Mukiza and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 1488
•25 May 2021
Mukiza and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1488 (25 May 2021)
Division:GENERAL DIVISION
File Number(s):2021/1407
Re:Mr Thierry Mukiza
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Tribunal:Senior Member B. Pola
Date:25 May 2021
Place:Brisbane
DECISION
Pursuant to s43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 25 February 2021 not to revoke the mandatory cancellation of the Applicant’s Class BS subclass 801 (Spouse) visa.
.............................[SGD]...........................................
Senior Member B.Pola
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class BS subclass 801 (Spouse) – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration and application of Ministerial Direction No. 90 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Chung and Minister for Immigration and Border Protection (Migration) [2017] AATA 895
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
R v Hemsley [2004] NSWCCA 228
TBNM and Minister for Home Affairs (Migration) [2019] AATA 850SECONDARY MATERIALS
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member B. Pola
25 May 2021INTRODUCTION AND BACKGROUND
The Applicant, Mr Thierry Mukiza, is a 28 year old citizen of Canada (originally born in Rwanda). Movement records indicate the Applicant was granted a Class BS subclass 801 (Spouse) visa (herein referred to as ‘Visa’ in these reasons) on arrival into Australia with his mother in November 2009, when he was 17 years of age (where he has since remained)[1].
[1] Exhibit G1, G6, page 1519.
The Tribunal observes the Applicant had escaped Rwanda with his father and mother in 1994 (at around two years of age), and had then lived in Zambia until approximately 2002 when the Applicant (at approximately eight years of age) and his mother had been accepted to live in Canada. The Tribunal notes that his father had sadly passed away just prior to their moving to Canada. After having resided in Canada for a number of years, the Applicant’s mother decided that they would leave Canada and move to Australia in 2009[2].
[2] Transcript 10 May 2021, page 9, lines 1 to 47; page 10, lines 1 to 6.
The Applicant has a criminal history in Australia which commenced relatively soon after their arrival in 2009, with convictions recorded in their criminal history from 2012, for offences relating to drugs and property. Later, their offending evolved into more serious offending including very serious traffic related offences which involved police pursuits amongst other offences[3].
[3] Exhibit G1, G2, pages 72 to 85.
The Applicant has previously had a decision to mandatorily cancel their visa revoked by an earlier decision of the Administrative Appeals Tribunal (herein referred to as the ‘Tribunal’) on 1 November 2019[4].
[4] Exhibit G1, G2, pages 131 to 155.
Just over two months after having had their visa restored to them, the Applicant was again involved in further criminal offending, this time involving serious traffic related offences which occurred in January 2020. Four of the six offences the Applicant was convicted of before the Queanbeyan Local Court on 9 March 2020 resulted in their being sentenced to a term of imprisonment of 12 months. The offences included drive motor vehicle during disqualification period – 2nd+off, drive recklessly/furiously or speed/manner dangerous – 1st off, drive conveyance taken w/o consent of owner – T2, and be carried in conveyance taken w/o consent of owner – T2.
The Tribunal observes there are further pending matters before the Australian Capital Territory (herein referred to as ‘ACT’) Magistrates Court for property and traffic related offending; which the Australian Federal Police have indicated will be pursued, subject to the outcome of the present proceedings before the Tribunal[5]. The Tribunal has been mindful not to apply adverse weight to offences which have not been proven.
[5] Exhibit G1, G2, pages 72 and 73; G10, pages 1530 to 1532; G11, pages 1533 to 1535; and G12, pages 1536
to 1539.
Whilst serving a term of imprisonment, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (herein referred to as ‘Minister’ or ‘Respondent’), pursuant to s501(3A) of the Migration Act 1959 (Cth) (herein referred to as the ‘Migration Act’), decided on 18 March 2020 to mandatorily cancel the Applicant’s Visa (herein referred to as the ‘Visa Cancellation Decision’), which was delivered by hand to the Applicant[6].
[6] Exhibit G1, G2, pages 50 to 53; and G2, pages 156 to 169.
Following the Visa Cancellation Decision, the Applicant made representations to the Respondent[7].
[7] Exhibit G1, G2, pages 96 to 130; G2, pages 242 to 1430.
On 2 March 2021, the Applicant was advised by a hand delivered letter that the Respondent had decided not to revoke the cancellation of the Applicant’s Visa pursuant to s501CA(4) of the Migration Act (herein referred to as the ‘Visa Cancellation Decision”).
The Applicant lodged an application with the Tribunal which was acknowledged as having been received on 10 March 2021; with the Applicant seeking a review of the abovementioned decision not to revoke the cancellation of his Visa, within the required time frame[8].
[8] Exhibit G1, G1, pages 1 to 26. For the Tribunal to have jurisdiction to review the decision, the Applicant must
have lodged the application for review with the Tribunal within nine days after the day on which he or she
received notification of the decision, refer to s500(6B) of the Migration Act.
The application was heard in Brisbane on 10 May 2021, with the Applicant self-represented and the Respondent represented by Mr Alex Booth of Clayton Utz. All parties appeared via video link. The Tribunal heard oral submissions from the Applicant and Respondent, in addition to submitted evidence as outlined in the Exhibit Register in Annexure 1 of these reasons. Additionally, the Tribunal heard evidence from the following witnesses called by the Applicant:
(i)The Applicant’s mother, Ms Antoinette Mukankwaya, who had provided numerous submissions in support of her son[9]; and
(ii)The Applicant’s step-father, Mr Peter Okwechime, who had provided a character reference in support of his step-son[10].
[9] Exhibit A4; Exhibit A5; Exhibit G1, G2, page 113, 114, and 220.
[10] Exhibit A3.
ISSUES
Legislation regarding the revocation of the mandatory cancellation of visas is found in s501CA(4) of the Migration Act, which provides:
“(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.”
As previously outlined in these reasons, the Applicant made representations to the Respondent as required by s501CA(4)(a) of the Migration Act[11]. The issue before the Tribunal is whether the discretion to revoke the mandatory cancellation of the Applicant’s Visa may be exercised.
[11] Exhibit G1, G10 to G12, pages 46 to 65.
The Tribunal refers to the Full Court of the Federal Court of Australia’s observations in the Minister for Home Affairs v Buadromo[12]:
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[13].
[Tribunal underline for emphasis]
[12] [2018] FCAFC 151.
[13] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
Therefore, there are two issues for consideration before the Tribunal which must be decided:
(i)whether the Applicant passes the character test; and
(ii)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant were to succeed on either ground, the weight of authority indicates that the Tribunal must revoke the cancellation of the Applicant’s visa[14].
[14] Ibid.
Does the Applicant pass the character test?
As previously referred to in these reasons, the character test is defined in s501(6) of the Migration Act. A person will not pass the character test if they have a “substantial criminal record” per s501(6)(a) of the Migration Act. Relevantly, s501(7)(c) of the Migration Act provides that a person is considered to have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Tribunal is of the view that the Applicant does not pass the character test as they have been convicted of numerous offences which received a term of imprisonment of 12 months or more, including[15]:
(i)be carried in conveyance taken w/o consent of owner – T2, for which the Applicant was sentenced to a term of imprisonment of 12 months before the Queanbeyan Local Court on 9 March 2020;
(ii)drive conveyance taken w/o consent of owner – T2, for which the Applicant was sentenced to a term of imprisonment of 12 months before the Queanbeyan Local Court on 9 March 2020;
(iii)drive recklessly/furiously or speed/ manner dangerous – 1st offence, for which the Applicant was sentenced to a term of imprisonment of 12 months before the Queanbeyan Local Court on 9 March 2020;
(iv)drive motor vehicle during disqualification period – 2nd+off, for which the Applicant was sentenced to a term of imprisonment of 12 months before the Queanbeyan Local Court on 9 March 2020; and
[15] Exhibit G1, G2, pages 72 to 85.
The Tribunal is of the view that the Applicant is therefore unable to rely on s501CA(4)(b)(i) of the Migration Act for the mandatory cancellation of his visa to be revoked.
Is there another reason why the cancellation of the Applicant’s Visa should be revoked?
In considering whether to exercise the discretion in accordance with s501CA(4)(b)(ii) of the Migration Act, the Tribunal is bound by s499(2A) of the Migration Act and must comply with directions made under the Migration Act.
In view of this, Direction No 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (herein referred to as the “Direction”) must be applied[16]. The Direction outlines a framework for decision makers with respect to exercising discretion in accordance with s501CA of the Migration Act. Paragraph 6 of the Direction provides:
“6. How to exercise the discretion
Informed by the principles in paragraph 5.2 above, a decision-maker must take into account the considerations identified in sections 8 & 9, where relevant to the decision.”
[16] On 15 April 2021, the former applicable direction, Direction No 70 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction No. 90 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
Paragraph 7 of the Direction provides that decision makers must take into account the Primary and Other Considerations relevant to the individual case, and that when applying the primary and other considerations, “information and evidence from independent and authoritative sources should be given appropriate weight”.
Paragraph 7(2) of the Direction provides that, “Primary considerations should generally be given greater weight than the other considerations”; additionally, paragraph 7(3) of the Direction provides that, “One or more primary considerations may outweigh other primary considerations”.
The considerations relevant in the context of a revocation decision appear in Paragraph 8 of the of the Direction, which stipulates the following primary considerations:
(i)Protection of the Australian community from criminal or other serious conduct (herein referred to as “Primary Consideration 1”);
(ii)Whether the conduct engaged in constituted family violence (herein referred to as “Primary Consideration 2”);
(iii)The best interests of minor children in Australia (herein referred to as “Primary Consideration 3”); and
(iv)Expectations of the Australian community (herein referred to as “Primary Consideration 4”).
The Other Considerations which must be taken into account are listed in paragraph 9 of the Direction. These considerations are:
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.
A number of principles are set out in paragraph 5.2 of the Direction which further guide decision makers in the exercise of their discretion, which the Tribunal has transposed:
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 engaged 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 measurable 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 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 by non-citizens who have 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 other 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 measurable risk of causing physical harm to the Australian community.
The Tribunal will now address the Primary Considerations contained within the Direction as they apply to the Applicant.
Primary Consideration 1 – Protection of the Australian community from criminal or other serious conduct
In considering Primary Consideration 1, paragraph 8.1(1) of the Direction, requires decision makers to 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.
Paragraph 8.1(1) of the Direction provides that entering or remaining in Australia is a privilege that Australia confers on non-citizens, with the expectation that they:
(i)are and have been law abiding;
(ii)will respect important institutions; and
(iii)will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of the Direction requires decision makers to give consideration to the following requirements when determining the weight to be applied to Primary Consideration 1:
(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.
