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

[2024] AATA 150

Muller and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] AATA 150 (23 January 2024)

Division:GENERAL DIVISION

File Number:2023/8192          

Re:Aloisio Epifania Michael Muller  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member S Burford

Date of decision:  23 January 2024

Date of written reasons:         6 February 2024

Place:Perth

The decision of the delegate of the Respondent dated 31 October 2023 not to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Special) visa is set aside and substituted with a decision that the cancellation of the Applicant's visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

.................[Sgd].......................................................

Senior Member S Burford

CATCHWORDS

MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction No 99 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct  – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – extent of impediments if removed –– extent of impediments if returned to New Zealand – Non-Revocation Decision is set aside and substituted with a decision that the cancelation of the visa is revoked

LEGISLATION

Migration Act 1958 (Cth) ss 15 ,189, 196, 197C, 198, 499(1), 499 (2A), 500(1)(b), 500(6B), 500(6H), 500(6J), 501, 501CA, 501(3A), 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501(6), 501(6)(a), 501(7), 501(7)(c), 501F, 501E, 503

Crimes Act 1900 (NSW) s 35
Criminal Procedure Act 1986 (NSW) ss 3(1), 5
Children’s (Criminal Proceedings) Act 1987 ss 3(1), 14(1), 19, 18(1), 18(1A)
Crimes Act 1914 (Cth) s 85ZR(2)
Youth Justice Act 1992 (Qld) s 184(2)

CASES

AJL20 v Commonwealth of Australia [2020] FCA 1305

BHL19 v Commonwealth of Australia (No 2) [2022] FCA

BP v R [2010] NSWCCA 159

Buntin v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1055

CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138

Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456

FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990

HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136

Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCATrans 161; [2022] FCA 454

Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Uelese v Minister for Immigration and Border Protection [2016] FCA 348

Webb v Minister for Home Affairs [2020] FCA 831

SECONDARY MATERIALS

Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023) – paras 2, 3, 4(1), 5.1, 5.1(3), 5.1(4), 5.2, 5.2(5), 6, 7, 7(2), 8(1), 8.1(1), 8.1.1(1), 8.1.1(1)(a)(i), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1(2), 8.1.2(1), 8.1(2)(a), 8.1(2)(b), 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.3, 8.4, 8.4(2)(a)–(f), 8.4(4), 8.4(4)(b), 8.4(4)(c), 8.4(4)(d), 8.4(4)(f), 8.4(4)(g), 8.4(4)(h), 8.5(1), 8.5(2), 8.5(2)(a)–(f), 8.5(1), 8.5(3), 8.5(4), 9, 9.1, 9.1(3), 9.1.2(2), 9.1.2(3), 9.2, 9.2(1)(a)-(c), 9.3, 9.4

REASONS FOR DECISION

Senior Member S Burford

6 February 2023

The decision in this matter was made and provided to the parties on 23 January 2024 with a note that written reasons would be provided within a reasonable time. These are those written reasons.[1]

THE APPLICATION

[1] See Khalil and Respondent for Home Affairs [2019] FCAFC 151 at [41].

1. The Applicant seeks review of a decision of a delegate of the Respondent  dated 31 October 2023 not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (the visa) under s 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act).

2. The application is made pursuant to s 500(1)(b) of the Migration Act which allows applications to be made to the Administrative Appeals Tribunal for review of decisions of a delegate of the Respondent made under s 501 of the Migration Act.

   BACKGROUND

3. The Applicant is a 21-year-old citizen of New Zealand. He first arrived in Australia on 19 March 2015 at the age of 12 years old.[2]

   [2] R1, G24.

4. On 1 April 2021 the Applicant was convicted of Reckless grievous bodily harm - in company and sentenced to a term of imprisonment of 3 years and 6 months (commencing 21 December 2019).[3] The offence occurred on 21 December 2019.[4] The Applicant was convicted as an adult but ordered to serve his sentence as a juvenile offender.[5]

   [3] R1, G5, page 36.

   [4] R1, G6, page 38.

   [5] R1, G6, pages 47, 50.

5. Consequently, on 30 July 2021 the Respondent cancelled the Applicant’s visa under s 501(3A) of the Migration Act on the basis that the Applicant had a substantial criminal record within the meaning of s 501(6)(a) of the Migration Act and was serving a sentence for imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a state or territory (the Cancellation Decision).

6. The Applicant requested revocation of the Cancellation Decision on 11 August 2023.[6]

   [6] R1, G10.

7. On 31 October 2023, a delegate of the Respondent decided, under s 501CA(4) of the Migration Act, not to revoke the Cancellation Decision (the Non-Revocation Decision).[7] This is the reviewable decision before the Tribunal.

   [7] R1, G3.

8. The Applicant was notified of the Non-Revocation Decision on 31 October 2023 by email to his then authorised representative.[8] The Respondent agreed he was notified on this date.

   [8] R1, G4.

9. The Applicant lodged his application for review of the Non-Revocation Decision with the Tribunal on 4 November 2023.[9] The Tribunal is satisfied that the application was lodged within time, pursuant to s 500(6B) of the Migration Act.

   [9] R1, G1; The Tribunal notes Tribunal records indicate a second application form was lodged by the Applicant’s then representative on 6 November 2023, however this was treated as a duplicate application and not recorded on the Tribunal’s system.

   ISSUES

10. The issues before the Tribunal are:

    (a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and

    (b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).

11. For the reasons below, the Tribunal has decided that the correct and preferable decision is that the Non-Revocation Decision be set aside and substituted that with a decision that the cancellation of the Applicant’s visa be revoked.

    THE HEARING AND THE EVIDENCE

12. The hearing was held on 17 January 2024 at the Tribunal’s Perth Registry. The Applicant attended the hearing in person. He was initially represented in relation to the application on a pro bono basis by Mr Jason Donnelly of Counsel. Mr Donnelly attended the initial directions hearing for the matter and indicated to the Tribunal he was unable to represent the Applicant in the substantive hearing but was attempting to organise representation for him through Legal Aid. Mr Donnelly withdrew on 27 November 2023. The Applicant was not represented in relation to his application after that time and was self-represented at the hearing. The Respondent was represented by Mr Hall of Counsel, instructed by Ms Georgina Ellis of Sparke Helmore Lawyers.

13. At the hearing, the Applicant made submissions, gave evidence and was cross-examined.  He did not call any other witnesses in support of his application.

14. The following documents were marked as exhibits:

    ·Respondent’s G-Documents, labelled G1 to G26, consisting of pages 1-199 (Exhibit R1); and

    ·Respondent’s Tender Bundle, labelled TB1 to TB3, consisting of pages 1-282 (Exhibit R2).

15. The Respondent filed a Statement of Facts, Issues and Contentions (RSFIC) dated 21 December 2023 prior to the hearing.

16. The Tribunal notes the Applicant did not file a Statement of Facts, Issues and Contentions or additional evidence prior to the hearing. A directions hearing was held on 13 November 2023 to program the matter for hearing during which the Tribunal discussed with the parties the provision of evidence. The Applicant was represented by Mr Donnelly at the directions hearing, however as Mr Donnelly indicated he would not be acting in the substantive matter. The Tribunal directed that the Respondent file their RSFIC first to assist the Applicant to understand the points at issue and to have the opportunity to prepare submissions and evidence in response to issues raised by the Respondent. The same approach was adopted at the hearing with the agreement of the parties.

17. The Tribunal was mindful of the Applicant’s lack of representation and relative youth in the conduct of the proceedings. The Tribunal provided an opportunity at the hearing for the Applicant to respond to matters put by the Respondent in written submissions and in oral closing submissions and to provide answers to questions asked by the Tribunal which were directed at relevant considerations arising in the application. While it was clear the Applicant found the hearing process challenging, the Tribunal considered he was provided with a fair opportunity to give evidence and present arguments in support of the application and to respond to issues raised by the Respondent and concerns or issues raised directly by the Tribunal.

