the level of objective seriousness of the Applicant’s entire offending history is at no more than a moderate level, nonetheless, the fairly continuous history of offending, the variety of offending, including offences of domestic violence and violent-related offences such as robbery, lead to the conclusion, overall, that the past offending and general behaviour of the Applicant is particularly serious.

42.     As to the relevant issue of future risk of offending and risk to the Australian community therefore, there are a number of factors to consider.

43.     The Applicant and his witnesses say that he now understands, in a more mature way, the reasons for his offending which the Applicant accepts were related to drugs, alcohol and immaturity, all of which had their genesis in a poor upbringing. That is undoubtedly true and is taken into account by the Tribunal.

44.     Furthermore, the Applicant says that he has undertaken education and courses, including the Equips Course, which is meant to assist in rehabilitation, particularly in matters of drugs and alcohol and its effect on offending. The Applicant also states that now, because of his children, he wishes to and is certain that he will lead a law-abiding lifestyle. The Applicant understands that the possibility of having his visa revoked will, in the future, should he be allowed to remain in Australia, be a powerful deterrent against engaging in criminal behaviour and committing further offences.

In material provided to the Tribunal (Exhibit 3),a letter dated 5^th January 2020, the Applicant has said that he, in effect, wishes his time in detention to demonstrate that he has reformed and will be a law-abiding citizen. The Applicant wrote “my behaviour and conduct at Villawood I hope is reflected by the man I wish to become, kind, generous and hard working. I made a lot of poor choices and did not think of the consequences in my past.”[1] The Applicant says he appreciates and maturely understands his past offending.

[1] Exhibit 3.

45.     This is, however, not borne out by his behaviour in custody and detention. In fact, the very opposite is true in the Tribunal’s view. In the Tribunals’ view, the Applicant is genuine in his desire to reform and rehabilitate himself, prompted by his new relationship and the affection he clearly feels for his children, amongst other things. However, the Tribunal concludes that the Applicant has not been able to effect any real practical rehabilitation, as evidenced by his behaviour particularly during the period at Villawood Detention Centre after 5 January 2020, and particularly related to the incidents in March 2020.

46.     The Applicant was warned in a letter in November 2016 as to the consequences of further offending. The Applicant accepts that he received that letter and appreciated its importance. Despite the many and various urgings by the Applicant and his witnesses, it is clear up to the time of hearing, including the behaviour in detention on 11 March 2020, that he has not reformed. In the Tribunal’s view, there is simply no foundation for believing that the Applicant has reformed. No doubt he appreciates the seriousness of his position but it is compelling evidence, in the Tribunal‘s view, having received both the letter of warning in 2016 and the letter which has led to these proceedings that even a few months before the hearing, the Applicant’s demonstrated earlier propensities are still in evidence. The Tribunal is in no doubt that the offending during the Applicant’s time in Australia, including his behaviour in custody and detention should be regarded very seriously. Furthermore, taking into account all the factors that the Applicant considers favourable to his case, the Tribunal nonetheless is of the view that the Applicant poses a very high risk of offending, particularly in respect of offences of violence and drug-related offences, in the future.

47.     The Tribunal accepts the submissions of the Respondent that the Applicant’s offending is both serious and that the Applicant is likely to be a risk of offending in the future. The Tribunal considers that this Primary Consideration weighs heavily against the Applicant.

Best interests of minor children in Australia

48.     As mentioned in paragraph 4 above, the Applicant has two children whose ages are three years and five years, having been born on 7 November 2016 and 15 June 2015 respectively. This consideration weighs in the Applicant’s favour although there are aspects to this consideration that require some further analysis.

49.     The Tribunal’s view is that the interests of each child, in this case, should be considered identical, although there are, of course, some factual differences between the children’s circumstances.

50.     When the Applicant’s partner, CL, gave evidence on 25 June 2020, she told the Tribunal that she had entered into a relationship with the Applicant on 27 May 2020 and that relationship had been formed via FaceTime. She had known the Applicant for some eight years prior to this and they were planning to get married. She explained, in evidence, that she had not met either of the Applicant’s children but had had contact with the older male child who currently lives with his grandmother in New Zealand.