In making these assessments, it is necessary to have regard to the Applicant’s criminal history. The Applicant’s criminal offending history can also be found in the s501 G‑Documents[17], and the material produced under summons[18], comprising:
[17] Exhibit G1.
[18] Exhibit R2.
(a)The Applicant’s criminal history in Australia which appears in a document entitled, “Nationally Coordinated History Check Results” dated 14 April 2020[19];
[19] Exhibit G1, G2, pages 72 to 85.
(b)Sentencing remarks of Magistrate Clisdell at the Local Court of New South Wales at Queanbeyan of 9 March 2020[20];
[20] Exhibit G1, G2, pages 86 to 91.
(c)Sentencing remarks of Judge Tupman at the District Court of New South Wales at Queanbeyan of 26 July 2018[21];
[21] Exhibit G1, G2, pages 170 to 173.
(d)Transcript of proceedings of the Magistrates Court of the ACT of 1 June 2018[22];
[22] Exhibit G1, G2, pages 174 to 182.
(e)Movement records of the Applicant[23];
[23] Exhibit G1, G2, pages 1431; Exhibit G1, G6, page 1519.
(f)Email correspondence between the Respondent and Goulburn Correction Centre[24];
[24] Exhibit G1, G4, pages 1511 to 1516.
(g)Email correspondence between the Respondent and Queanbeyan Local Court[25];
[25] Exhibit G1, G5, pages 1517 and 1518.
(h)Email correspondence between the Respondent and Department of New South Wales Corrective Services[26];
(i)Email correspondence between the Respondent and Goulburn Correction Centre[27];
(j)Email correspondence between the Respondent and ACT Magistrates Court[28];
(k)Email correspondence between the Respondent and the Australian Federal Police[29];
(l)Material produced under summons by New South Wales Police Service[30];
(m)Material produced under summons by Queanbeyan District Court[31];
(n)Material produced under summons by Queanbeyan Local Court[32]; and
(o)Material produced under summons by Australian Federal Police[33].
(p)
[26] Exhibit G1, G7, pages 1520 to 1522; G8, pages 1526 and 1527.
[27] Exhibit G1, G9, pages 1528 and 1529.
[28] Exhibit G1, G10, pages 1530 to 1532.
[29] Exhibit G1, G11, pages 1533 to 1535; G12, pages 1536 to 1539.
[30] Exhibit R2, SM1, pages 1 to 28.
[31] Exhibit R2, SM2, pages 29 to 153.
[32] Exhibit R2, SM3, pages 154 to 159.
[33] Exhibit R2, SM4, pages 160 to 460.
Overview of the Applicant’s criminal offending history
The Tribunal will provide an overview of the Applicant’s criminal offending history, which is summarised in the following table[34]:
[34] Exhibit G1, G2, pages 72 to 85.
Date of Appearance
Court
Offence
Sentence
11 May 2012
ACT Magistrates Court
ACT - Possess prohibited substance (cannabis 50g or less)
Convicted, released on good behaviour order for nine months
ACT - Possess prohibited substance (cannabis 50g or less)
Convicted, released on good behaviour order for nine months
ACT - Minor theft (replacement value $2,000 or less)
Convicted, released on good behaviour order for nine months
24 May 2012
ACT Magistrates Court
ACT - Minor theft (replacement value $2,000 or less)
Convicted, released on good behaviour order for 12 months, probation for 12 months
26 October 2012
ACT Magistrates Court
ACT - Arrest without warrant, person on bail
Arrest without warrant on bail
4 April 2013
ACT Magistrates Court
ACT - Arrest without warrant, person on bail
Arrest without warrant on bail
23 May 2013
ACT Magistrates Court
ACT - Possess prohibited substance (cannabis 50g or less)
Convicted, released on good behaviour order for 12 months
Cth - Trespass on premises
Convicted, released on good behaviour order for 12 months
Cth - Trespass on premises
Convicted, released on good behaviour order for 12 months
22 December 2014
ACT Magistrates Court
ACT - Obtain financial advantage by deception
Convicted, term of imprisonment of 1 month, served as full time detention
ACT - Obtain financial advantage by deception
Convicted, term of imprisonment of 1 month, served as full time detention (served concurrently)
ACT - Obtain property by deception
Convicted, term of imprisonment of two months, served as full time detention (served concurrently)
ACT - Obtain property by deception
Convicted, term of imprisonment of two months, served as full time detention (served concurrently)
ACT - Obtain property by deception
Convicted, term of imprisonment of two months, served as full time detention (served concurrently)
ACT - Minor theft (replacement value $2,000 or less)
Convicted, term of imprisonment of one month, served as full time detention (served concurrently)
5 June 2015
ACT Magistrates Court
ACT - Arrest without warrant person on bail
Arrest without warrant on bail
7 July 2015
ACT Magistrates Court
ACT - Failure to appear after bail undertaking - CRT
Convicted and sentenced to three months imprisonment
ACT - Possess offensive weapon with intent
Convicted and sentenced to two months imprisonment (served concurrently)
ACT - Failure to appear after bail undertaking - CRT
Convicted and sentenced to three months imprisonment (served concurrently)
ACT - Failure to appear after bail undertaking - CRT
Convicted and sentenced to two months imprisonment (served concurrently)
ACT - Theft
Convicted and sentenced to 10 months imprisonment, suspended on good behaviour order for 15 months
30 November 2015
ACT Magistrates Court
ACT - Drive while licence suspended by law
Convicted and sentenced to two months imprisonment, suspended on good behaviour for 18 months, with probation for 12 months
ACT - Aggravated furious/reckless/dangerous driving
Convicted and sentenced to three months imprisonment, suspended on good behaviour for 18 months, with probation for 12 months
ACT - Obstruct/resist territory public official (knowingly)
Convicted and fined
ACT - Not obey direction of police/Auth person
Convicted, no further penalty
ACT - Drive while licence suspended by law
Convicted, fined, disqualified from holding/obtaining licence for three months
ACT - Aggravated furious/reckless/dangerous driving
Convicted and fined, disqualified from holding/obtaining a licence for six months
ACT - Not obey direction of police/auth person
Convicted no further penalty
ACT - Burglary
Convicted and sentenced to imprisonment for eight months
ACT - Minor theft (replacement value $2,000 or less)
Convicted and sentenced to imprisonment for three months
ACT - Drive while licence suspended by law
Convicted and fined, disqualified from holding/obtaining a licence for three months
ACT - Driver/Driver Trainer prescribed drug in oral fluid / blood
Convicted and fined, disqualified from holding/obtaining a licence for six months
ACT - Drive while licence suspended by law
Convicted and fined, disqualified from holding/obtaining a licence for three months, of which two months served concurrent
ACT - Drive while licence suspended by law
Convicted and fined, disqualified from holding/obtaining a licence for three months
ACT - Drive while licence suspended by law
Convicted and fined, disqualified from holding/obtaining a licence for three months
5 July 2016
ACT Magistrates Court
ACT - Failure to appear after bail undertaking - CRT
Convicted and sentenced to three months imprisonment
ACT - Drive whilst disqualified
Convicted and sentenced to two months imprisonment
ACT - Number plate / rego no properly issued/issued for another vehicle
Convicted and fined
ACT - use uninsured vehicle
Convicted and fined
ACT - use unregistered/suspended vehicle
Convicted and fined
ACT - Driver seatbelt not adj. and fastened properly
Convicted and fined
9 February 2017
ACT Magistrates Court
ACT - Drive whilst disqualified
Convicted and sentenced to three months imprisonment, disqualified from holding/obtaining a licence for 24 months
9 February 2018
ACT Magistrates Court
ACT - Fail to stop motor vehicle for police
Convicted and sentenced to three months imprisonment
ACT - Use of uninsured vehicle
Convicted and fined
ACT - Driver/Driver Trainer prescribed drug in oral fluid / blood
Convicted and released on good behaviour bond for 12 months, probation for 12 months (methylamphetamine)
ACT - use unregistered/suspended vehicle
Convicted and fined
ACT - Fail to stop motor vehicle for police
Convicted and sentenced to two months imprisonment
1 June 2018
Queanbeyan Local Court
Steal motor vehicle
Convicted and sentenced to nine months imprisonment, non-parole period six months [SEVERITY APPEAL LODGED]
Drive motor vehicle during disqualification period - 2nd off
Convicted and sentenced to seven months imprisonment, disqualified from driving for 12 months [SEVERITY APPEAL LODGED]
Police pursuit - not stop - drive recklessly - 1st off
Sentenced to imprisonment for 18 months, non-parole period 12 months [SEVERITY APPEAL LODGED]
Class A motor vehicle exceed speed 45 km/hr estimated
Conviction with no other penalty, disqualified driver for six months
26 July 2018
Queanbeyan District Court
Steal motor vehicle
Order varied, imprisonment six months
Drive motor vehicle during disqualification period - 2nd off
Order varied, imprisonment six months, disqualification for 12 months
Police pursuit - not stop - drive recklessly - 1st off
Order varied, imprisonment 18 months, non-parole period of nine months, disqualification from driving for three years
21 November 2018
Cooma Local Court
Drive vehicle under influence of drugs - 1st offence
Community correction order nine months, driver disqualification two years
9 March 2020
Queanbeyan Local Court
Drive motor vehicle during disqualification period - 2nd off
Convicted, sentenced to imprisonment for 12 months, non-parole period of eight months, driver disqualification 12 months
Drive recklessly/furiously or speed/ manner dangerous - 1st off
Convicted, sentenced to imprisonment for 12 months, non-parole period of eight months, driver disqualification three years
Unlawfully possess number plates
Conviction with no other penalty, property to owner
Drive conveyance taken w/o consent of owner
Convicted, sentenced to imprisonment for 12 months, non-parole period of eight months
Be carried in conveyance taken w/o consent of owner
Convicted, sentenced to imprisonment for 12 months, non-parole period of eight months
Negligent driving (no death or grievous bodily harm)
Fined
27 March 2020
ACT Magistrates Court
ACT - Aggravated burglary, intent to commit theft
PENDING MATTER[35]
ACT - Joint commission theft
PENDING MATTER[36]
ACT - Ride/drive motor vehicle without consent
PENDING MATTER[37]
[35] The Tribunal has not applied adverse weight as offences are not proven.
[36] Ibid.
[37] Ibid.
Before considering the Applicant’s criminal history in more detail, the Tribunal observes the Applicant has been diagnosed with “Schizophrenia – multiple episodes”. The Tribunal refers to the following information contained in an undated report from Mr Matt Visser, Clinical Psychologist[38]:
“… I have assessed Mr Mukiza in relation to his mental health, and have found evidence to support the previous diagnosis:
· 295.90 Schizophrenia, multiple episodes, in current partial remission
In addition, there is strong evidence to suggest substance dependence, specifically cannabis and methamphetamines. These conditions could be considered to be in partial remission, in a controlled setting. The interaction between his psychotic disorder and his drug use is clinically inseparable, with the evidence suggesting that they have historically co-occurred, and are both highly correlated to his offending behaviour.