    LEGISLATIVE FRAMEWORK

    Migration Act

18. The Migration Act provides special powers for the Respondent to refuse or cancel visas on character grounds. In some circumstances, where a visa is cancelled on character grounds, the Respondent can revoke that cancellation decision.

19. These powers generally involve consideration of whether a person passes the character test, and if they do not, consideration of whether there is another reason that the decision to cancel or refuse a visa should be revoked.

20. The character test is set out in s 501(6) of the Migration Act and provides that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly provides that:

    (6)For the purposes of this section, a person does not pass the character test if:

    (a)the person has a substantial criminal record (as defined by
    subsection (7)); …

    (Original emphasis.)

21. A ‘substantial criminal record’ is relevantly defined by s 501(7)(c) of the Migration Act as follows:

    (7)For the purposes of the character test, a person has a substantial criminal record if: …

    (c)the person has been sentenced to a term of imprisonment of
    12 months or more; …

    (Original emphasis.)

22. Under s 501(3A) of the Migration Act, the Respondent must cancel the visa of certain incarcerated persons, if the Respondent is satisfied that the person does not pass the character test because the person has a substantial criminal record as a result of being sentenced to a term of imprisonment of more than 12 months.

23. Additionally, under s 501(3A) of the Migration Act, the person must be serving a ‘sentence of imprisonment’, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

24. If a visa is cancelled under s 501(3A), the Respondent must give the person a written notice inviting them to make representations about revocation of the original decision.[10] If the person makes representations in accordance with the invitation, then under s 501CA(4), the Respondent may revoke the original decision if satisfied that the person passes the character test or that there is another reason why the original decision should be revoked. Making a revocation decision under s 501CA requires the decision-maker to first decide whether the person passes the character test under s 501CA(4)(b)(i) and, only if satisfied that the person does not, to then decide under s 501CA(4)(b)(ii) if there is ‘another reason’ why the original decision should be revoked.[11]  

    [10] Migration Act s 501CA(3).

    [11] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].

    Direction No 99

25. The Tribunal is required to form a state of satisfaction as to whether there is ‘another reason’ why the original decision should be revoked, reasonably and on a correct understanding of the law.[12] By reason of s 499 (2A) of the Migration Act, in doing so the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Respondent pursuant to s 499(1) of the Migration Act. On 23 January 2023, the Respondent made Direction No 99 under s 499 of the Migration Act, which commenced operation on 3 March 2023. This is the direction applying at the time of the Tribunal’s decision.

    [12] FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [63] (Thawley J); Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 (Halley J) at [119].

26. An objective of Direction No 99 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[13] In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction No 99 where relevant to the decision.[14]

    [13] Direction No 99 para 5.1(4).

    [14] Direction No 99 para 6.

27. Paragraph 5.1 of Direction No 99 sets out ‘[o]bjectives’ including para 5.1(3) which provides that:  

    Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full­time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.

28. Paragraph 5.2 of Direction No 99 sets out ‘[p]rinciples’ which must be taken into account by decision-makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’ and are expressed as follows:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on
    non-citizens in the expectation that they are, and have been, law-abiding,
    will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they 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 measureable [sic] risk of causing physical harm to the Australian Community.

    (4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

    (5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

    (6)Decision makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) [15](Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.

    [15] As there is no para 8.55(2) the Tribunal infers this is a reference to 8.5(2).

29. Informed by the principles set out in para 5.2 of Direction No 99, the Tribunal must take into account the primary considerations listed in para 8, and the other considerations listed in para 9, where relevant having regard to the specific circumstances of the case, in deciding ‘whether to revoke the mandatory cancellation of a non-citizen’s visa’.[16]

    [16] Direction No 99 para 6; see also the definition of ‘decision-maker’ in para 4(1) of Direction No 99, which includes the Tribunal.

30. In making a decision under s 501CA(4), the primary considerations to be taken into account by the Tribunal are:[17]

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

    (b)whether the conduct engaged in constituted family violence;

    (c)the strength, nature and duration of ties to Australia;

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

    (e)expectations of the Australian community.

    [17] Direction No 99 para 8.

31. The ‘other considerations’ that the Tribunal must take into account, insofar as they are relevant to the matter, include (but are not limited to):[18]

    (a)       legal consequences of the decision;

    (b)       extent of impediments if removed;

    (c)       impact on victims; and

    (d)       impact on Australian business interests.

    [18] Direction No 99 para 9.

32. Further guidance as to how a decision-maker is to apply the considerations in
    Direction No 99 can be found in para 7, which provides that:

    (1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

    (2)Primary considerations should generally be given greater weight than the other considerations.

    (3)One or more primary considerations may outweigh other primary considerations.

    DOES THE APPLICANT PASS THE CHARACTER TEST?

1. As noted above, the character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’, as defined by s 501(7). Relevant to the Applicant’s case,
   

   [19] Migration Act s 501(7)(c).

   a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.[19]

2. The Tribunal finds that the Applicant was convicted on 1 April 2021 of Reckless grievous bodily harm – in company or which he was sentenced to 3 years and 6 months imprisonment.[20]

   [20] R1, G5-G8.

3. As the Applicant has been sentenced to a term of imprisonment of 12 months or more, he has a substantial criminal record under s 501(7)(c) of the Migration Act.

4. Accordingly, the Tribunal is not satisfied that the Applicant passes the character test.[21]

   [21] See Migration Act s 501CA(4)(b)(i).

   IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?

5. As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether  there is another reason why the Cancellation Decision should be revoked, having regard to the primary and other considerations contained within Direction No 99.  The statutory power to revoke will only be enlivened if there is ‘another reason’ why the Cancellation Decision should be revoked.[22]

   [22] Migration Act s 501CA(4)(b)(ii).

6. The Applicant did not make written submissions to the Tribunal.  In his request for revocation he stated as his reason for revocation:[23]

   I am wanting to have my visa cancellation revoked.

   I have been in custody since 2019 and have worked really hard to address a lot of my mistakes.  I know that I have made big changes not on the outside but on the inside too.  I truly regret my actions and know that I will not re-offend because of the lessons I have learnt in custody and because I have re-connected with my family and will not risk losing them again,  When I entered custody I was a 16 year old boy and now I am leaving as an 18 year old man who wants to give back to his family and community by mentoring troubled teens in my area and being a good role model for my younger cousins.

   [23] R1, G10, page 61.

7. In his application to the Tribunal on 4 November 2023, he stated in answer to the question ‘why do you think the [Non-revocation Decision] is wrong?’:[24]

   The incumbent Respondent for Immigration the Hon Mr Andrew Giles has outlined a softer stance against Kiwis especially those who spent their formative years in Australia.  I do not have a good relationship with my father back in New Zealand and all my support network is in Australia.

   [24] R1, G2, page 8.

8. His then representative indicated that the delegate gave insufficient weight to:[25]

   ·The fact that the Applicant was a child when the criminal offending occurred;

   ·The Applicant’s ties to Australia; and

   ·The best interests of minor children in Australia affected by the decision.

   [25] R1, G3, page 14.

9. In his personal particulars form and in response to questions from the Tribunal he submitted, in summary that:

   ·He accepts that his offending was serious, is remorseful and regrets his actions;[26]

   ·He has made undertaken significant rehabilitation in juvenile detention, including drug and alcohol programs and anger management. He has also undertaken school and vocational training to improve his employment prospects in the community;[27]

   ·He is no longer taking drugs and has been drug-free since he entered prison.[28] He has spent too long in prison, and he wants to start his life again. He will not reoffend;[29]

   ·If he stays in Australia he can live with his aunt and uncle and has organisations which will support him to find employment and to continue his social rehabilitation, including the Pasifika program;[30]

   ·He wants to be a good role model for his young cousins who he sees as his siblings;[31]

   ·If he is removed his family will be sad. He moved around a lot as a child with different family members. His parents brought him to Australia because this mother wanted him to have a better life. His mother is buried here, and he wants to remain to be closer to her. He has opportunities here and wants to continue to be a Mentor with Pasifika;[32] and

   ·He does not want to return to New Zealand as he has spent most of his life in Australia and he is closer to his family here.  He has nothing to go back to in New Zealand and he has no positive role models or support network there including financial and employment support.[33]

   [26] R1, G12, page 80.