51.     This was a surprising piece of evidence because although the Applicant said that the older male child was under the guardianship of the Applicant’s mother since a very young child, the Applicant’s material, originally presented to the Tribunal by his personal circumstances statement of August 2018, indicated the child lived in Australia. This was a basal reason for the Applicant claiming the need to remain in Australia because of his two children. At no time did the Applicant amend the evidence that the male child lived in New Zealand with his mother. In fact, the Applicant had earlier stated, which was not contradicted by him, that he had no family living in New Zealand at all.

52.     The Applicant is not unintelligent, in the Tribunal‘s view, having seen and listened to him. The Applicant was questioned about this at hearing and he said that he did not intend to deliberately mislead the Tribunal. In fact, the Applicant added further information about the child’s presence in New Zealand and said that his parents intended to return with the child to Australia at some unspecified time. The Applicant had every opportunity to place this evidence before the Tribunal at an appropriate time before the hearing. I am informed by my associate that she explained to the Applicant, in very clear terms, the necessity to place before the Tribunal relevant material upon which the Applicant sought to rely within two days of the commencement of the hearing. The information concerning the child’s presence in New Zealand was not in CL’s statement and it may be supposed that the Applicant did not expect his present partner to give that information. She was called as the first witness, before the Applicant. Having considered the Applicant’s explanation, the Tribunal rejects that it was an innocent error or mistake. The Tribunal concludes the omission was a deliberate attempt to mislead the Tribunal.

53.     This view is based, in part, on another curious event which occurred during the course of the hearing. At an early stage of the Applicant’s cross-examination, I noticed that the Applicant was holding something in his hand. The Applicant was at some distance from the camera which gave a view of him situated in a room at a table. When questioned, the Applicant disclosed that he was holding a mobile phone which was both turned on and in communication with his partner, CL, who had given evidence the day before. At that stage, the Tribunal had allowed CL to be present at the video hearing with the admonition that she was neither to speak or participate in the hearing. When asked why CL was also listening to the hearing via the Applicant’s mobile phone, he said, by way of explanation, that they always communicated in that way daily and that he wanted CL to have another opportunity to see what sort of person he was. It is relevant at this point, to note, that the Applicant was also wearing an earpiece which was capable of receiving information but which he said, on that occasion, that CL was not able to communicate with him. Whatever the truth of the matter is, the Applicant’s explanation was risible. He accepted that he had behaved improperly and that he appreciated that it was inappropriate to have made use of his mobile phone during the hearing.

54.     This leads the Tribunal to conclude that, in respect of matters in which the Applicant’s assertions cannot be verified by independent evidence, little weight can be attached to the assertions that he makes.

55.     As discussed above, the Tribunal can only conclude that the omission of details as to the male child’s whereabouts was a clumsy attempt to mislead the Tribunal as to highly relevant circumstances concerning both himself and his children.

56.     The female child, he said, lived in New South Wales with the child’s mother, the Applicant’s former partner and the victim of domestic violence. CL said that the mother of the child refuses to allow the Applicant to see the female child. This is in contradiction to what the Applicant has said, in that he has a good relationship with his former partner and they have come to a co-parenting agreement. Once again this, in the Tribunal‘s view, is deliberately misleading.

57.     There is no doubt that as a general proposition, children should have a proper relationship with both parents. The facts of this case do not displace that proposition and the Tribunal still gives considerable weight to the children’s interests in this case.

58.     There is no doubt on the evidence that the Applicant genuinely loves his children and wishes to have a personal relationship with them. The older child presently lives in New Zealand.

59.     Although the Applicant has stated, in his material, that he has had contact with both children, apparently by audio-visual means, and that his contact was on a daily basis, he conceded in cross-examination that the frequency of contact was far less. Whether the frequency of that contact is correct or not, it does not denigrate the Applicant’s interest and love for his children. In the female child’s case, upon cross-examination, the Applicant conceded that he has spent only three months with the female child since her birth before he was taken into custody.

60.     The Applicant has, in the past, conducted a relationship with his children, so he says, by FaceTime and other non person-to-person communication. Although this is far from ideal, nonetheless, it is a means by which the Applicant could achieve some contact with the children and provide those children with a reasonable degree of contact with their father.