Part of the difficulty in a clear separation of these issues is that Mr Mukiza is a consistently poor historian. There are numerous factual inconsistencies in his account of events, and he invalidated his psychological testing in a way that suggested both inattention and an overrepresentation of his problems. It is possible that these inaccuracies are due to poor memory from a long history of high-level substance use, and the negative symptoms (e.g. lower cognitive capacity) associated with psychotic illness. It is also possible that there is a degree of deliberate misinformation being presented. The most likely is a combination of these elements. While this would usually cloud the clinical picture, there is a comprehensive record kept by mental health and Corrections staff including direct observation dating back to his first presentation at age 18. From that record a clear picture of his psychological history can be understood…
… Mr Mukiza could be described in broad terms as a polysubstance abuser, with periods using a range of different illicit substances. His primary drugs of abuse however are methamphetamine and cannabis, both of which are well known for their impact on psychotic illness (e.g. Schizophrenia). His drug use appears to follow a pattern where he will remain on his prescribed medication for a time, then for whatever reason will be unable to fill a script. He will be contacted by friends, begin using methamphetamines and/or cannabis, then will commit crime while high. During incarceration he will either significant slow his use or cease, until he is released and the cycle will start again…”
[38] Exhibit G1, G1, pages 7 to 22; repeated at Exhibit G1, G2, pages 115 to 130; and repeated at Exhibit A2.
The Tribunal accepts that the Applicant has suffered from Schizophrenia for a considerable period of time, with the earliest diagnosis made approximately a decade ago when the Applicant was still in high school (referred to in the medical evidence submitted and supported in the diagnoses made by Mr Visser in his undated report)[39]. The Tribunal has considered the Applicant’s criminal conduct in the context of his diagnosed Schizophrenia, and the principle regarding reduced moral culpability in circumstances where the Applicant’s offending is linked to fluctuations in their mental health condition (also previously considered in reasons of the Tribunal in November 2019)[40].
[39] Exhibit A2, page 6.
[40] R v Hemsley [2004] NSWCCA 228, per Sperling J [33].
Whilst the Tribunal is sympathetic to the Applicant’s personal history and mental health condition, it is the Tribunal’s view that this does not absolve the Applicant from their failure to (1) take adequate steps to address their mental health (with respect to consistently adhering to prescribed treatment(s) and medication(s)); and (2) engaging in rehabilitation to abstain from prohibited drug use which exacerbates their Schizophrenia. Both of these factors have contributed to the Applicant’s criminal conduct. This is explored more fulsomely by the Tribunal in the later reasons of this decision.
The Tribunal notes that none of the sentencing judges before whom the Applicant has appeared indicated that the Applicant was (1) unable to be held responsible for his criminal conduct; or (2) unfit to plead against the offences which he was ultimately convicted of. The Tribunal refers to the following sentencing remarks to this point:
(i)His Honour Magistrate Clisdell on 9 March 2020 in the Local Court of Queanbeyan who stated, “…Mr Mukiza may have had a most unfortunate and terrifying childhood, and I accept that someone who went through what happened in Rwanda would be scarred for life. It does not however entitle people to commit offences where they scare the living daylights out of other people. It is a sad situation that perhaps he has untreated post-traumatic stress disorder. That is something he can deal with if he wishes to…”[41].
(ii)Her Honour Judge Tupman on 26 July 2018 in the District Court of New South Wales who stated, “…He is a person with serious mental health issues. He needs a longer than normal period of supervision in the community to deal with that and also to deal with what at that stage was his serious drug addiction, which exacerbated his mental health issues. He is a Rwandan refugee who came to Australia with his mother via a circuitous route. That route and that history is well known to the Courts. His mother is available to him for accommodation and support, which increases his prospects of rehabilitation. Now that he has been in custody since 6 April 2018, the day of this pursuit and his arrest, he has stopped using illegal drugs and he has started to take his anti-psychotic medication again, which is Seroquel. He was not using the anti-psychotic medication at the time these offences occurred…”[42].
[41] Exhibit G1, G2, page 89.
[42] Exhibit G1, G2, page 171.
With respect to the Applicant’s criminal conduct, the Tribunal will outline further details regarding some of the incidents in the reasons which follow.
January 2020
New South Wales Police Facts Sheet outlines a sequence of events which occurred in early January 2020, involving the Applicant (observing that this was just over two months after the Applicant had their visa restored to them in the first set of proceedings before the Tribunal, with the decision published in November 2019)[43]. The Tribunal refers to the following exchange with the Applicant regarding his living situation and medication in the lead up to his offences which occurred in January 2020, as well as the facts related to his offending[44]:
[43] Exhibit R2, SM2, pages 119 to 122.
[44] Transcript 10 May 2021, page 30, lines 15 to 30; and page 33, lines 1 to 36.
“Respondent: If I can get the facts straight, so you were living with your mum for a bit; you had a fight; your script ran out, and you went to live with a friend for about a week?
Applicant: ---Yes.
Respondent: Your friend then took you to a party in Queanbeyan, and that was where you think your drink was spiked?
Applicant: ---Yes.
Respondent: And then when did you come out of psychosis?
Applicant: ---When I was being driven back to the police station. So when I was arrested - after the car accident when I was arrested, I was sort of coming to in the back of the paddy wagon. So when I got to the police station, you know, the police officers that attended the scene, you know, they explained to me that, you know, mate, you know, you were delusional, like I wasn’t making sense; you know, I was clearly going through an episode, you know, they could tell, even though they didn’t know that I had a mental history. But that’s what I was told that, yes.
….
Respondent: Yes, to my understanding drive conveyance taken without consent of owner means you were driving a car that wasn’t yours, without the owner’s consent?
Applicant: ---Yes.
Respondent: And being carried in conveyance means you were a passenger in a car that someone else has taken without the owner’s consent. Are you saying?
Applicant: ---Yes
Respondent: You did these things, or you didn’t do these things?
Applicant: ---No, I’m saying I did do these things, but I’m saying I didn’t steal the car.
Respondent: Right, so when did you do these things?
Applicant: ---During the week - during the week, probably during the week probably before my accident, but I believe one of the charges was a different car. My friend - I remember there was a Mazda, and I remember the officers actually explaining to me that these two charges are different cars. So, one of them is - is where the accident I got in, and the one where I’m being carried in conveyance vehicle was - I was a passenger in the Mazda, maybe a week or two weeks before I was arrested.
Respondent: Right, okay. So?
Applicant: ---So they’re two different cars.
Respondent: The car that you drove on the Sunday was a Toyota Camry, that was the car you crashed?
Applicant: ---Yes.
Respondent: Okay. And then the car that you were carried in earlier was a Mazda, and that’s a separate incident then?
Applicant: ---Yes, that’s a separate incident.
Respondent: Okay, so you don’t know anything about the Queanbeyan aquatic centre then?
Applicant: ---Yes, exactly.
Respondent: So, what happened with the Mazda?
Applicant: ---I believe I was on - I was - you know I was on camera. I was probably seen on camera in the car and my mate had actually crashed that car, and he ended up crashing the car, and he told me about it, and some of my belongings were in the car, and so the police officers from there determined that was in that car.
Respondent: Okay. And did you know it was stolen at the time?
Applicant: ---No, I did not know.”
The Tribunal observes that on 9 March 2020 when the Applicant appeared before the Queanbeyan Local Court, they were convicted and sentenced for the following offences[45]:
(i)Drive motor vehicle during disqualification period - 2nd+ off, convicted, sentenced to imprisonment for 12 months, non-parole period of eight months, driver disqualification 12 months;
(ii)Drive recklessly/furiously or speed/ manner dangerous - 1st off, convicted, sentenced to imprisonment for 12 months, non-parole period of 8 months, driver disqualification three years;
(iii)Unlawfully possess number plates, conviction with no other penalty, property to owner;
(iv)Drive conveyance taken w/o consent of owner, convicted, sentenced to imprisonment for 12 months, non-parole period of eight months;
(v)Be carried in conveyance taken w/o consent of owner, convicted, sentenced to imprisonment for 12 months, non-parole period of eight months; and
(vi)Negligent driving, no death or grievous bodily harm, received a fine.
1 June 2018
[45] Exhibit G1, G2, page 73.
The Applicant appeared before the Queanbeyan Local Court on 1 June 2018 and was convicted and sentenced for the following offences[46]:
(i)Police pursuit – not stop – drive recklessly – 1st off – T2, sentenced to imprisonment for 18 months, with a non-parole period of 12 months;
(ii)Drive motor vehicle during disqualification period – 2nd + off, sentenced to imprisonment for seven months, disqualification from driving for 12 months;
(iii)Steal motor vehicle – T1, sentenced to imprisonment for nine months, non-parole period of six months; and
(iv)Class A m/v exceed speed > 45 km/hr Estimated, conviction with no other penalty, disqualification from driving for six months.
[46] Exhibit G1, G2, page 74.
The Tribunal observes that the Applicant appealed the severity of the sentences imposed by the court for the first three convictions above, and on 26 July 2018 the Queanbeyan District Court handed down the following sentences[47]:
(i)Police pursuit – not stop – drive recklessly – 1st off – T2, sentenced to imprisonment for 18 months, with a non-parole period of nine months, disqualification from driving for three years;
(ii)Drive motor vehicle during disqualification period – 2nd+ off, sentenced to imprisonment for six months, disqualification from driving for 12 months; and
(iii)Steal motor vehicle – T1, sentenced to imprisonment for six months.
[47] Ibid.
The Tribunal refers to the sentencing remarks of Her Honour Judge Tupman in the Queanbeyan District Court on 26 July 2018, describing the events of the Applicant’s offending[48]:
[48] Exhibit G1, G2, pages 170 to 173.
“… The police pursuit was objectively very serious. He stole a car by going into someone’s house through an unlocked door, taking car keys from inside the house, getting into the car and driving away. He provided explanations to the police which amounted to something like non-exculpatory duress, but I accept that they were fanciful explanations brought about more probably than not by a combination of his mental illness and the fact that he was, at the time, using the drug, ice, extensively. He then drove away.
The owner of the vehicle could see that it was being stolen and in what could have only be described as fairly colourful circumstances, attempted to stop it from being taken. He notified the police. The police saw the vehicle and they started to purse it.
The pursuit then took a considerable period of time, involving more than one police car. He reached speeds of up to 150 kph. This was in the morning. He drove through school zones at more than double the 40 kilometre speed limit. He crossed onto the wrong side of the road on many occasions.