   [27] R1, G12, page 81.

   [28] Transcript, page 25.

   [29] Transcript, page 45.

   [30] R1, G12, pages 78-79. The Tribunal notes that there are different spellings of Pasifika in the material. The Tribunal has adopted the spelling used on the official ‘Pasifika Cultural Program’ material. The Tribunal accepts the references in the material.

   [31] R1, G11, pages 71, 75; R1, G12, page 78.

   [32] R1, G11, page 72; R1, G12, pages 78-79.

   [33] R1, G11, page 76; R1, G12.

10. The Respondent submitted, in summary, that:

    ·The Applicant’s offending should be viewed as very serious having regard to the violent nature of his offence, the serious injuries caused to the victim and the significant term of imprisonment to which the Applicant was sentenced;[34]

    ·If the Applicant were to reoffend, the harm which would be caused would be very serious and could include physical, financial and psychological harm to members of the community.[35] The Applicant presents an unacceptable risk of reoffending or engaging in other serious conduct. While he has undertaken rehabilitation programs, his rehabilitation is untested in the community. He has demonstrated a propensity to carry knives in the past and was not deterred by previous restrictions placed on him in the justice system, offending while he was the subject to conditional liberty. His anti-social network was a factor in his offending and his ability to maintain prosocial peers is untested. The support of his prosocial network prior to offending, including his aunt and uncle, was not sufficient to deter his offending;[36]

    ·The Applicant has declared he will not undertake further alcohol or drug rehabilitation or counselling in the community and this presents an ongoing risk. His ability to abstain from drugs and alcohol is untested in the community. Further, he demonstrated limited remorse;[37]

    ·The Applicant has lived in Australia since a young age and has ties to Australia including through a number of extended family members. However, these ties should be given less weight where the Applicant’s immediate family members and a number of extended family are in New Zealand and has not made any substantial contribution to the community while in Australia;[38]

    ·The Applicant’s young cousins are cared for by their parents and the Applicant was not living with his cousins prior to imprisonment. His involvement in their lives has been impacted by a lengthy period in prison and immigration detention.  It is unclear if the Applicant would play a positive role in the children’s lives given his past violent offending and admitted drug use and there is no independent evidence of the effect separation would have on the children;[39]

    ·The Applicant has been convicted of a serious violent crime and the community expectation would be that he would not hold a visa notwithstanding the length of time he has spent in Australia;[40]

    ·The Applicant spent at least half his life in New Zealand and a number of his immediate family members remain there. There is some information he may have undiagnosed Attention Deficit Hyperactivity Disorder (ADHD) or Autism Spectrum Disorder (ASD) and he has a history of drug and alcohol misuse, however, there was no evidence he would not have access to the same services, including social, medical, mental health and economic support, available to other citizens of New Zealand. The Tribunal can take account of the fact that New Zealand’s social, medical and economic support systems are similar to those available in Australia;[41] and

    ·The primary considerations of the protection of the Australian community, and the expectations of the Australian community weigh heavily against revocation and outweigh considerations which may weigh in his favour.[42]

    [34] RSFIC, pages 8-9.

    [35] RSFIC, page 10.

    [36] RSFIC, page 10.

    [37] RSFIC, page 11; Transcript, pages 39 and 41.

    [38] RSFIC, page 12; Transcript, page 41.

    [39] RSFIC, page 13; Transcript, page 42.

    [40] RSFIC, page 14; Transcript, page 42.

    [41] Citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348 at [68]-[69]; RSFIC page 15; Transcript, page 42-43.

    [42] RSFIC, page 16.

    Protection of the Australian Community

11. The first primary consideration, paragraph 8.1(1), focuses on the protection of the Australian community. Direction No 99 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. In this respect, the Tribunal is directed to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[43]

    [43] See also Direction No 99 para 8(1).

12. Paragraph 8.1(2) of Direction No 99 then provides that decision-makers should also give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

13. The Applicant submitted that if the Cancellation Decision was revoked, he would not reoffend. He submitted that he has been working hard in prison to ‘change his mistakes’.  He regrets his actions and knows that he will not re-offend because of the lessons he has learnt in custody and because he has re-connected with his family and does not want to risk losing them again. He said he has matured and wants to give back to his family and community by mentoring troubled teens in his area and being a good role model for his younger cousins.[44]  He has spent too long in prison as a young person and he wants to start his life again.[45] He has undertaken significant rehabilitation in juvenile detention, including drug and alcohol and anger management programs, counselling and school and vocational training to improve his employment prospects in the community.[46]

    [44] R1, G10, page 61.

    [45] Transcript, page 45.

    [46] R1, G12.

14. The Applicant contended that he is no longer taking drugs and has been drug-free since he entered prison.[47] If he stays in Australia he can live with his aunt and uncle and will be supported to find employment and to continue his social rehabilitation, including through the Pasifika program. He also plans to participate in the program as a youth mentor.[48]

    [47] Transcript, page 25.

    [48] R1, G12, pages 78-79.

15. The Respondent contended that the protection of the Australian community weighed very heavily against revocation of the Cancellation Decision. The Applicant’s conviction for Reckless grievous bodily harm – in company should be viewed as very serious having regard to:

    ·The direction in paragraph 8.1.1(1)(a)(i) of Direction No 99 that ‘violent crimes’ are viewed very seriously by the Australian Government and the Australian community noting the categorisation of the Applicant’s offence as both violent and serious is also supported by the comments of the sentencing judge;[49]

    ·The serious injuries to the victim including ‘a life-threatening stab wound to his chest area and a deep wound to his wrist’ requiring 19 days hospitalisation;[50]

    ·The sentencing imposed by the court as a reflection of the objective seriousness of the offence noting sentences of imprisonment are a last resort in the sentencing hierarchy.[51]

    [49] RSFIC, page 8; R1, G6, page 47.

    [50] RSFIC, page 9; R1, G6, pages 41-42.

    [51] Direction No 99 paragraph 8.1.1(1)(c); RSFIC, page 9.

16. The Respondent also submitted with respect to the risk to the Australian community that:

    ·The nature of the harm that would be caused to the Australian community if the Applicant were to reoffend is very serious and could include serious physical, financial and psychological harm;

    ·The Applicant’s poses an unacceptable risk of re-offending having regard to:

    oThe lack of psychological opinion providing any professional risk assessment of the Applicant’s likelihood of reoffending;[52]

    oThe sentencing judge regarded the Applicant’s prospects of rehabilitation as ‘reasonable but guarded’ and Applicant’s rehabilitation is untested in the community;[53]

    oThe Applicant has demonstrated a propensity to carry knives in the past, which is a serious concern when considering the safety of the community. Previous restrictions imposed by judicial officers did not deter him from carrying a knife in public. He was subject to conditional liberty at the time of the Reckless grievous bodily harm – in company offence;[54]

    oThe Applicant has a reported history of associating with the ‘Greater Western Gang’[55] and his ability to refrain from contact with antisocial peers has not been tested in the community;[56]

    oThe support of the Applicant’s family was not a protective factor against his offending in the past suggesting it may not be sufficient to prevent his re-offending in the future;[57]

    oThe Applicant has demonstrated limited remorse including refusing to write a letter of apology to the victim;[58] and

    oThe Applicant has a history of drug and alcohol use including with respect to the offence and his sobriety has not been tested in the community. Further he does not propose to continue drug and alcohol rehabilitation or counselling in the community.[59]

    [52] RSFIC, page 10.

    [53] RSFIC, page 10: R1, G18.

    [54] RSFIC, page 10; R1, G12, page 80.

    [55] R1, G9, page 55.

    [56] RSFIC, page 11.

    [57] RSFIC, page 11.

    [58] RSFIC, page 11; R1, G6 page 44 and G9, page 57.

    [59] RSFIC, page 11; Transcript, page 41.