61.     It is relevant to point out that the Applicant has also stated in his material that he has five nieces and nephews in Australia. When asked about the nieces and nephews, the Applicant gave the ages of four, three of whom were of 18 years of age or older. As to the 17 year old, who the Applicant identified, he gave no further information nor made any statement or representation that that the minor person was relevant in his case. The Tribunal does not need, therefore, to consider that minor person. On that basis, it is unnecessary to consider this aspect of the evidence further.

62.     The Tribunal finds this consideration, nonetheless, weighs in the Applicant’s favour.

Expectations of the Australian Community

63.     This consideration has been the subject of extensive judicial discussion (see FYBR v Minister for Home Affairs [2019] FCAFC 185). It is not up to the Tribunal to substitute its own view for the expectations of the Australian community by reference to the Applicant’s circumstances. The Tribunal rather, must give effect to the “norm” stipulated in Direction 79 at 13.3(1). per Stewart J and Charlesworth J (93); (100 to 104); (68).

64.     In this case, the Tribunal has considered the seriousness of the Applicant’s offending history together with the risk of his re-offending. Those matters, taken into account considered with all other personal circumstances relating to the Applicant, including those circumstances put forward by him in submissions which are in his favour, do not negate the expectations of the Australian community which require that this consideration weighs against the Applicant. There is no reason in the Applicant’s personal circumstances to displace this prima facie approach.

Other considerations

International non-refoulement obligations

65.     A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.

66.     There is nothing in the material to demonstrate that the Applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. The Tribunal is satisfied that there are no grounds for concluding that there is a real risk that the Applicant will suffer significant harm if removed from Australia.

Strength, nature and duration of ties

67.     The Applicant has lived in Australia for approximately 10 years, although since he became an adult, a large part of the time in Australia has been spent in custodial institutions or in immigration detention.

68.     The Applicant has worked in Australia as a labourer, so he says, and has paid tax. He has contributed therefore, it is appropriate to conclude, to Australian society in that way. He has been a member of his church and performed duties such as crowd control.

69.     Although the Applicant commenced with his statement to the Tribunal that he had no family in New Zealand and that all his family were in Australia, that is now not correct. It is certain that his young daughter still lives in Australia. Furthermore, on the evidence, the Applicant has many family members who apparently have a right to remain in Australia and it is accepted that by sending him back to New Zealand, they will be affected by his removal. Importantly, the Applicant formed a recent relationship on 27 May 2020 with CL and they propose to marry. CL said in evidence that she was prepared to travel to New Zealand should the Applicant be returned there.

70.     The Applicant and his cousin have both said, in various ways, that the Applicant will be alone in New Zealand and knows no other life but the life in Australia. This is surely not correct as the Applicant came here at 15 years of age. Furthermore, the Applicant’s father, mother and his son presently now live in New Zealand.

71.     Of concern is the fact that the Applicant has stated that if returned to New Zealand, he expected he would “get mixed up with gangs again”. This says little about his supposed rehabilitation, which the Tribunal has already concluded is illusory. This consideration, therefore, carries only modest weight in the Applicant’s favour.

Impact on Australian business interests

72.     There is no evidence currently available to suggest that the Applicant is involved in the delivery of a major project or of an important service in Australia. Accordingly, this consideration is not relevant to the Applicant's circumstances.

Impact on victims

73.     There is nothing in the material which suggests that this consideration is relevant to the Applicant’s case.

Extent of impediments if removed

74.     In response to the questions of whether he had any concerns or fears or whether there were any problems if the Applicant was required to return to New Zealand, the Applicant responded: “no family or support, nowhere to live, no food or shelter. No job prospects or people to help me get started. Drugs and violence gaol living or on the street” and “starting a new life with nowhere to call home. Falling into a gang and committing crime to survive. Being taken advantage of by others. Losing my children for good. No family to go to for assistance as all my family reside in Australia.”[2]

[2] G-Documents, G17, p.102.

75.     At the time of the hearing, the Applicant’s father, mother and his son were residing in New Zealand and there is currently no fixed date for them to return to Australia. The Tribunal is not satisfied, on the Applicant’s evidence as has been discussed earlier, that these family members, including his son under the guardianship of the Applicant’s mother, have determined to return to Australia. In any event, furthermore, the Applicant has a brother residing in New Zealand and who the Applicant says is a member of a gang.