Oncoming vehicles had to stop. It is very fortunate indeed that there were no collisions and nobody was hurt. He, in the vernacular, blew out the car during the course of this by the excessive speeds he was driving. He was disqualified. That may or may not have been his motive for not stopping, but that is hard to gauge, given the mental state that he was in at the time. It is a very serious police pursuit.
The Magistrate imposed a head sentence of 18 months for that. Whilst my role is not necessarily to either approve or disapprove or uphold or not uphold that sentence, I do accept that that is an appropriate sentence. The issue is what the non-parole should be.
He is a person with serious mental health issues. He needs a longer than normal period of supervision in the community to deal with that and also to deal with what at that stage was his serious drug addiction, which exacerbated his mental health issues. He is a Rwandan refugee who came to Australia with his mother via a circuitous route. That route and that history is well known to the Courts.
His mother is available to him for accommodation and support, which increases his prospects of rehabilitation. Now that he has been in custody since 6 April 2018, the day of this pursuit and his arrest, he has stopped using illegal drugs and he has started to take his anti-psychotic medication again, which is Seroquel. He was not using the anti-psychotic medication at the time these offences occurred.
He is now in a situation in which he indicates, and which demonstrates, insight into his offending behaviour. He has shown remorse and contrition. His prospects of rehabilitation must be guarded, given his mental illness and previous drug addiction, but are entirely dependent on his no longer using illegal drugs and continuing to receive treatment for his mental illness.
He has an extremely lengthy traffic record in the ACT. He in fact comes from the ACT. This offence occurred in Queanbeyan, this it occurred in New South Wales outside the ACT. He has no criminal record in New South Wales and a very minor traffic record in New South Wales, but his ACT criminal and traffic record are extensive and disentitle him to any leniency.
He pleaded guilty in the Local Court at the first opportunity. His mental illness makes him a poor vehicle for general deterrence. The Magistrate effected a degree of partial accumulation on the steal motor vehicle charge with the police pursuit charge. It seems to me that that is not necessary to reflect total criminality in this case. The fact that he stole the motor vehicle does not in my view, increase the overall criminality. It is a relatively serious steal motor vehicle, given the circumstances in which it occurred, but there is no need for an increase in the overall sentence.
There are special circumstances as I have said, mainly the need for a longer than normal period of supervision in the community…”
[sic; Tribunal bold for emphasis]
When the facts of these convictions were put to the Applicant at the hearing, the Applicant largely accepted them, but stated that the keys were in the ignition of the car and that he did not open the door to the property the car was taken from[49]. With respect to the Applicant’s mental health at the time leading up the offending on this occasion, the Tribunal refers to the following exchange with the Applicant[50]:
[49] Exhibit R2, SM2, pages 50 to 55; Transcript 10 May 2021, page 20, lines 41 to 47; and page 21, lines 1 to[50] Transcript 10 May 2021, page 21, lines 27 to 38; page 23, lines 24 to 40.
“Respondent: I’ve got a few questions about that. Were you in a state of psychosis at this time?
Applicant: Yes.
Respondent: You were blacked out at this time?
Applicant: When I was in the car, yes.
Respondent: Do you remember the events before you got to the car?
Applicant: I remember being in the car, driving, leaving Canberra and I was in the backseat of an SUV with two people in the front seat and that’s the last thing I remember.
Respondent: Then what is the next thing you remember?
Applicant: When I was basically at the – arriving at the police station in Queanbeyan, at the Queanbeyan police station.
…
Respondent: I want you to explain what you were doing in the week before that happened and then, after that, in the 24 hours before this happened? Were you living with your mum at that time?
Applicant: ---No, I was not. I was - during, like, let’s say the week before this happened, I had just met someone, like a girl, just met a girl. And you know, there was - I was renting a room in a flat in Belconnen, it was one of my mate, had a friend who he wasn’t living there but he had a flat in his name, so I was renting a room there. And just met a girl, so I was hanging out with her heaps and yes, sort of - yes, so the weeks prior to what happened here, you know. Like I said before, I just was sort of - I was not - I was - sorry? … Yes, so, I was saying, yes, the week before this, I was staying at a girl’s house who I didn’t, you know, have any of my medications there and I was smoking marijuana as well.”
Offending in late 2013, Convicted in July 2015
Australian Federal Police records indicate the following events involving the Applicant and a hire car[51]:
[51] Exhibit R2, SM4, pages 250 to 254.
“On Thursday 23 May 2013, Thierry MUKIZA, [date of birth redacted], hereafter referred to as the Defendant before the Court was convicted for Trespass on Premises and Possess Prohibited Substance. The Defendant was released upon entering a Good Behaviour Order for a period of 12 months.
The Defendant subsequently breached his Good Behaviour Order by failing to accept the supervision of ACT Corrective Services and obey all reasonable directions.
About 1.30 pm, on Tuesday 5 November 2013, Police received a report on behalf of Hertz Australia Proprietary Limited that one of its fleet vehicles had been stolen. The vehicle was described as a silver Toyota Corolla hatchback bearing New South Wales (NSW) registration [redacted – registration].
On Wednesday 20 November 2013, a Warrant - breach of good behaviour obligations etc, warrant number 13/0705, was issued by the Magistrates Court of the Australian Capital Territory (ACT) for the arrest of the Defendant.
About 7.27 pm, Wednesday 27 November 2013 Police observed a silver Toyota Corolla hatchback bearing New South Wales (NSW) registration [redacted – registration] travelling north on Mouat Street, Lyneham in the ACT.
Police recognised this as a vehicle that had been reported stolen and attempted to stop the vehicle on Ellenborough Street, Kaleen. Police activated the patrol vehicle's warning lights and siren and followed the vehicle for a short distance at speeds of up to 100 kilometres per hour before it stopped on Ellenborough Street, Kaleen.
About 7 .28 pm that same date, the Defendant was identified as the driver of the vehicle. The Defendant provided Police with an ACT Driver's Licence number [redacted]. Police were satisfied that the details and photographic image recorded on the driver's licence were of the Defendant.
Subsequent checks with ACT Police Operations revealed that the Defendant was the subject of an arrest warrant number 13/0705.
About 8.10 pm that same date, the Defendant was informed of his arrest, cautioned and shortly after was conveyed to the ACT Watch House…
Mr [redacted] informed Police that the Defendant had contacted Hertz Mitchell by telephone on 1 November 2013 requesting a cheap car for seven days hire. That same afternoon when the Defendant attended to collect the car, he informed Mr [redacted] act that he only wanted it for one day. As the booking had been made for seven days, Mr [redacted] insisted the Defendant pay for four days hire and provide a $100.00 deposit. Four days hire and a $100.00 was subsequently charged to the Defendant's credit card.
On that date, a rental agreement was signed whereby his photographic identification was sighted by Hertz staff. A copy of that rental agreement will be made available to Police at a later time.
A few days later the Defendant telephoned Hertz Mitchell again wanting to extend the car hire for another day but stating he did not have enough funds on the credit card . Attempts to pre-authorise the credit card for another day's hire were declined.
Employees of Hertz attempted to contact the Defendant via the mobile phone provided by him, leaving about 15 voicemail messages for him. To date the Defendant had not replied to these messages.
As of 4 November 2013, the Defendant did not have permission use the motor vehicle belonging to Hertz Australia Proprietary Limited.
Police offered the Defendant the opportunity to participate in a digital record of interview. The Defendant declined to participate in an interview.
While at the ACT Watch House, the Defendant was shown a copy of the arrest warrant. The Defendant agreed he was the person named on the warrant…”
[Tribunal redactions]
These events were put to the Applicant during the course of the hearing, the Tribunal refers to the following exchange[52]:
“Respondent: The next one I want to talk to you about, the facts are on page 251 to 255 of the (indistinct) bundle and you were convicted of theft on 7 July 2015 and you got a 10 month suspended imprisonment sentence. It looks like you rented a car from Hertz and then you stole the car and never returned it. Is that right?
Applicant: I do remember this. I rented the car and I actually called the company and I asked for an extension on the car and the person I spoke with said, you know, because I had put a security deposit before I rented the car, he said to me that, “No worries. If you want an extension just keep the car but when you return it, when you eventually return it, you have to return it with full payment,” of the time I’d had the car.
Respondent: What happened then?
Applicant: Then so I said, “No worries. I’ll go ahead and I’ll extend it and when I do come to return the car I’ll bring full payment.” And then, you know, I was driving one day and I got pulled over by a police officer and, yes, so then the car was seized.
Respondent: Was it your intention to return the car?
Applicant: Yes.”
[52] Transcript 10 May 2021, page 27, lines 1 to 17.
The Applicant appeared before the ACT Magistrates Court on 7 July 2015 and received the following[53]:
(i)Failure to appear after bail undertaking, convicted and sentenced to three months imprisonment;
(ii)Possess offensive weapon with intent, convicted and sentenced to two months imprisonment;
(iii)Failure to appear after bail undertaking, convicted and sentenced to three months imprisonment;
(iv)Failure to appear after bail undertaking, convicted and sentenced to two months imprisonment; and
(v)Theft, convicted and sentenced to 10 months imprisonment, suspended on good behaviour order for 15 months.
December 2014
[53] Exhibit G1, G2, pages 79 and 80.
The Australian Federal Police Statement of Facts outlines an incident involving the Applicant where on 12 December 2014 at around 4pm, a backpack was taken from a leisure centre containing (amongst other items) bank cards, drivers licence and Medicare cards in addition to cash belonging to the victim[54]. Just under an hour later at a nearby shopping centre, the victim’s cards were used to make purchases at a number of shops, and subsequently used to ride public transport. When police made inquiries with relevant businesses with respect to Close Circuit Television (herein referred to as “CCTV”) footage of the individual who had used the victim’s cards, the individual involved was identified as the Applicant.
[54] Exhibit R2, SM4, pages 342 to 345.
On 16 December 2014, police attended an address known to the Applicant and found the Applicant and his girlfriend at the time, to be wearing products purchased with the victim’s card, in addition to finding other items when searching the premise. The Applicant was subsequently arrested.
On the 22 December 2014, the Applicant appeared before the ACT Magistrates Court and was convicted of six counts of obtain property by deception and one count of minor theft (replacement value $2,000 or less)[55]. The Applicant received the following sentences:
(i)Minor theft (replacement value $2,000 or less), one month of imprisonment;
(ii)For two counts of obtain property by deception, one month of imprisonment each (served concurrently); and
(iii)For three counts of obtain property by deception, two months of imprisonment each (served concurrently), with one of these counts releasing the Applicant immediately on the conditions of an order with respect to good behaviour for 12 months.