17. While the Respondent made reference in submissions to paragraph 8.1.2(1) of Direction No 99 providing that some conduct and the harm that would be caused if it were to be repeated is so serious that any risk that it may be repeated may be unacceptable, the Respondent did not submit that any risk of reoffending was unacceptable in the Applicant’s case. The Respondent submitted that the Applicant presented ‘a real and unacceptable risk of reoffending based on a number of factors’,[60] which included those detailed above.

    [60] Transcript, page 39.

18. The Respondent contended that this primary consideration weighed heavily against revocation of the Cancellation Decision.

    Nature and seriousness of the conduct

19. In considering the nature and seriousness of the Applicant’s criminal offending and other conduct to date, paragraph 8.1.1(1) of Direction No 99 provides that the Tribunal must have regard to the following:[61]

    [61] See also Direction No 99 para 8.1(2)(a).

    a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

    i. violent and/or sexual crimes;

    ii.crimes of a violent nature against women or children, regardless of the sentence imposed;

    iii.acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

    b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

    i. causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

    ii. crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

    iii. any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));

    iv. where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;

    c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

    d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;

    e)the cumulative effect of repeated offending;

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

    g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).

    h) where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

    The Applicant’s offence

20. As noted earlier, on 1 April 2021, the Applicant was convicted in the District Court of New South Wales at Paramatta of Reckless grievous bodily harm – in company, for which he was sentenced to 3 years and 6 months imprisonment, with a non-parole period of 2 years.[62]

    [62] R1, G5.

21. According to the sentencing judge’s remarks, the offence was committed on 21 December 2019 in Parramatta. The Applicant and three of his associates were in the foyer of a serviced apartments building in Paramatta. As they were leaving the building another group approached, including the victim. There was an altercation between one of the victim’s associates and one of the Applicant’s associates. The Applicant’s associate walked up to the victim’s associate and punched him to the ground. He fell backwards, unconscious and remained unconscious for some time. The victim walked towards his associate who had been hit. The events which followed were recorded by the sentencing judge:[63]

    …[The Applicant] removed a 30 centimetre knife in a sheath from under his shirt and held it in his right hand while running towards the other three people. I note that the facts record that [one of the Applicant’s associates] threw a can of drink towards the victim and his associates.

    The victim and his two associates began to run away from the group of persons including [the Applicant], running away up a ramp towards the river and, at some stage, [the Applicant] stabbed the victim once, causing a wound to his right upper back area, below the shoulder blade, near his ribs, which was approximately 7 to 10 centimetres in length.

    [One of the Applicant’s associates] grabbed the victim, who had already been stabbed, and pushed him to the ground. While on the ground, [the Applicant’s associates] repeatedly kicked the victim to the torso and [one of the Applicant’s associates] stomped on the upper body of the victim. The victim responded by kicking him away. The victim’s associate… turned back to assist the victim but he was prevented from doing so by [one of the Applicant’s associates], who stood in front of him with his hands at chest height.

    While the victim was still on the ground, [the Applicant] lunged the blade of the knife towards him. The victim had his arms and legs up to defend himself. [The Applicant] stabbed the victim towards the left side of his body from above, causing a deep wound to the victim’s left forearm. The victim kicked [the Applicant] away, stood up and ran towards Parramatta River with [one of the Applicant’s associates] chasing him and his associates.

    [63] R1, G6, page 39.

1. The events took place in ‘a public place, in daylight, with members of the public around’.[64] The events were captured on CCTV footage.  The Applicant fled to a nearby carpark and placed the knife into some surrounding woodchips.

   [64] R1, G6, page 40.

2. Not long after the Applicant was apprehended by police. The sentencing judge notes that:[65]

   Following his arrest, [the Applicant] had a conversation with police in which he made various admissions, including to stabbing a guy with a knife and said, “I had it on me. My mate started it. He was talking shit. He got jumped and I stabbed the guy in the back.”

   Police observed blood on his hands, which had previously been covered by the puffer jacket. [The Applicant] told police where the knife was located and it was recovered and found to be a Wiltshire brand stay-sharp kitchen knife with a silver blade and a black handle.

   [65] R1, G6, page 40.

3. At the hearing before the Tribunal the Applicant accepted this account of offence when put to him in cross-examination.[66] He accepted he committed the offence and was sentenced as recorded.

   [66] Transcript, pages 10-12.

4. The sentencing judge also noted with respect to the victim:[67]

   Following the assault, the victim and his associates ran away around the corner, towards the restaurants facing Parramatta River. The victim began to feel like he could not breath and that he was dying. The victim was assisted by members of the public, who put pressure on his wounds. He was barely responsive by the time police and ambulance officers arrived. When the ambulance officers did arrive, they identified what was described as a catastrophic haemorrhage with significant lung involvement. The victim was in a critical condition, having sustained a life threatening stab wound to his chest area and a deep wound to his wrist. He was taken to Westmead Hospital …...

   Medical examination revealed that the victim had a 5 centimetre right paraspinal laceration about 10 centimetres in width, which was actively bleeding. He also had a left wrist laceration which was of considerable seriousness and which was observed by paramedics to be very deep.

   It is an agreed fact that the injuries sustained breached the epidermis and the dermis of the skin and were of a really serious kind.

   [67] R1, G6, page 41.

5. The victim also had a laceration to his liver, collapsed lung, a small frontal scalp haematoma and a possible right diaphragm crura injury. The victim underwent a number of surgical and other treatments in hospital before being discharged 19 days later.[68]

   [68] R1, G6, pages 41-42.

6. The Applicant accepted the account of the victim’s injuries and treatment was put to him at the hearing.[69]

   [69] Transcript, page 12.

7. Also relevant to the considerations before the Tribunal, his Honour went on to assess the ‘objective seriousness’ of the offence in his sentencing remarks. His Honour noted that the objective seriousness of what he describes as ‘without doubt, an extremely serious offence’ was marked by the following:[70]

   ·the significant maximum penalty that applied to the offence;

   ·the offender stabbed the victim on two separate occasions, the second of which occurred when the victim was helpless on the ground;

   ·the injuries were also a serious example of grievous bodily harm, involving nerve damage and a severed artery and were life threatening, particularly the stab wound that involved the liver;

   ·the intentional use of a weapon;

   ·the offence could not be regarded as having been provoked given that the Applicant and the victim were not involved in the earlier altercation – the Applicant’s actions were more accurately described as a form of retaliation;

   Having regard to these factors the sentencing judge assessed the offence to be ‘around the mid-range of seriousness’.

   [70] R1, G6, pages 42-44.

8. His Honour noted as an aggravating factor that the Applicant was subject to conditional liberty at the time of the offence and that he was not entitled to leniency applying to a first offence. He also noted the Applicant had a history of carrying a knife in public.[71]

   [71] R1, G6, pages 43-44.

9. With respect to ‘subjective matters’ the court observed the Applicant had a difficult history including expulsion from school in Year 11 and substance abuse including cannabis, ecstasy, cocaine and alcohol which he reported using just prior to the offence. The Court accepted the Applicant’s personal history warranted some mitigation in sentence. It was recorded that a Youth Justice Report in October 2020 concluded he ‘showed little remorse and tended to justify his actions’. He had declined to write a letter of apology to the victim.[72]

   [72] R1, G6, page 44.

10. Several mental assessments were referred to in sentencing including by a psychologist, Ms El-Hassan,[73] and neuropsychologist, Dr Werner.[74] Copies of these reports were before the Tribunal. According to the sentencing remarks, both assessed there was no evidence the Applicant was suffering from a mental disability though Ms El-Hassan considered he may be suffering from ADHD and Dr Werner made a differential diagnosis of ASD and Social Communication Disorder. It was concluded the Applicant was functioning ‘within normal limits’ and was not suffering from a mental illness or mental condition, however he was suffering from a neurological disorder which would benefit from further investigation. It was concluded by Dr Werner that impairments in his social functioning ‘have shaped his poor judgement’ at the time of the offence.[75]

    [73] R2, TB3, pages 182-186.