76.     The Tribunal does not accept that the Applicant will be left “living on the streets with no food or shelter.” New Zealand has a suitable social security system and the Tribunal is of the view the Applicant would not be left homeless or without shelter.

77.     The Applicant is capable of working, so he asserts. The Applicant is able-bodied and does not suffer from any medical condition. He lived in New Zealand until he was 15 years of age and is, therefore, thoroughly acquainted with the culture.

78.     Should the Applicant have to leave his children in Australia, conducting a relationship with his children via technology and social media such as Facebook, skype or even telephone, although not ideal, means nonetheless, the Applicant can achieve a satisfactory connection with his children. After all, this is the nature of the relationship the Applicant has described with his two children since his incarceration in 2017.

79.     Overall, this consideration nonetheless weighs, somewhat, in the Applicant’s favour.

CONCLUSION

80.     Although there are a number of factors which in the various considerations in this case favour revocation of the cancellation, that the Tribunal considers, in the event, Considerations One and Three most powerfully outweigh all other considerations and factors, leading to the conclusion that there is no other reason to overturn the cancellation.

81.     The decision under review is affirmed.

Appendix A

Source	Court	Date	Offence	Result
NSW	PENRITH DISTRICT COURT	09/09/2019	Assault law enforcement officer (not police) inflict ABH-T1	H 66927705: PENDING COURT APPEARANCE
NSW	PENRITH DISTRICT COURT	09/09/2019	Reckless grievous bodily harm – T1	H 66927705: PENDING COURT APPEARANCE
NSW	PENRITH DISTRICT COURT	09/09/2019	Cause GBH to law enforcement officer reckless as to ABH-SI	H 66927705: PENDING COURT APPEARANCE
NSW	DOWNING CENTRE DISTRICT COURT	3/11/2017	Drive conveyance taken w/o consent of owner – T2	H 216206995 (CALL UP) IMPRISONMENT: 6 MONTHS COMMENCING 31/01/2017 CONCLUDING 30/07/2017 COURT CASE REFERENCE NUMBER 2014/00118789
NSW	DOWNING CENTRE DISTRICT COURT	3/11/2017	Steal from the person	H 217431095 (CALL UP) IMPRISONMENT: 6 MONTHS COMMENCING 31/01/2017 CONCLUDING 30/07/2017 COURT CASE REFERENCE NUMBER 2014/00151988
NSW	DOWNING CENTRE DISTRICT COURT	3/11/2017	Aggravated robbery-SI	H 62317003: IMPRISONMENT: 3 YEARS COMMENCING 31/07/2017 CONCLUDING 30/01/2019 RELEASE SUBJECT TO SUPV COURT CASE REFERENCE NUMBER 2016/00280845
NSW	DOWNING CENTRE DISTRICT COURT	3/11/2017	Aggravated robbery-SI	H 122740001: IMPRISONMENT: 3 YEARS COMMENCING 31/01/2017 CONCLUDING 30/01/2020 NON PAROLE PERIOD WITH CONDITIONS: 18 MONTHS COMMENCING 31/01/2017 CONCLUDING 30/07/2018 RELEASE SUBJECT TO SUPV COURT CASE REFERENCE NUMBER 2017/00031727
NSW	DOWNING CENTRE DISTRICT COURT	3/11/2017	Resist officer in execution of duty-T2	H 288943593 (CALL UP) IMPRISONMENT: 6 MONTHS COMMENCING 31/01/2017 CONCLUDING 30/07/2017 COURT CASE REFERENCE NUMBER 2015/00189315