[55] Exhibit G1, G2, pages 80 to 82.
When this offending was put to the Applicant, the Tribunal observes the following exchange[56]:
[56] Transcript 10 May 2021, page 26, lines 37 to 46.
“Respondent: - - - for these it says you were charged on 22 December 2014 for obtain financial advantage by deception. It looks like someone left their wallet at Gungahlin Leisure Centre and you went through it and stole quite a few cards and a bit of cash, and then you used [redacted] cards to purchase some items, quite a few items at different stores. Does that sound familiar to you, Mr Mukiza?
Applicant: Yes, I remember this.
Respondent: Were you taking your medication at the time that happened?
Applicant: No.
Respondent: Do you think you were doing this because you were in psychosis?
Applicant: Yes.”
[Tribunal redactions]
March to May 2012
On 11 May 2012, the Applicant appeared before the ACT Magistrates Court and was convicted of minor theft (replacement value $2,000 or less)[57]. The Tribunal has referred to the Australian Federal Police Statement of Facts which states that on 5 March 2012, the Applicant went to the hard-drive section of a JB Hi-Fi shop, and was observed ripping open the box and emptying the package in an aisle of the shop by employees[58].
[57] Exhibit G1, G2, page 84.
[58] Exhibit R2, SM4, pages 182 to 185.
The CCTV footage revealed the Applicant opening and concealing stolen goods in their left pocket. The Applicant had proceeded to leave the store, but upon exiting was given the chance by staff to pay for the goods before he left the store, with the Applicant stating that they had not taken anything. The Applicant was shown the CCTV footage and then removed the items he had concealed in his pocket. The Applicant was cautioned by police for theft. The shopping centre then placed a six month ban on the Applicant from attending the shopping centre.
The Applicant was subsequently taken to the police station for a recorded interview, where he revealed he had also taken a second item from the store hidden in his right shoe, valued at $199.
The Applicant was convicted and received a sentence of a good behaviour bond for a period of nine months[59].
[59] Exhibit G1, G2, pages 84 and 85.
The Applicant was questioned as to the circumstances of their offending, and the Tribunal refers to the following exchange[60]:
“Respondent: It looks like it was in JB Hi-Fi you stole an external hard drive and you were charged and convicted for that. Was this just for your personal usage? Why did you do that?
Applicant: Yes, I’m not really too sure because this was when I was going through episodes.
Respondent: You were suffering from schizophrenia at this time but were you taking your medication?
Applicant: No, I wasn’t.”
[60] Transcript 10 May 2021, page 26, lines 24 to 30.
The nature and seriousness of the Applicant’s conduct
When evaluating the nature and the seriousness of the Applicant’s conduct, paragraph 8.1.1(1) of the Direction refers decision makers to relevant considerations which must be assessed and taken into account when considering the nature and seriousness of the Applicant’s conduct.
Upon a wholistic review of the Applicant’s criminal offending record and other conduct, the Tribunal is of the view that sub-paragraphs (b)(ii), (c), (d), (e), and (g) of paragraph 8.1.1(1) of the Direction have application with respect to the nature and seriousness of the Applicant’s conduct.
Sub-paragraph (b)(ii) of paragraph 8.1.1(1) of the Direction requires a decision maker to give consideration to any 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.
Whilst not all instances were ventilated at the hearing, the evidence before the Tribunal records the Applicant having received convictions with respect to his conduct involving the police[61]. On 30 November 2015, before the ACT Magistrates Court the Applicant was convicted of two counts of not obey direction of police/authorised person and was convicted, with no further penalty[62]. In addition, the Applicant was convicted of one count of obstruct/resist territory public official (knowingly) and was fined[63].
[61] Exhibit G1, G2, pages 72 to 85.
[62] Exhibit R2, SM4, pages 375 to 377; and Exhibit R2, SM4, pages 391 to 394.
[63] Exhibit R2, SM4, pages 386 to 388.
With respect to the Applicant’s convictions regarding not obey direction of police/authorised person, they relate to the offending of the Applicant which occurred on 5 June 2015. Both offences involved (1) the Applicant ignoring police sirens and failing to obey the directions of police by pulling over; and (2) the Applicant speeding away from police.
With respect to the Applicant’s conviction regarding obstruct/resist territory public official (knowingly), it was a result of the Applicant’s offending which had occurred on 6 June 2015. Police had sought to arrest the Applicant who is reported to have been yelling and thrashing around violently, and actively resisting arrest. The incident ultimately resulted in police having to taser the Applicant.
Additionally, on 9 February 2018, again before the ACT Magistrates Court the Applicant was convicted of two counts of fail to stop motor vehicle for police[64]. For one of these counts, the Applicant was sentenced to a term of imprisonment of three months, and for the other he was sentenced to a term of imprisonment of two months. Both of these convictions related to the Applicant failing to stop for police when their sirens had been activated.
[64] Exhibit R2, SM4, pages 409 to 415; and Exhibit R2, SM4, pages 417 to 421.
The Tribunal is of the view that the Applicant’s convictions resulting from their offending with respect to not obeying the directions from police and obstruct/resist territory official, attract the application of sub-paragraph (b)(ii) of paragraph 8.1.1(1) of the Direction, and finds the nature of the Applicant’s offending is viewed seriously.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision maker to give consideration to the sentence imposed by the courts for a crime or conduct with the exception of the crimes or conduct mentioned in subparagraph 8.1.1(1) (a)(ii), (a)(iii) or (b)(i) (which in the Tribunal’s view do not have application to the factual circumstances of the Applicant in the present matter).
The Tribunal has previously outlined the criminal history of the Applicant, which began shortly after their arrival in Australia in 2009. The Applicant’s first criminal convictions were recorded in 2012 when the Applicant was 19 years of age, and continued through in each year to 2020 (with exception of 2019, when the Applicant spent the predominant part of this year in criminal custody and immigration detention).
The Tribunal observes that over the course of the Applicant’s criminal offending history, they have received the benefit of multiple good behaviour bonds and fines with respect to their earlier convictions, having been sentenced on five occasions prior to their first term of imprisonment being handed down upon them in 2014.
The Applicant’s conduct has seen him appear before lawful authority for 16 separate sentencing episodes involving more than 60 offences, culminating in the sentencing of custodial terms of more than 11 years (the Tribunal is mindful that parole release dates did come into operation reducing the total time the Applicant spent in criminal custody).
The Tribunal further observes that (1) sentences involving imprisonment are usually the last resort in the sentencing hierarchy; and (2) the Applicant’s offending resulted in the sentencing of total custodial terms totalling more than 11 years, which is almost equivalent to the amount of time the Applicant has resided in Australia.
The Tribunal is of the view that sub-paragraph (c) of paragraph 8.1.1(1) of the Direction is enlivened, and the custodial sentences imposed by the Courts on the Applicant for his convictions are lengthy, reflective of the very serious nature of the Applicant’s criminal offending.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction requires a decision maker to give consideration to the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness.
The Tribunal is of the view that there is indeed a pattern of frequency and increasing seriousness when considering the Applicant’s criminal offending history over time[65]. The Applicant’s criminal offending started out with drug related offending in 2012 with respect to convictions regarding the possession of prohibited drugs (which the Tribunal accepts are less serious offences in terms of the range of criminal offending involving drugs). From 2012, the Applicant’s criminal offending evolved to include property related offending through to 2014, when the Applicant was first handed his custodial sentences.
[65] Exhibit G1, G2, pages 72 to 85.
The Tribunal has previously stated that the Applicant had appeared before lawful authority for 16 separate sentencing episodes. The Tribunal observes that 10 of the 16 sentencing episodes occurred from 2015 onwards, and these dealt with the majority of the more than 60 offences which the Applicant has been convicted of:
(i)2015, three sentencing episodes for 20 offences (nine of which came with sentences of imprisonment);
(ii)2016, one sentencing episode for six offences (two of which came with a sentence of imprisonment);
(iii)2017, one sentencing episode for one offence (which came with a sentence of imprisonment);
(iv)2018, four sentencing episodes for 10 offences (five of which came with sentences of imprisonment); and
(v)2020, one sentencing episode for six offences (four of which came with sentences of imprisonment).
It is evident that the Applicant’s criminal offending history became objectively more serious and frequent from 2015 onward. The Tribunal agrees with the Respondent’s contention that, “… from November 2015, the Applicant’s offending appeared to escalate, and he began to commit a number of successive and serious driving offences; and from June 2018, the severity of the Applicant’s offending escalated and he was increasingly sentenced to longer periods of imprisonment…”[66].
[66] Exhibit R1, page 12, paragraph 32.
In earlier reasons, the Tribunal referred to the sentencing remarks of Her Honour Judge Tupman in the Queanbeyan District Court on 26 July 2018, describing the Applicant’s offending with respect to his convictions regarding the police pursuit involving the Applicant as, “objectively very serious” [67].
[67] Exhibit G1, G2, pages 170 to 173.
Following this offending of the Applicant, and the previous Tribunal decision to revoke the cancellation of the Applicant’s visa in November 2019, the Applicant then went on to very seriously offend again in January 2020, with further convictions recorded with respect to property and traffic offending[68].
[68] Exhibit G1, G2, page 73.
The Tribunal is of the view that the Applicant’s criminal offending demonstrates a trend of increasing frequency and seriousness, which enlivens the application of sub-paragraph (d) of paragraph 8.1.1(1) of the Direction, in favour of not revoking the mandatory cancellation of the Applicant’s Visa.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction requires a decision maker to give consideration to the cumulative effect of repeated offending of the non-citizen.
The Applicant has an eight year criminal history, during the course of which he has benefited from the imposition of fines, good behaviour bonds, and probationary sentences. The Applicant had been sentenced on five occasions prior to receiving their first custodial sentence, providing the Applicant with opportunities to moderate their conduct and get on top of the issues predisposing him to offend. The Applicant went on to seriously offend only two months after this Tribunal had reinstated their Visa in November 2019.
The Applicant’s frequent and increasingly serious criminal conduct has had a cumulative effect, with significant resources required to bring the Applicant to account for their actions which included significant police resourcing required in order to protect the community from the potential harm resulting from their criminal conduct.
The cumulative effect of the Applicant’s criminal conduct has also had an impact on the victims of the Applicant’s offending, particularly with respect to the Applicant’s property related offending. Examples of this include the financial harm suffered by victims of the Applicant’s offending where the Applicant was involved in significantly damaging their car (January 2020)[69]; and stealing property from individuals and using their bank cards to purchase items (such as that which occurred in December 2014, outlined in the earlier reasons of this decision)[70].
[69] Exhibit R2, SM2, page 122.
[70] Exhibit R2, SM4, pages 342 to 343.