    [74] R1, G14, pages 97-104.

    [75] R1, G6, pages 44-46; G14, pages 103-104 per Dr Werner.

11. The sentencing judge accepted the conclusion that the Applicant’s ‘impairment’ shaped his judgment at the time of the offence but noted that the conclusion:[76]

    Has to be balanced against the fact that this is not the offender’s first offence and his criminal history indicates that he was in the habit of carrying knives, which is a serious concern when considering the safety of the community.

    [76] R1, G6, page 45.

12. The sentencing judge noted the positive signs the Applicant was taking ‘steps towards controlling his impulsive nature and anger problems’ and had been making efforts towards positive change. As noted above, he also assessed there were ‘reasonable but guarded’ prospects for rehabilitation.[77]

    [77] R1, G6, page 46.

13. The sentencing judge referred to the principle that greater weight must be given to rehabilitation given the Applicant’s age at the time of the offence noting also the accepted research that the brains of young males are not fully developed until their mid-twenties.[78] However he noted this did not apply where the offender, in this case the Applicant, ‘conducts themselves as an adult and commits an offence of considerable gravity’. He went on to note that the Applicant’s offence was one of ‘considerable gravity’ and that his actions had ‘the hallmarks of a person acting as a violent adult’.[79] Having regard to the nature and seriousness of the offence and the fact the Applicant was almost 17 at the time of the offence and 18 at the time of sentencing, the sentencing judge assessed it was appropriate to deal with the offence according to law and not as an offence under the provisions applying to children.[80]

    [78] Citing BP v R [2010] NSWCCA 159.

    [79] R1, G6, pages 46-47.

    [80] R1, G6, page 47.

14. The Tribunal notes it is required, pursuant to Direction No 99, to take into account a range of factors, including certain conduct which is to be regarded as ‘very serious’ or ‘serious’.  Relevantly, the Tribunal is to have regard to whether the Applicant has committed violent or sexual crimes, without limiting the range of conduct that may be considered to be very serious.[81] 

    [81] Direction No 99, para 8.1.1(1)(a)(i).

15. It is noted that the Applicant was 16 years old when the offence was committed. As the applicant was a juvenile at the time of the offence and at the time of earlier recorded conduct, the issue of the manner in which the Tribunal should treat the Applicant’s conviction and other conduct recorded in ACIC Criminal History Check dated 14 July 2021 was the subject of written and oral submissions by the Respondent.[82] Although these matters were discussed with the Applicant he did not make any submissions on this issue save for the general submission made that insufficient weight had been given by the delegate to the fact the Applicant was a child when the offence occurred.

    [82] RSFIC, pages 2, 7-8; Transcript, pages 37, 40.

16. As noted above, the sentencing remarks and other material before the Tribunal record that while the Applicant was a child aged 16 at the time of this offence, he was sentenced under the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA) rather than the Children’s (Criminal Proceedings) Act 1987 (CCPA).  However, an order was made under s 19 of the CCPA that he serve his term of imprisonment as a juvenile offender.[83]

    [83] R1, G6, pages 47-48.

17. It was submitted by the Respondent that while the offence of Reckless grievous bodily harm – in company under s 35 of the Crimes Act 1900 (NSW) is an indictable offence,[84] it is not a ‘serious children’s indictable offence’ for the purposes of the CCPA.[85] As such, the sentencing judge had a discretion under s 18(1) of the CCPA to sentence the Applicant according to law (that is, according to the CSPA), or in accordance with Div 4 of Pt 3 of the CCPA. Having regard to the matters set out in s 18(1A) of the CCPA, the sentencing judge elected to sentence the Applicant under the CSPA due to the nature and seriousness of the offence, the offenders age (nearly 17 at the time of the offence), his current age at sentencing (18), and his criminal history.

    [84] See Criminal Procedure Act 1986 (NSW), s 3(1) (definition of ‘indictable offence’), s 5 (certain offences to be dealt with on indictment).

    [85] See definition in s 3(1).

18. It was contended that in circumstances where the Applicant has offended as a juvenile, the principles outlined in the High Court’s decision in Respondent for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17 (Thornton) must be addressed. In Thornton, the High Court held that in considering whether to revoke a decision to cancel a person’s visa under s 501CA(4) of the Act, the effect of s 85ZR(2) of the Crimes Act 1914 (Cth) (Crimes Act) and s 184(2) of the Youth Justice Act 1992 (Qld) (Youth Justice Act) was that the Respondent could not consider Mr Thornton’s findings of guilt in Queensland as a child for which no conviction was recorded (see at [36] (Gageler and Jagot JJ) and [73]-[74] (Gordon and Edelman JJ)).

19. The Respondent contended that the issue considered in Thornton has no application to the Applicant’s offence of Reckless grievous bodily harm – in company because the Court in Thornton considered the effect of s 184(2) of the Youth Justice Act, which provided ‘[e]xcept as provided in this or another Act, a finding of guilt without the recording of a conviction is not taken to be a conviction for any purpose’. When read with s 85ZR(2) of the Crimes Act, the effect of s 184(2) of the Youth Justice Act was held to preclude consideration by the Respondent of findings of guilt by a child in Queensland for which no conviction was recorded.

20. The relevant provision in NSW is s 14(1) of the CCPA, which provides:

    (1) Without limiting any other power of a court to deal with a child who has pleaded guilty to, or has been found guilty of, an offence, a court—

    (a) shall not, in respect of any offence, proceed to, or record such a finding as, a conviction in relation to a child who is under the age of 16 years;

    (b) may, in respect of an offence which is disposed of summarily, refuse to proceed to, or record such a finding as, a conviction in relation to a child who is of or above the age of 16 years.

    (2) Subsection (1) does not limit any power of a court to proceed to, or record such a finding as, a conviction in respect of a child who is charged with an indictable offence that is not disposed of summarily.

21. The High Court is currently reserved on the issue of whether the principles outlined in Thornton apply to s 14(1) of the CCPA.[86]  However, it was submitted that whatever the outcome of the consideration in that case, s 14(1) of the CCPA has no application to the Applicant’s offence of Reckless grievous bodily harm – in company because he was 16 years of age at the time of the offence, and it is an indictable offence for which he received a conviction and sentence of imprisonment.

    [86] Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCATrans 161 on appeal from [2022] FCA 454. (S12/2023) (Lesianawai)

22. The Tribunal accepts that submission. As the Applicant was dealt with under the law, effectively as an adult other than with respect to the application of the CCPA sentencing principles and the service of his term in a juvenile facility. The decision by the sentencing court to do so was made by reference to the relevant statutory considerations under the CCPA (s 18(1A)) including the nature and seriousness of the offence and the age of the Applicant.  Applying those considerations, the Court determined the Applicant should be dealt with according to law and not the CCPA.   Accordingly, in the Tribunal’s view the considerations arising in cases where children are afforded beneficial treatment including that convictions are not recorded (of the type discussed by the High Court in Thornton and under consideration in Lesianawai) do not apply to this offence which was recorded as a conviction and which consequently gave rise to exercise of power under the Migration Act.

23. This was a violent offence using a weapon, in a public place and which caused significant injury to the victim. The Applicant was convicted according to law and a conviction was recorded for the offence, albeit with the Applicant served his sentence in a juvenile facility. In the Tribunal’s view, having regard to the circumstances of the offence including as reflected in the sentencing remarks, which were accepted by the Applicant, and noting the observations regarding the seriousness of the offence, the Tribunal considers that the Applicant’s offence was very serious.

24. Different treatment applies with respect to the Applicant’s earlier recorded interactions with the Children’s Court where no convictions were recorded. The Respondent contended that it only relied upon the Applicant’s conviction for Reckless grievous bodily harm – in company and that the Tribunal may, out of an abundance of caution, disregard the Applicant’s other juvenile offending. 