NSW	SUTHERLAND LOCAL COURT	10/08/2017	Common assault-T2	H 66114783: IMPRISONMENT: 3 MONTHS COMMENCING 10/08/2017 CONCLUDING 09/11/2017
NSW	SUTHERLAND LOCAL COURT	6/06/2016	Drive conveyance taken w/o consent of owner – T2	H 216206995: (CALL UP) FINE: $770 BOND S9: 18 MONTHS SUPV NSW PROB SERVICE TO REPORT TO HURSTVILLE COMMUNITY CORRECTIONS WITHIN 2 DAYS OF RELEASE FROM CUSTODY
NSW	SUTHERLAND LOCAL COURT	6/06/2016	Contravene prohibition/restriction in AVO (Domestic)	H 211528798: IMPRISONMENT: 3 MONTHS COMMENCING 08/03/2016 CONCLUDING 07/06/2016
NSW	SUTHERLAND LOCAL COURT	6/06/2016	Common assault (DV)-T2	H 211528798: IMPRISONMENT: 3 MONTHS COMMENCING 04/03/2016 CONCLUDING 03/06/2016
NSW	SUTHERLAND LOCAL COURT	6/06/2016	Resist officer in execution of duty-T2	H 288943593 (CALL UP) BOND S9: CONCLUDING 10/09/2016 SUPV NSW PROB SERVICE TO REPORT TO COMMUNITY CORRECTIONS WITHIN 2 DAYS OF RELEASE FROM CUSTODY (LCFCO/E 2466)
NSW	DOWNING CENTRE DISTRICT COURT	06/05/2016	Steal from the person	H 217431095: BOND S9: 3 YEARS TO PARTICIPATE IN ALCOHOL ADDICTION COUNSELLING AS DIRECTED. TO PARTICIPATE IN DRUG ADDICTION COUNSELLING AS DIRECTED. TO BE SUBJECT TO AT LEAST 2 RANDOM URINE ANALYSIS DURING THE FIRST 6 MONTHS OF THE BOND. 1. THE OFFENDER IS CONVICTED. 2.THE OFFENDER IS TO ENTER INTO A GOOD BEHAVIOUR BOND FOR 3 YEARS, COMMENCING 6 MAY 2016, AND EXPIRING 5 MAY 2019. 3.THE OFFENDER IS TO COMPLY WITH ANY DIRECTIONS OR RECOMMENDATIONS REGARDING TREATMENT FOR HIS CONSUMPTION OF ALCOHOL AND ANY OTHER SUBSTANCES. 4. I DIRECT THAT THE OFFENDER BE SUBJECT TO AT LEAST 2 RANDOM URINE ANALYSIS DURING THE FIRST 6 MONTHS OF THE BOND. COURT CASE REFERENCE NUMBER 2014/00151988.
NSW	CENTRAL LOCAL COURT	11/09/2015	Common assault (DV)-T2	H 288943593: IMPRISONMENT: 7 MONTHS COMMENCING 28/06/2015 CONCLUDING 27/01/2016 NON PAROLE PERIOD WITH CONDITIONS: 3 MONTHS COMMENCING 28/06/2015 CONCLUDING 27/09/2015 RELEASE SUBJECT TO SUPV
NSW	CENTRAL LOCAL COURT	11/09/2015	Resist officer in execution of duty-T2	H 288943593: BOND S9: 18 MONTHS
NSW	CENTRAL LOCAL COURT	11/09/2015	Assault officer in execution of duty-T2	H 288943593: IMPRISONMEMT: 2 MONTHS COMMENCING 28/06/2015 CONCLUDING 27/08/2015
NSW	DOWNING CENTRE LOCAL COURT	29/08/2014	Drive conveyance taken w/o consent of owner -T2	H 216206995: COMMUNITY SERVICE ORDER: 100 HOURS
NSW	DOWNING CENTRE LOCAL COURT	29/08/2014	Drive with middle range PCA – 1st off	H 216206995: FINE: $1,000 DISQUALIFICATION: 12 MONTHS COMMENCING 29/08/2014 CONCLUDING 28/08/2015
NSW	DOWNING CENTRE LOCAL COURT	29/08/2014	Never licensed person drive vehicle on road – first offence	H 216206995: FINE: $400
NSW	BIDURA CHILDRENS COURT	17/04/2013	Robbery in company-SI	H 47807256: (CALL UP) CONTROL ORDER S33(1)(G): 3 MONTHS COMMENCING 15/01/2013 CONCLUDING 14/04/2013 (EECO 8078)
NSW	BIDURA CHILDRENS COURT	17/04/2013	Assault occasioning actual bodily harm-T2	H 50770381: (CALL UP) CONTROL ORDER S33(1)(G): 7 MONTHS COMMENCING 15/01/2013 CONCLUDING 14/08/2013 NON PAROLE PERIOD WITH CONDITIONS: 3 MONTHS SUPV NSW PROB SERVICE (EECO 8078)