A further cumulative effect of the Applicant’s offending relates to their steadfast refusal to respect lawful authority, particularly in relation to laws which apply to the operation and use of motor vehicles on Australian roads; and the resources required to hold the Applicant to account for their conduct. The Tribunal has summarised the Applicant’s traffic related convictions (across the ACT and New South Wales) which include[71]:
[71] Exhibit G1, G2, pages 72 to 85.
(i)Four counts of driving whilst disqualified;
(ii)Six counts of driving whilst licence suspended by law;
(iii)Four counts of use of an uninsured vehicle / use of unregistered/suspended vehicle;
(iv)Three counts of aggravated/furious/reckless dangerous driving;
(v)Three counts of driving with a prohibited drug in oral fluid/blood/drive under influence of drugs;
(vi)Two counts of failing to stop motor vehicle for police;
(vii)In addition to one count of the following offences:
(a)police pursuit, not stop, drive recklessly, 1st off;
(b)be carried in conveyance taken w/o consent of owner;
(c)drive conveyance taken w/o consent of owner;
(d)class A motor vehicle exceed speed 45 km/hr;
(e)negligent driving, no death or grievous bodily harm;
(f)unlawfully possess number plates;
(g)driver – seatbelt not adj. and fastened properly; and
(h)number plate/ rego no properly issued/issued for another vehicle.
The Tribunal is of the view that the cumulative effect of the Applicant’s repeated offending, clearly enlivens the application of sub-paragraph (e) of paragraph 8.1.1(1) of the Direction in favour of a finding that the Applicant’s offending is of a very serious nature.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction requires a decision maker to consider whether the non-citizen has re-offended since having been 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 (observing that the absence of such a warning is not considered to be in the non-citizen’s favour).
As previously outlined in the reasons of this decision, the present application is the second application the Applicant has lodged with the Tribunal regarding a mandatory cancellation of their Visa. The Tribunal observes the Applicant’s Visa was restored by virtue of the previous Tribunal decision of November 2019.
It is evident in the reasons of the presiding Senior Member in the first set of proceedings, that the Applicant was fully aware of the consequences that further criminal conduct would have on the status of their Visa. The Applicant submitted a supplementary statement in the first set of proceedings dated 17 October 2019, stating[72]:
“… I understand the seriousness of my situation and the fact that I face the prospect of being removed from Australia; this is a very scary thought. Although I have lived in Canada before, this was in very different circumstances. I am a much older man now. I have lived in Australia for about ten years. I have become familiar with my life in Canberra. I do not wish to be far away from my mother. All of these matters make me very concerned about my future if I am removed from Australia…”
[72] Exhibit G1, G1, page 25.
In fact the Senior Member in the first set of proceedings before the Tribunal made the following finding in the reasons of his decision in November 2019[73]:
“…
46. As to the second limb of this consideration, it is almost irresistible to conclude that, having regard to the Applicant’s offending history, he will likely offend again.
47. However, having listened to the evidence given by both the Applicant and his mother, and having had the advantage of assessing the credibility of those two witnesses, the Tribunal is thoroughly satisfied the Applicant now appreciates the consequences of future offending. Furthermore, the Tribunal is satisfied the mother of the Applicant is both in a position to assist the Applicant and assist him to refrain from the commission of any future criminal offending. …”
[73] Exhibit G1, G2, pages 143 and 144.
The Tribunal agrees with the Respondent’s contention that, “The Respondent submits that the Tribunal in these current proceedings should have no doubt that the cancellation of the Applicant's visa, and the previous Tribunal decision put the Applicant on notice about the consequences of any future offending on his visa”[74].
[74] Exhibit R1, page 14, paragraph 37.
The Tribunal is of the view that in circumstances where the Applicant has been given a second chance to remain in Australia (in November 2019), and then went on to seriously offend in a very short space of time (in January 2020) after having been given an opportunity to remain in Australia; this indeed aggravates the seriousness with which the Tribunal views the Applicant’s offending conduct.
The Tribunal is of the view that sub-paragraph (g) of paragraph 8.1.1(1) of the Direction is enlivened and views the nature and seriousness of the Applicant’s criminal conduct very seriously.
Having regard to all of the evidence and submissions made to the Tribunal, which are outlined in the abovementioned relevant sub-paragraphs (b)(ii), (c), (d), (e) and (g) of paragraph 8.1.1(1) of the Direction, the Tribunal is of the wholistic view that the nature and seriousness of the Applicant’s conduct can only be characterised as very serious.
91.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Relevant to the present application, sub-paragraph 8.1.2(2) of the Direction requires a decision maker to consider the risk to the Australian community with regards to the following factors on a cumulative basis:
(1)The nature of the harm to individuals or the Australian community should the non‑citizen engage in further criminal or other serious conduct; and
(2)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 non-citizen 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).
The nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct
Highlighting the potential for harm posed by the Applicant if his criminal offending were to be repeated in the future, are the sentencing remarks handed down on multiple occasions describing the dangerous nature of the Applicant’s criminal conduct, particularly when he is operating a motor vehicle.
The Tribunal refers to the sentencing remarks of His Honour in the Magistrates Court of the ACT on 1 June 2018, who described the harm which could have resulted from the Applicant’s conduct involving a police pursuit which reached speeds of up to 150km per hour, and reached speeds of more than double what was stipulated in a school zone that was in force at the time[75]:
“… Anybody who is a road user, who gets behind the wheel of a car, and particularly on regional roads around Queanbeyan and Cooma, will know the sheer terror and concern, anxiety, that is felt by other road users who don't comply with the road rules. It becomes heightened when you see vehicles travelling to the wrong side of the road and when they are driving erratically.
In pursuit situations it becomes even worse because in many cases the driving is not only erratic, it is positively dangerous.
…
Extraordinarily during the school time where the speed limit of 40 kilometres per hour is required for the express purpose – the express purpose – of allowing children to safely attend their schools and for families to safely drop off and collect their children and to allow bus transport to safely drop off children, 40 kilometres per hour. Mr Mukiza travels through that zone at a speed somewhere between 90 and 100 kilometres per hour. You don't need to be Einstein to work out that the potential for the death of one or more children in a zone such as that during school time is extraordinarily high.
…
… Mr Mukiza himself, placed himself at risk along with all of the other road users and pedestrians along the extraordinary route that he took.
…
The fact that there was not a serious injury or worse is really an extraordinary outcome. Of course, I should be careful not to fall into a De Simone error in trying to construct potential outcomes, but the legislation itself recognises that great danger and it is played out in spades in the facts.”
[75] Exhibit G1, G2, pages 174 to 182.
The Applicant appealed the severity of the sentence handed down by His Honour in the Magistrates Court of the ACT on 1 June 2018. Her Honour Judge Tupman in the District Court of Queanbeyan on 26 July 2018, upheld the sentence for the police pursuit, although varied the other terms of imprisonment related to this offending including differing periods of time for non-parole. The Tribunal refers to the following remarks of Her Honour highlighting the harm which could have been caused by the Applicant’s offending[76]:
“… The pursuit then took a considerable period of time, involving more than one police car. He reached speeds of up to 150 kph. This was in the morning. He drove through school zones at more than double the 40 kilometre speed limit. He crossed onto the wrong side of the road on many occasions. Oncoming vehicles had to stop. It is very fortunate indeed that there were no collisions and nobody was hurt…”
[76] Exhibit R2, SM2, pages 29 and 30.
Further highlighting the objective seriousness of the potential harm that could be caused by the Applicant from his repeated dangerous use of a motor vehicle are the sentencing remarks of His Honour, Magistrate Clisdell before the Queanbeyan Local Court on 9 March 2020[77]:
“He has pleaded guilty to negligent driving by crossing unbroken separation lines to overtake two vehicles. The potential for danger in such activity is high and the Monaro Highway is somewhat notorious for collisions occurring in similar circumstances.
His ability to control the vehicle, which was being driven at speed, was exacerbated when we get to sequence 4 when as a result of that driving he crosses to the incorrect side of the road, hits an embankment, skews back across the road, hits a guardrail, where he skids along it for 40 metres before heading back to the incorrect side of the road.
There were other people on the road, they were understandably terrified by what was taking place and to add insult to injury he attempted to flee after the vehicle came to rest.
Of course the vehicle was not his. It belonged to [name redacted], who now has not only lost his vehicle but also has the vehicle impacted by damage, presumably fairly substantial damage to both sides of the vehicle.
He was also a disqualified driver at the time, just adding to the situation. Not only should he have not been behind the wheel, but when he did get behind the wheel he behaved in a manner which defies any description of sanity.
…
In my view the negligent driving does call for a discrete penalty as opposed to a s 10A because the nature of that negligent driving was high in objective seriousness…”
[Tribunal redactions]
[77] Exhibit G1, G2, pages 86 to 91.
The Tribunal regards the traffic offending history of the Applicant very seriously. The Applicant’s offending in this context has involved very serious criminal convictions and sentences of imprisonment in relation to multiple offences regarding police pursuit – not stop – drive recklessly; drive recklessly/furiously or speed/manner dangerous; and fail to stop motor vehicle police; combined with their multiple convictions with respect to driving under the influence of prohibited drugs.
There is no doubt in the Tribunal’s mind that if the Applicant were to engage in further criminal conduct, the potential harm posed from this repeated offending is objectively serious. This is particularly so when the Applicant has a history of committing serious offences involving the use of a motor vehicle when he is in psychosis. In the Tribunal’s mind it seems that to date, it has been good fortune indeed that no one has been harmed because of the Applicant’s offending conduct.
Having regard to the relevant provisions within the Direction as they apply to Primary Consideration 4, the Tribunal is of the view that the Applicant’s criminal offending is very serious, and the Australian community would reasonably expect that he should not hold a visa.
That is, the Australian community would expect the non-revocation of the cancellation of the Applicant’s Visa. In this regard, the Tribunal notes that the principle in sub-paragraph 5.2(3) of the Direction is applicable. The principle stipulates that, “The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns…”.
The Tribunal has considered the primary consideration of the protection of the Australian community which includes the very serious nature of the offences committed by the Applicant and the unacceptable risk it poses to the Australian community if they were to be repeated.
In determining the weight attributable to Primary Consideration 4, the Tribunal refers to the following:
(i)The Applicant has failed to obey Australian laws whist residing in Australia and has amassed a large number of convictions for very serious offences during their criminal history.
(ii)It is the Tribunal’s assessment that any tolerance afforded by the Australian community to the Applicant has surely been exhausted when objectively considering (1) the Applicant’s very serious and repeated criminal offending; and (2) the Applicant’s continual lack of respect for lawful authority, and the personal rights of others.