25. The Tribunal accepted these submissions in part. In the Tribunal’s view it is consistent with the authorities cited that where no conviction is recorded, the Tribunal should not have regard to any such ‘findings of guilt’ as convictions (or offending). Further, the Tribunal should have regard to the significance of those protections in place for young offenders.  However, in the Tribunal’s view, this prohibition does not extend to considering the Applicant’s conduct as a child or young person  where that conduct has been a factor in the Court’s assessment of the seriousness of the Applicant’s recorded offence as is the case in this instance. Further, the Applicant has conduct engaged in as youth which is recorded is psychological assessments and sentencing reports. which he accepted, including having previously carried a knife and having associated with persons connected with gangs.  In the Tribunal’s view, such conduct may be relevant to and properly taken into account in assessing considerations such as the likelihood of reoffending, at least to the extent the relevant risk of reoffending is by reference to a recorded offence.

26. The Tribunal affords heavy weight to the fact the Applicant’s recorded conduct was conduct as a juvenile, engaged in when an Applicant did not have the benefit of maturity in regulating their ‘moods and impulses’. As the sentencing judge noted this is recognised to be an issue of additional significant for young men.

27. As such the Tribunal does not place weight on the applicant’s conduct as a juvenile as contributing to the assessment of the Applicant’s offending as very serious.  In that respect the recorded conviction stands alone. However, the Tribunal considers it is relevant to assessing the likelihood the Applicant might reoffend and the risk he presents to the community as a result (considered further below).

28. The Tribunal considers such an approach to be consistent with the authorities cited.

29. The Tribunal considers the serious nature of the Applicant’s offence is also reflected in the sentencing imposed by the court.[87] The sentencing judge’s comments reflect that he considered, given the seriousness of the offence the only appropriate sentence was one of immediate imprisonment.  The Tribunal considers that a sentence of 3 years and 6 months imprisonment was significant having regard in particular to the Applicant’s relative youth at the time of the offence and the fact this was his first recorded offence.  

    [87] Paragraph 8.1.1(1)(c) of Direction No 99.

30. A psychology report prepared by the Cobham YDC in the context of sentencing for the Reckless grievous bodily harm – in company offence indicated that the Applicant had received several community and custodial based orders and that ‘his previous charges illustrate an escalation in the frequency and severity around the use of violence over the course of his Youth Justice involvement’, noting also that he had been non-complaint with community based orders.[88] While the Tribunal notes the Applicant had prior ‘Youth Justice involvement’ in the period in 2019 leading up to his conviction, he only has one recorded conviction. Given this, the Tribunal does not consider that frequency of offending contributes to the overall assessment of his conduct or offending as very serious.[89] Nor does the Tribunal consider that an increasing trend of seriousness was a feature of his conduct and offending adding to the overall seriousness of that offence, have for the fact the Applicant accepted he had carried a knife previously and the use of that knife to inflict serious injury on the victim was an escalation in that conduct.[90] 

    [88] R2, TB1, page 20.

    [89] Paragraph 8.1.1(1)(d) of Direction No 99.

    [90] Paragraph 8.1.1(1)(e) of Direction No 99.

31. There is no information before the Tribunal to suggest any of the other factors identified in paragraph 8.1.1(1) of Direction No 99 are relevant in the Applicant circumstances.

32. Overall, the Tribunal considers the Applicant’s conduct and offending, principally reflected in his recorded conviction, to be very serious.

    Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

33. The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Paragraph 8.1.2 of Direction No 99 states, in part:[91]

    (1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

    (2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

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

    b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    i.       information and evidence on the risk of the non­citizen re-offending; and

    ii.      evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …

    [91] See also Direction No 99 para 8.1(2)(b).

    Nature of the harm

1. In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals or the Australian community should the Applicant reoffend.[92]

   [92] Direction No 99 para 8.1.2(2)(a).

2. The Applicant committed a violent attack with a weapon which caused significant injuries to the victim. His injuries required extended hospitalisation and as acknowledged by the Applicant could have caused his death. The Applicant also acknowledged his conduct caused members of the community to be fearful for their safety. The Tribunal accepts the Respondent’s submissions, which the Applicant did not contest, that were the Applicant to commit further offences or engage in other serious conduct, the harm to individuals or the Australian community would include physical, financial and psychological harm to members of the Australian community. 

3. The Respondent submitted that offending in general will also have broader financial and other consequences to the justice and health systems, contending that the reasoning in the decision in Buntin v Respondent for Immigration , Citizenship and Multicultural Affairs[93] is ‘plainly wrong’. Respectfully, even if it were open to the Tribunal to disagree with Her Honour’s reasoning in Buntin, which the Tribunal considers it is not, the Tribunal does not consider such an argument that decision should be departed from, has particular force in this matter. The Applicant has one recorded conviction. While he had engaged with the youth justice system it cannot be said that he did so over an extended period prior to that conviction.

   [93] [2023] FCA 1055 at [103]-[106].

4. The Tribunal does not consider Her Honour’s reasoning would prevent consideration of the specific harm caused by violent offending of the type engaged in by the Applicant, or that it would preclude consideration that the harm caused by reoffending would include the financial and psychological harm to the victim and to the community to the extent they exposed to or impacted by that conduct (such as witnesses and family members). The Applicant acknowledged those impacts and did not contest them. As such the Tribunal considers the decision has limited relevant to the Applicant’s case.

5. The Tribunal considers the harm which would be caused if the Applicant were to reoffend is very serious.

   Likelihood of the non-citizen engaging in further criminal or serious conduct

6. In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must also consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community.[94]

   [94] Direction No 99 para 8.1.2(2)(b).

7. The Applicant contends he has learnt his lesson, matured, improved himself and will not reoffend. In the material supporting his request for revocation he stated:[95]

   I know I will not re-offend because I know what I will lose if I do. I value my family and the chance to build a better life for me and us in Australia.

   …..

   Rap 4 Change are helping me get a job in landscaping. I am continuing in Rap 4 Change mentorship going back into the community.

   In his letters accompanying his request he stated:[96]

   I know I can do great things when I get out because my life has changed in custody. I know that I will not re-offend because I take this very seriously and will not let myself down or risk hurting my family again when I know I can live a safe and happy life in Australia. My Mum brought me to Australia for a better life and I know I can be a good member of the community. My plan is to work, finish my parole, spend time with my family and continue working with my Mentors in the community to help other young boys who are in the wrong groups. I don't want to miss out on giving back to the community and helping support my family.

   [95] R1, G11, page 73.

   [96] R1, G12, page 79.

8. He submitted that at the time of his offence he was ‘young, naive, clueless, gullible with no home or family.’ He stated that he ‘followed my friends who were my family and relied on them for a place to sleep, eat and support.’ He stated he felt regret and shame for his actions. He recognised the victim could have died and acknowledged the pain that this would have caused his family, referencing the way he felt when his mother died. He stated he will no longer carry a knife, understanding the risks in this kind of behaviour even if for self-protection. He has matured and has better understanding of himself. He stated:[97]

   I really understand better the meaning of 'consequences of our actions' especially when we don't think our actions through. I want to be in control of consequences of my actions because I now know better.

   ……

   I always think back to the 16-year-old me. I know I still have a long way to go, but for the first time, I know where I want to be and how I will get there. For the first time I am hopeful that my life will be better, and I have the skills, knowledge, and the right mindset to change my life for the better. No one else is responsible or can change me. I truly recognise what I have done wrong and the poor choices I have made along the way that ended up causing harm to another person. I sincerely apologise for my actions and the harm it caused the victim and his family. I have been working on myself to improve my mindset mainly in the last 12 months and go to counselling with psychologist and attend school and programs that will help set me up for a better future and life.

   I know it is not easy, but I am willing to work hard at it. I am thankful that the magistrate saw the progress I have made so far and gave me a chance. I know I have a lot to lose and there is no gain in negativity. I know everyone has opportunity but not everyone will use it. I want to use the opportunity I have to be a positive role model to my friends, family, little cousin's, and anyone else I can help.

   [97] R1, G12, pages 80-81.