NSW	BIDURA CHILDRENS COURT	17/04/2013	Steal from the person	H 50770381: (CALL UP) CONTROL ORDER S33(1)(G): 7 MONTHS COMMENCING 15/01/2013 CONCLUDING 14/08/2013 NON PAROLE PERIOD WITH CONDITIONS: 3 MONTHS SUPV NSW PROB SERVICE (EECO 8078)
NSW	BIDURA CHILDRENS COURT	17/04/2013	Common assault (DV)-T2	H 51476955: CONTROL ORDER S33(1)(G): 9 MONTHS COMMENCING 15/01/2013 CONCLUDING 14/10/2013 NON PAROLE PERIOD WITH CONDITIONS: 4 MONTHS COMMENCNING 15/01/2013 CONCLUDING 14/05/2013 RELEASE SUBJECT TO SUPV NSW PROB SERVICE SUPERVISION BY PROBATION PAROLE SERVICE
NSW	BIDURA CHILDRENS COURT	17/04/2013	Resist or hinder police officer in the execution of duty	H 51476955: PROBATION S33(1)(E): 18 MONTHS SUPV NSW PROB SERVICE
NSW	BIDURA CHILDRENS COURT	17/04/2013	Goods in personal custody suspected being stolen (not m/v)	H 50301061: CONTROL ORDER S33(1)(G): 1 MONTH COMMENCING 15/01/2013 CONCLUDING 14/02/2013
NSW	BIDURA CHILDRENS COURT	17/04/2013	Common assault (DV)-T2	H 50460046: CONTROL ORDER S33(1)(G): 9 MONTHS COMMENCING 15/01/2013 CONCLUDING 14/10/2013 NON PAROLE PERIOD WITH CONDITIONS: 4 MONTHS COMENCING 15/01/2013 CONCLUDING 14/05/2013 RELEASE SUBJECT TO SUPV NSW PROB SERVICE SUPERVISION BY PROBATION PAROLE SERVICE
NSW	BIDURA CHILDRENS COURT	17/04/2013	Contravention prohibition/restriction in AVO (Domestic)	H 50460046: CONTROL ORDER S33(1)(G): 9 MONTHS COMMENCING 15/01/2013 CONCLUDING 14/10/2013 NON PAROLE PERIOD WITH CONDITIONS: 4 MONTHS COMENCING 15/01/2013 CONCLUDING 14/05/2013 RELEASE SUBJECT TO SUPV NSW PROB SERVICE SUPERVISION BY PROBATION PAROLE SERVICE
NSW	BIDURA CHILDRENS COURT	17/04/2013	Destroy or damage property (DV)	H 50460046: PROBATION S33(1)(E): 18 MONTHS SUPV NSW PROB SERVICE
NSW	BIDURA CHILDRENS COURT	16/10/2012	Robbery in company-SI	H 47807256: COMMUNITY SERVICE ORDER S33(1)(F): 40HOURS
NSW	BIDURA CHILDRENS COURT	16/10/2012	Assault occasioning actual bodily harm -T2	H 50770381: CONTROL ORDER S33(1)(G): 7 MONTHS SENTENCE SUSPENDED S33(1B) WITH COND: 7 MONTHS SUPV JUVENILE JUSTICE
NSW	BIDURA CHILDRENS COURT	16/10/2012	Steal from the person	H 50770381: CONTROL ORDER S33(1)(G): 7 MONTHS SENTENCE SUSPENDED S33(1B) WITH COND: 7 MONTHS SUPV JUVENILE JUSTICE
NSW	BIDURA CHILDRENS COURT	23/03/2012	Resist officer in execution of duty-T2	H 47451939: probation s33(1)(e): 9 MONTHS SUPV JUVENILE JUSTICE
NSW	BIDURA CHILDRENS COURT	23/03/2012	Common assault-T2	H 47451939: BOND S33(1)(B): 9 MONTHS SUPV JUVENILE JUSTICE
NSW	BIDURA CHILDRENS COURT	24/10/2011	Affray-T1	H 213690893: BOND S33(1)(B): 8 MONTHS

I certify that the preceding 81 (eighty -one) paragraphs are a true copy of the reasons for the decision herein of

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

Associate

Dated: 10 July 2020

Date(s) of hearing:	25 June 2020 & 26 June 2020
Applicant:	By video
Solicitors for the Respondent:	Mr M Palfrey