(iii)The Tribunal’s view that (1) the factors causing the Applicant to offend have not been adequately addressed as at the time of this decision; and (2) the Applicant poses a significant risk of substantial harm (not precluding catastrophic harm) to the Australian community were he to reoffend.
Conclusion: Primary Consideration 4
The Tribunal is of the view that the above factors, read as a whole in the context of this decision weigh very heavily in favour of not revoking the cancellation of the Applicant’s Visa.
The Tribunal accordingly finds that Primary Consideration 4 is of a very heavy weight in favour of affirming the non-revocation decision under review.
Other Considerations
It is necessary for the Tribunal to look at the Other Considerations listed at paragraph 9 of the Direction. The Tribunal will now consider each of the four stipulated sub-paragraphs 9.1 to 9.4 of the Direction.
International non-refoulement obligations
Paragraph 9.1 of the Direction directs decision makers to consider international non‑refoulement obligations.
The Tribunal has had regard to the requirements of paragraph 9.1 of the Direction, that the Applicant’s receiving country would be Canada, as well as the Applicant’s submissions within their Personal Circumstances Form to the Respondent[107]. The Tribunal is satisfied that Australia’s non-refoulement obligations are not engaged in relation to the Applicant.
[107] Exhibit G1, G2, page 109.
Extent of impediments if removed
Paragraph 9.2 of the Direction directs decision makers to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) the non-citizen’s age and health;
(b) whether there are substantial language or cultural barriers; and
(c) any social, medical and/or economic support available to them in that country.
The Tribunal has had regard to the Applicant’s submissions with respect to their Schizophrenia, including their rehabilitation and counselling needs, as well as their age (of 28 years)[108]. Mr Visser, Clinical Psychologist, in an undated report providing a psychological assessment of the Applicant has stated the following with respect to the Applicant’s health and prospects should he be deported to Canada[109]:
“While he has not managed his mental health well during his time in Australia, placing him in an environment where he has no familial support and no awareness of support services will significantly increase his risk of harm. The most likely outcome is that he will quickly fall into drug use, cease his medication, and become acutely psychotic. If that occurs in Canada, the best-case scenario is that he is arrested relatively quickly for a minor or drug related crime and is incarcerated. In that case there would be some chance of being integrated into support services, although I am not familiar enough with Canada’s social support systems to guess the likelihood of that being effective. Homelessness, with all of the associated risks, for at least some period would be more likely. Should his mother not move to support him, I would estimate the chances of survival for a drug dependent person with no support in acute psychosis in Rwanda to be very low.
Should he be allowed to stay in Australia there are things that could reduce his risk of recidivism. Returning to his mother’s care would be of some benefit in reducing his risk, especially in helping him to remain on his current antipsychotic medication. At this stage, the best intervention would be transition to a long-term residential drug program. For example, the Karralika Therapeutic Community Adult Program in the ACT takes residents into a 12-month program where they go through an ongoing therapeutic intervention building supportive community networks. As it may take some time to get admitted to such a program, support through community programs, such as Directions ACT would be of benefit in the interim. I would also strongly support ongoing management through Mental Health ACT for access to psychiatric support with his medication.”
[108] Exhibit G1, G2, page 109.
[109] Exhibit A2, page 2.
The Tribunal makes the observation that should the Applicant be deported to Canada he would be entitled to access a comparable standard of health care to that in Australia, in addition to a comparable standard of support for rehabilitation services.
The Tribunal observes the Applicant stated they had two uncles (brothers of his father who has since passed away) who resided in Canada, within their Personal Circumstances Form to the Respondent[110]. Evidence from the Applicant and his mother before the Tribunal was that he does not have a close relationship with these relatives, with the Applicant’s mother stating that at least one of these uncles had moved back to Rwanda[111].
[110] Exhibit G1, G2, page, 211.
[111] Transcript 10 May 2021, page 56, lines 4 to 21.
An important point in the Tribunal’s mind is the fact that there will be initial challenges for the Applicant in establishing clinical relationships should he be deported to Canada with respect to managing his Schizophrenia. There is no doubt that this will require a level of discipline from the Applicant which he has so far failed to avail himself of to date. In the Tribunal’s mind, with respect to the application of paragraph 9.2 of the Direction, this is a difficult consideration which favours a decision to revoke the mandatory cancellation of the Applicant’s Visa.
Whilst the Applicant has resided in Canada previously, the Tribunal accepts that this was at a time when he was predominantly a minor and in his mother’s care. However, should the Applicant be deported to Canada he would suffer no language or cultural barriers given the similarities between Australia and Canada. Canada is a wealthy democratic democracy, enjoys a high standard of living, and is similar to Australia in many ways. Any hardships the Applicant may face (emotional, financial, or otherwise) associated with resettlement would be overcome in time once the Applicant has had an opportunity to establish himself.
In view of the reasons outlined by the Tribunal with respect to the extent of any impediments a non-citizen may face if removed from Australia to Canada, it is the Tribunal’s view that paragraph 9.2 of the Direction weighs moderately in favour of revocation. However, the Tribunal is of the view that the weight given to this factor does not outweigh the very heavy and determinative weight the Tribunal has found for both Primary Considerations 1 and 4.
Impact on victims
Paragraph 9.3 of the Direction requires decision makers to take into account the impact of the decision not to revoke the Applicant’s visa pursuant to s501CA of the Migration Act, 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.
In the absence of any evidence submitted to the Tribunal for consideration with respect to the impact of the Applicant’s offending on their victims, the Tribunal cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s visa and is neutral[112].
[112] Chung and Minister for Immigration and Border Protection (Migration) [2017] AATA 895, [at 88]; TBNM and Minister for Home Affairs (Migration) [2019] AATA 850, [at 81].
Links to the Australian community
Paragraph 9.4 of the Direction states that decision makers must have regard to sub‑paragraphs 9.4.1 and 9.4.2 of the Direction, which consider the strength, nature and duration of ties of the Applicant to Australia, and any impact on Australian business interests.
Strength, nature and duration of ties to Australia
Sub-paragraph 9.4.1(1) of the Direction requires decision makers to consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Sub-paragraph 9.4.1(2) of the Direction requires a decision maker to given consideration to the strength, nature and duration of any other ties that the non-citizen has to the Australian community, and in doing so a decision maker must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, nothing that:
(i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residence and/or people who have an indefinite right to remain in Australia.
The Applicant arrived in Australia at 17 years of age in 2009 with his mother, where he has since resided for his adulthood in the Australian community (aside from periods spent in criminal custody and immigration detention). The Tribunal observes the Applicant began offending shortly after his arrival in 2012, with criminal convictions recorded consistently in each year (aside from in 2019).
The Applicant’s family has consisted of his mother (who resides in Australia), his step-father (who similarly resides in Australia), in addition to his step-siblings, whom the Applicant has stated he is only close to some, the Tribunal refers to the following exchange[113]:
“Senior Member: It’s the tribunal here, Mr Mukiza. Can you explain the relationship that you have with your stepbrothers and sisters? You’ve mentioned earlier you’ve got three stepbrothers that are in Canberra and then two stepsisters that are in Tasmania?
Applicant: ---Yes. So with my stepsisters, like, I’ll be honest, we don’t really talk. I’ve met them on several occasions but we don’t really talk, they don’t have my number, I don’t have their number. You know, we’re not friends on Facebook but we’re just aware of each other. But with my stepbrothers it’s more of a closer bond because, you know, like I said I’m an only child and so when I relocated to Australia I never had a brother or sister before so it was something I always was a brother but, yes, so we’ve got a good relationship, you know. We just talk, we don’t really hang out when - you know, they’ve got different friend groups and I’m around different people so we just get together on, like, family occasions but we do talk.”
[113] Transcript 10 May 2021, page 44, lines 24 to 37.
The Tribunal has had regard to the submissions and evidence of the Applicant’s mother and step-father, and it is clear that he has a good relationship with them despite the difficulties which have arisen from his criminal offending and management of his Schizophrenia. The Tribunal has had regard to the Applicant’s mother’s submissions that she would be, “extremely distressed” and “utterly heartbroken and shattered” should her son be deported, with the Tribunal acknowledging her submissions that she has established herself in Australia[114]. The Tribunal accepts that should the Applicant be deported his family will suffer significant emotional hardship. The Tribunal observes the Applicant’s submissions that he presently doesn’t have any friends[115].
[114] Exhibit A5.
[115] Transcript 10 May 2021, page 19, lines 1 to 3.
The Tribunal observes the Applicant has had a brief employment history (with respect to his contribution to the community), with reference to the following exchange[116]:
“Respondent: What’s your employment history in Australia, Mr Mukiza?
Applicant: ---I’ve had a few jobs. I’ve been, like, where I live in Canberra, I’ve worked at McDonald’s, I’ve worked at Woollies, I’ve worked as - I remember I done a barista course and then became a barista, I worked at Dan Murphy’s and - yes, that’s about all the jobs that I think I can remember.
Respondent: When was your last job?
Applicant: ---My last job would have been probably the barista job, which would have been like four years or five years now.
Respondent: In around 2016 or 2017?
Applicant: ---Yes.”
[116] Transcript 10 May 2021, page 10, lines 33 to 43.
With respect to the application of paragraph 9.4.1(1) of the Direction the Tribunal accepts that the Applicant’s immediate family members in Australia would suffer emotional hardship should the Applicant be deported, such that it weighs moderately in favour of the Applicant remaining in Australia.
With respect to the application of paragraph 9.4.1(2)(a)(i) of the Direction, the Tribunal has limited the weight which may otherwise have been afforded to the Applicant in circumstances where their offending began relatively soon following their arrival in Australia.
The Tribunal is of the view that a limited measure of weight should be afforded to the Applicant in terms of applying paragraph 9.4.1(2)(a)(ii) of the Direction on the basis of the Applicant’s modest contribution to the Australian community through his employment.
In applying paragraph 9.4.1(2)(b) of the Direction, the Tribunal has had regard to the Applicant’s family and limited social links (in the Applicant’s own words) that would be impacted by the Applicant’s removal; the Tribunal is of the view that this attracts a moderate weight in favour of the Applicant.
Overall, in applying paragraph 9.4.1 of the Direction to the factual circumstances of the Applicant, the Tribunal is of the view that this Other Consideration weighs moderately in favour of revocation for the Applicant.
Whilst overall the Tribunal has applied a moderate measure of weight to this Other Consideration, it is by far outweighed by the combined and determinative weight the Tribunal has given to both Primary Consideration 1 and Primary Consideration 4, both of which weigh very heavily favour of non-revocation.
Impact on Australian business interests
Paragraph 9.4.2 of the Direction requires decision makers to consider the impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that 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.