9. Before the Tribunal he said he would not reoffend because he had ‘bettered himself’.  While he struggled to articulate the reasons he would not reoffend, the Tribunal understood him to be saying he had learnt skills including how to manage his anger and refrain from substance abuse. He had also learnt skills to help him find a job.[98]

   [98] Transcript, pages 22-23.

10. The Tribunal notes that the Applicant has engaged in a range of programs while in Cobham Youth Detention Centre (Cobham YDC).  While some of these were listed in the delegate’s decision, other are more recent and recorded in the various parole submissions prepared between October 2021 and May 2023 in the period leading up to the Applicant being moved to immigration detention. A summary of the programs identified by the Tribunal from the material includes:

    Records of Educational, Rehabilitation and Skills Programs

    ·Work and Development Order (WDO) dated 17 August 2020;[99]

    [99] R2, TB1, page 105.

    ·Certificate of Achievement Year 10 – RoSa dated 10 December 2020;[100]

    [100] R2, TB3, page 188; R1, G18, page 148.

    ·Pasifika Cultural Program Stage 1 – Mana (Anger & Violence) dated 2020;[101]

    [101] R2, TB3, page 189; R1, G18, page 145.

    ·Pasifika Cultural Program Stage 2 – Journey I of the Pasifika Cultural Program 2020;[102]

    [102] R2, TB3, page 190.

    ·Certificate of Completion – Rap 4 Change Future Leadership Program Stage 1 dated 10 September 2020;[103]

    [103] R2, TB3, page 191; R1, G18, page 149.

    ·Certificate of Achievement for YourTown Job Ready Program dated 6 November 2020;[104]

    [104] R2, TB3, page 192; R1, G18, page 137.

    ·Putland Education & Training Unit – Teacher’s Award dated 17 February 2021;[105]

    [105] R2, TB3, page 193.

    ·Putland Education & Training Unit – Teacher’s Award dated 19 February 2021;[106]

    [106] R2, TB3, page 194.

    ·X-Roads Certificate for Achievement dated 29 July 2021, Modules;[107]

    [107] R1, G18, page 136.

    -    Motivation to change (AOD)

    -    Urges and cravings

    -    Problem solving (AOD)

    -    Mapping my substance abuse

    -    Thinking and substance abuse

    -    Communicating effectively

    -    Staying on track

    ·CHART Certificate of Completion of the 6 Core Modules dated 1 April 2021;[108]

    [108] R1, G18, page 139.

    -    Motivation to Change

    -    Problem Solving

    -    Mapping my Offences

    -    Thinking and Offending

    -    Healthy Relationships

    -    Relapse Prevention

    ·CHART Certificate of Completion of Understanding Anger dated 27 November 2020;[109]

    [109] R1, G18, page 140.

    ·CHART Certificate of Completion of Alcohol and Other Drug Education dated 27 November 2020;[110]

    [110] R1, G18, page 141.

    ·CHART Certificate of Completion of Education and Work dated 21 June 2021;[111]

    [111] R1, G18, page 142.

    ·Certificate of Recognition for Participating and Completing New South Wales Police Fit for Life healthy lifestyle program dates 17 March 2021 to 5 May 2021;[112]

    [112] R1, G18, page 143.

    ·Australian Red Cross Save-a-mate alcohol and other drugs emergencies courses dated 30 August 2019, Modules;[113]

    [113] R1, G18, page 144.

    -    Substances and their classifications

    -    Effects and patters of substance abuse

    -    Risk factors of an overdose/emergency

    -    Signs and symptoms of an overdose/emergency

    -    Harm reduction strategies

    -    First aid responses

    ·Greenlife Industry Australia Certificate of Membership dated 2021;[114]

    [114] R1, G18, page 146.

    ·Statement of Attainment – Safety access the rail corridor dated 7 May 2021;[115]

    ·Putland Education and Training Unit Portfolio Report dated 6 August 2021;[116]

    ·Rap4Change Leadership Program;[117]

    ·Your Town Program; [118]

    ·A1 Sportswest Mindset and Fitness; [119]

    ·PCYC Fit-4-life; [120]

    ·Barista (Hospitality) Course; [121]

    ·Work Safety in the Construction Industry (white card) course;[122]

    ·Box Fit;[123] and

    ·Responsible Service of Alcohol (RSA).[124]

    [115] R1, G18, page 147.

    [116] R1, G16, pages 113-132.

    [117] R2, TB1, page 120.

    [118] R1, G16, pages113-132; R2, TB1, page 120.

    [119] R2, TB1, page 120.

    [120] R2, TB1, page 120.

    [121] R2, TB1, page 119.

    [122] R2, TB1, page 119, 159.

    [123] R2, TB1, page 159.

    [124] R2, TB1, page 159.

11. While material before the Tribunal suggests that the Applicant initially struggled to engage with rehabilitation programs and counselling in the YDC, the reports that referred to the Applicant’s performance or participation in these later programs were overwhelming positive in their assessment of their Applicant’s commit to self-improvement, rehabilitation and learning. The Tribunal considers that despite earlier challenges, the material demonstrates the Applicant has used the opportunities for rehabilitation and growth offered to him at Cobham YDC and that as he has done so this has given him self-confidence and a sense of achievement which has enabled him to assume leadership roles within Cobham YDC. Given his relative youth, the Tribunal gives his commitment to change significant weight in his favour in the assessment of him likelihood of reoffending.

12. As noted earlier, the following psychological reports were before the Tribunal:

    Psychological Reports

    ·Neuropsychological Assessment by Dr Travis Wearne B Psych dated 19 March 2021;[125]

    ·Psychological Assessment by Houda El-Hassan Psychologist dated 9 December 2020;[126] and

    ·NSW Government Juvenile Justice – Confidential Psychological Report by Judy Tien dated 20 October 2021.[127]

    The first two reports were offered by the defence in the sentencing proceedings. Their general import was described in the sentencing judge’s comments and noted above. The third was an assessment prepared by Cobham YDC in the context of suitability for parole. There was also a detailed ‘Background report’ prepared for court which included an account of the Applicant’s family circumstances.[128]

    [125] R1, G14, pages 97-104.

    [126] R2, TB3, pages 182-186.

    [127] R2, TB1, pages 18-27.

    [128] R2, TB1, pages 28-37.

13. The Respondent submitted that there was no psychological opinion providing any professional risk assessment of the Applicant’s likelihood of reoffending. However, as discussed with the Respondent at the hearing, the ‘Confidential Psychological Repot’ which was prepared by a psychologist at Cobham YDC for purposes of assessment by Paramatta Children’s Court for the purpose of determining the Applicant’s suitability for release on parole ‘by considering his risk of reoffending’. While the report did not put a value on the Applicant’s risk of reoffending, it did contain an assessment of the results of structured risk assessment tools and analysis of the risk and protective factors against reoffending in the Applicant’s case. The Tribunal considered this to be a professional risk assessment relevant to the considerations before the Tribunal.  The Respondent conceded this was the case.[129]

    [129] Transcript, pages 39-40.

14. Several factors in the Cobham YDC report were identified as relevant to the assessment of risk. The report notes that the Applicant has been subject to community and custodial based orders.  The report notes the Applicant ‘endorsed a belief system that the use of violence is appropriate when safety of self or others is perceived to be threatened’.[130] The report noted daily use of cannabis and possession of contraband in custody. The report notes:[131]

    Aloisio’s pro-violent attitudes include weapon-carrying and the use of reactive means such as violence to cope with hypervigilance, anger and perceived harm to himself and others. Additionally, this highlights Aloisio’s poor problem-solving skills, which can lead to increased impulsivity and violent offending, which can also be exacerbated by substance use.

    [130] R2, TB1, page 20.

    [131] R2, TB1, page 25.

15. The Report notes the Applicant had undertaken counselling over (at that time) a seven-month period addressing antisocial attitudes and beliefs and had engaged with a variety of programs in custody.