The Tribunal has had regard to the directions outlined in paragraph 9.4.2 of the Direction and is satisfied that an impact on Australian business interests is not relevant to the factual circumstances of the Applicant. This other consideration is of no weight, and not determinative of any finding.
Other consideration – The Applicant’s mental health condition
Sub-paragraph 9(1) of the Direction states:
“9. Other considerations
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also take into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
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;
ii) impact on Australian business interests”
[Tribunal underline for emphasis]
Throughout the reasons of this decision the Tribunal has given consideration to the Applicant’s mental health condition which he suffers and the impact which this has had on his criminal conduct, ultimately leading to the position which he now faces regarding his possible deportation. The Tribunal has summarised its findings with respect to this consideration given how central this is to the Applicant’s life and given that this has been raised as a separate consideration by the Respondent.[117]
[117] Exhibit R1, pages 22 to 23, paragraphs 72 to 74.
As stated in earlier reasons, the Tribunal does accept that the Applicant will face initial challenges in establishing clinical relationships should he be deported in Canada to manage his Schizophrenia, and rehabilitation needs.
With regard to his substance dependence issues, evidence before the Tribunal indicates that the Applicant is able to manage his Schizophrenia with medication, however he is prone to relapse if he comes off his medication and takes prohibited drugs which he has admitted to on multiple occasions during the course of the hearing, and in the Applicant’s statement to the Tribunal, “My offending is directly linked to my mental health and my mental episodes”[118].
[118] Exhibit A1, page 2.
Mr Visser in his psychological assessment of the Applicant described his pattern of behaviour, “… for whatever reason he will be unable to fill a script. He will be contacted by friends, begin using methamphetamines and/or cannabis, then will commit crime while high. During incarceration he will either significant slow his use or cease, until he is released and the cycle will start again”[119].
[119] Exhibit A2, page 8.
The Tribunal in earlier reasons considered contentions made in the first set of proceedings, with respect to the principle of reduced culpability in circumstances where the Applicant’s criminal offending is linked to fluctuations in their mental health condition[120]. The Tribunal has previously outlined its view as to the contention that the Applicant is less culpable for his criminal conduct due to his Schizophrenia, and repeats earlier findings here:
(i)The Applicant’s Schizophrenia does not absolve the Applicant from their failure to (1) take adequate steps to address their mental health (with respect to consistently adhering to prescribed treatment(s) and medication(s); and (2) engage in rehabilitation to abstain from prohibited drug use which exacerbates their Schizophrenia.
(ii)None of the sentencing judges indicated that the Applicant was (1) unable to be held responsible for his criminal conduct; or (2) unfit to plead against the offences which he was ultimately convicted of.
[120] R v Hemsley [2004] NSWCCA 228, per Sperling J [33].
The Tribunal observes that multiple sentencing judges (in addition to the first set of proceedings in this Tribunal) have put the Applicant on notice that they need to adhere to treatment and abstain from drug use to end his cycle of criminal conduct, repeated here:
(i)His Honour Magistrate Clisdell on 9 March 2020 in the Local Court of Queanbeyan who stated, “…Mr Mukiza may have had a most unfortunate and terrifying childhood, and I accept that someone who went through what happened in Rwanda would be scarred for life. It does not however entitle people to commit offences where they scare the living daylights out of other people. It is a sad situation that perhaps he has untreated post-traumatic stress disorder. That is something he can deal with if he wishes to…”[121].
(ii)Senior Member Griffin QC in the first set of proceedings before this Tribunal made the following findings in the reasons of his decision in November 2019, “…As to the second limb of this consideration, it is almost irresistible to conclude that, having regard to the Applicant’s offending history, he will likely offend again. … However, having listened to the evidence given by both the Applicant and his mother, and having had the advantage of assessing the credibility of those two witnesses, the Tribunal is thoroughly satisfied the Applicant now appreciates the consequences of future offending. Furthermore, the Tribunal is satisfied the mother of the Applicant is both in a position to assist the Applicant and assist him to refrain from the commission of any future criminal offending…”[122].
(iii)Her Honour Judge Tupman on 26 July 2018 in the District Court of New South Wales who stated, “…He is a person with serious mental health issues. He needs a longer than normal period of supervision in the community to deal with that and also to deal with what at that stage was his serious drug addiction, which exacerbated his mental health issues. He is a Rwandan refugee who came to Australia with his mother via a circuitous route. That route and that history is well known to the Courts. His mother is available to him for accommodation and support, which increases his prospects of rehabilitation. Now that he has been in custody since 6 April 2018, the day of this pursuit and his arrest, he has stopped using illegal drugs and he has started to take his anti-psychotic medication again, which is Seroquel. He was not using the anti-psychotic medication at the time these offences occurred He is now in a situation in which he indicates, and which demonstrates, insight into his offending behaviour. He has shown remorse and contrition. His prospects of rehabilitation must be guarded, given his mental illness and previous drug addiction, but are entirely dependent on his no longer using illegal drugs and continuing to receive treatment for his mental illness.…”[123].
[121] Exhibit G1, G2, page 89.
[122] Exhibit G1, G2, pages 143 and 144.
[123] Exhibit G1, G2, page 171 and 172.
Despite the numerous warnings from sentencing episodes and opportunities the Applicant has had to reform himself, in addition to having had his visa restored to him following a previous decision to cancel it, the Applicant went on to very seriously offend.
The Tribunal has made findings with respect to the likelihood of the Applicant re-offending, and based on the extent of the Applicant’s rehabilitation efforts to date and the number of opportunities the Applicant hasn’t seized in order to reform himself, the Tribunal is of the view that: there is a significant likelihood of the Applicant engaging in further criminal or other serious conduct due to the incomplete nature of his rehabilitation with respect to the underlying factors causing him to offend: namely (1) his past inability to adhere to prescribed medication and treatment for his mental health condition; and (2) his substance dependence issues/polysubstance abuse issues.
In summary, the Tribunal is of the view that in circumstances where:
(i)the past criminal conduct of the Applicant has involved the use of a motor vehicle when he is in psychosis;
(ii)the Tribunal’s assessment that there is a significant likelihood of the Applicant re‑offending due to the incomplete nature of his rehabilitation;
the risk posed by the Applicant to the Australian community is unacceptable.
Taking all these reasons into account when assessing the Applicant’s mental health condition as a separate and relevant consideration within the Direction, the Tribunal is of the view that this consideration is of neutral weight.
Summary: Other Considerations
The application of the Other Considerations in the matter before the Tribunal can be summarised as follows:
(a)International non-refoulement obligations, are not engaged in relation to the Applicant.
(b)Extent of impediments if removed, a moderate measure of weight is attributable in favour of revocation of the mandatory Visa Cancellation Decision.
(c)Impact on victims is of neutral weight.
(d)Links to the Australian community, including:
(i)Strength, nature and duration of ties to Australia, a moderate measure of weight is attributable in favour of revocation of the mandatory Visa Cancellation Decision; and
(ii)Impact on Australian business interests is of no weight as this consideration is not relevant to the factual circumstances of the Applicant;
(e)Other consideration, the Applicant’s mental health condition, is of neutral weight.
The Tribunal is of the view that, to the extent that any of these Other Considerations, as outlined in paragraphs 9 to 9.4.2 of the Direction, weigh in favour of revocation of the mandator Visa Cancellation Decision, they are by far outweighed by the determinative and combined weight of both Primary Consideration 1 and Primary Consideration 4, which both weigh very heavily in favour of non-revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
As previously outlined in these reasons, pursuant to s501CA(4)(b) of the Migration Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s Visa:
(i)either the Applicant must be found to pass the character test; or
(ii)the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
As the Tribunal has already outlined in these reasons, the Applicant does not pass the character test.
The Tribunal has had reference to the Direction and to all the evidence before it and finds that there is not another reason for the Tribunal to revoke the cancellation of the Applicant’s Visa.
In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Migration Act to revoke the mandatory Visa Cancellation Decision, the Tribunal has had regard to the Primary Considerations referred to in the Direction, and makes the following findings:
(i)Primary Consideration 1 weighs very heavily in favour of non-revocation.
(ii)Primary Consideration 2 is not relevant to the factual circumstances of the Applicant and is not determinative of any finding.
(iii)Primary Consideration 3 is not relevant to the factual circumstances of the Applicant and is not determinative of any finding.
(iv)Primary Consideration 4 weighs very heavily in favour of non-revocation.
The Tribunal has outlined the weight attributable to the Other Considerations. The Tribunal is of the view that any weight the Tribunal has found in favour of revocation from the Other Considerations (even when combined with each other), does not in any way outweigh the very heavy and determinative weight the Tribunal has attributed to Primary Consideration 1 and Primary Consideration 4 of the Direction.
The Tribunal makes this finding with reference to sub-paragraph 7(2) of the Direction which provides that, “Primary considerations should generally be given greater weight than the other considerations”. In the Tribunal’s mind, both Primary Consideration 1 and Primary Consideration 4 have been determinative considerations in this matter.
It is the Tribunal’s opinion that a holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s Visa.
Consequently, the Tribunal cannot exercise the discretion to revoke the cancellation of the Applicant’s Visa.
DECISION
Pursuant to s43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 25 February 2021 not to revoke the mandatory cancellation of the Applicant’s Class BS subclass 801 (Spouse) visa.
I certify that the preceding 201 (two hundred and one) paragraphs are a true copy of the reasons for the decision herein of Senior Member B.Pola
.................................[SGD].......................................
Associate
Dated: 25 May 2021
Date of hearing:
10 May 2021
Applicant:
Mr Thierry Mukiza
Self-represented
Solicitor for the Respondent:
Mr Alex Booth
Clayton Utz
“ANNEXURE 1 – EXHIBIT REGISTER”
EXHIBIT
DESCRIPTION OF EVIDENCE
DATE OF DOCUMENT
DATE RECEIVED
G1
G Documents (pages 1 to 1543)
-
22 March 2021
R1
Respondent’s Statement of Facts, Issues and Contentions (pages 1 to 24)
27 April 2021
28 April 2021
R2
Material Produced under Summons (pages 1 to 460)
-
28 April 2021
A1
Applicant’s Submissions (two pages)
7 April 2021
8 April 2021
A2
Psychologist Report (pages 1 to 16)
undated
6 April 2021
& 19 April 2021
A3
Character Reference from Peter Okwechime (step-father) (pages 1 to 2)
18 March 2021
6 April 2021
& 19 April 2021
A4
Letter of Support from Applicant’s Mother (three pages)
20 March 2021
6 April 2021
& 19 April 2021
A5
Supplementary Statement of Applicant’s Mother (pages 1 to 3)
undated
6 April 2021
& 19 April 2021
25.
1
7
0