16. These risk assessments indicated the Applicant presented with ‘multiple historical risk factors’ including a history of traumatic experiences and instability in accommodation. Association with negative influencing peers and engagement in illicit substance use were also factors. The Applicant presented with:[132]

    ‘limited insight into his risk of violent recidivism’.  Further ‘while there have been improvements in his consequential thinking skills, he has not demonstrated an understanding of how his attitudes to violence and weapons carrying can increase his risk of violent reoffending. He also denied the need for additional professional support or treatment I the community, and minimised potential barriers and concerns he may face once released’.

    [132] R2, TB1, page 24.

17. It was also noted that a return to New Zealand may cause the Applicant to rely of ‘previous maladaptive coping strategies’ namely substance use or negative peer associations.  It was noted that stress-induced risk of reoffending may be ‘ameliorated’ with the support of his family.[133]

    [133] R2, TB1, page 24.

18. In summary following were identified as risks:

    ·Association with negative peers;

    ·Substance use;

    ·Unaddressed historical grief;

    With respect to peers the report noted:[134]

    Aloisio’s pattern of offending, and involvement in incidences in custody (such as, engaging in a refusal with other detainees) indicate the strong impact peer influences have on Aloisio. As such, continued association with anti-social peers, in addition to limited insight into his attitudes towards violence, will likely maintain or increase his risk of engaging in violent behaviours and offending in the future.

    [134] R2, TB1, page 25.

19. The protective factors identified in the Cobham YDC psychologist’s report included resilience and positive engagement with interventions and positive future-motivated plans. His recommended treatment plan involved targeting interventions around:[135]

    [135] R2, TB1, page 26.

    ·Challenging attitudes supportive of violence (including interpersonal violence as well as weapon carrying).

    ·Exploring identity and values which may challenge antisocial peer associations.

    ·Expanding emotion regulation and adaptive coping skills.

    ·Increasing insight into risky behaviours and problem-solving skills.

    ·Developing skills around consequential thinking, mindfulness, and distress tolerance to reduce impulsivity.

    ·Counselling addressing his historical grief and trauma, disrupted attachments and instability.

    ·Improving interpersonal skills to strengthen positive social supports.

    ·Substance use counselling to support his personal goal of abstinence.

    106.It was also recommended that supports in the community include employment assistance, recreational and leisure activities such as sports, mentoring, volunteering, or activities offered at his family church ‘to increase prosocial community engagement and to build sense of empowerment’ and further psychological assessment for ASD.[136]

    107.The Tribunal notes these assessments were made more than 2 years ago. In the intervening period the Applicant has continued to benefit from rehabilitation, education and support programs up to his movement to immigration detention on completion of his sentence in June 2023.[137] The material before the Tribunal included regular parole submissions which assessed the Applicant to have met the requirements for parole but which recommended he remain in YDC while his immigration status was resolved to enable his ongoing access to education and treatment.  The following parole update reports contained assessments or reports on the Applicant’s conduct and rehabilitation progress:

    [136] R2, TB1, page 26.

    [137] R1, G7.  The exact date of the applicant’s movement to immigration detention was not clear on the materials.  However, he gave evidence he served his full sentence which was consistent with the other material on the file and was not contested by the Respondent.

    Parole Update Reports

    ·Submission to Parole Jurisdiction from David Ward and Kain Young dated 20 October 2021;[138]

    ·Submission to Parole Jurisdiction from David Ward and Kain Young dated 15 November 2021;[139]

    ·Submission to Parole Jurisdiction from David Ward and Kain Young dated 10 December 2021;[140]

    ·Submission to Parole Jurisdiction from David Ward and Kain Young dated 11 February 2022;[141]

    ·Submission to Parole Jurisdiction from David Ward and Kain Young dated 22 April 2022;[142]

    ·Submission to Parole Jurisdiction from David Ward and Kain Young dated 4 July 2022;[143]

    ·Submission to Parole Jurisdiction from David Ward and Kain Young dated 26 September 2022;[144]

    ·Submission to Parole Jurisdiction from David Ward and Kain Young dated 24 November 2022;[145]

    ·Submission to Parole Jurisdiction from David Ward and Kain Young dated 24 January 2023;[146] and

    ·Submission to Parole Jurisdiction from David Ward and Kain Young dated 1 May 2023.[147]      

    [138] R2, TB1, pages 114-124.

    [139] R2, TB1, pages 111-113.

    [140] R2, TB1, pages 87-89.

    [141] R2, TB1, pages 106-108.

    [142] R2, TB1, pages 139-141.

    [143] R2, TB1, pages 84-86.

    [144] R2, TB1, pages 158-160.

    [145] R2, TB1, pages 14-17.

    [146] R2, TB1, pages 126-129.

    [147] R2, TB1, pages 80-83.

20. The Tribunal infers from the material in the parole submissions that it was considered preferrable for the Applicant to remain in the YDC system until his immigration status was resolved, rather than be moved to immigration detention.  It appears from the material that this, and not any concerns regarding the Applicant’s rehabilitation was the reason parole was not granted and the Applicant served his full sentence. The Tribunal considers that while the decision to keep the Applicant in Cobham YDC until his immigration status was resolved meant an extended period in youth detention, the reports indicate the Applicant benefitted from remaining in the YDC (as opposed to immigration detention), completing further education and professional qualifications during that period and continuing to have close monitoring and support from YDC staff.  During this time the Applicant demonstrated the benefits of increased maturity in assuming leadership roles and committing to further study and employment qualifications. As reflected in the parole submissions, these efforts have, in the Tribunals assessment, reduced the likelihood he will reoffend because they reflect a change in attitude and behaviour suggesting the rehabilitation programs and counselling have achieved their goals in moving towards addressing the Applicant’s criminogenic needs.

1. The Applicant identified several Australian citizen children whom he says will be impacted by the decision about whether the visa cancellation is revoked. Those children are:[163]

   ·Mstr T  – his cousin who is approximately 15 years old.

   ·Mstr Z– his cousin who is approximately 11 years old.

   ·Miss L– his cousin who is approximately 7 years old.

   [163] R1, G11, page 70.

2. The Tribunal is satisfied that the children are all Australian citizens or permanent residents who are currently residents in Australia.

3. The Applicant submitted that best interests of his three minor cousins weigh in favour of revocation as the Applicant is close to them, was living with them for a period prior to his offence and wants to be a good role model for them.[164]

   [164] R1, G11, Page 71.

4. The Respondent contends that less weight should be placed on the best interests of the Applicant’s three cousins as the relationship is non-parental, the children live with their parents and given the Applicant past offending the Tribunal should not be confident he will play a positive role in the children’s lives in the future.

5. The Applicant’s cousins are siblings and there was no evidence before the Tribunal suggesting that their interests differed significantly from each other, with respect to the decision, save for the differences in their ages. Accordingly, the Tribunal has considered their interests together, save for where there was evidence specific to one of the children.[165]

   [165] Direction No 99, par 8.4(3).

6. Limited information was before the Tribunal regarding the circumstances and interests of the Applicant’s cousins.

7. The Applicant’s relationship with the children is non-parental. The information suggests the Applicant’s cousins live with their parents, the Applicant’s Aunt and Uncle. There was no information they were dependant on the Applicant in any way to meet their daily physical or emotional needs. The Applicant stated in the personal circumstances form that he speaks to the children to help them make good decisions. He noted that for the younger two he has ‘missed a lot of time seeing them grow up’.[166]  The Applicant claimed his family will be hurt if he is deported.

   [166] R1, G11, page 71.

8. The children’s mother, Mrs Havili stated;[167]

   My family would describe Aloisio to be a loving, caring and friendly member of our family and we will continue to support him now and into the future.

   [167] R1, G13, page 82.

9. She asks that the Applicant be allowed to stay in Australia so she can continue to support him. While the Tribunal accepts Mrs Havili’s statements regarding the importance of the Applicant to the family, the views of the children are not directly known.[168] 

   [168] Direction No 99 para 8.4(4)(f).

10. The Applicant has maintained contact with the children electronic communication (claiming to speak to them everyday from detention) since he has been in YDC.[169] It would therefore be possible for the Applicant to continue to maintain contact with the children in this way, though the Tribunal accepts this is not a substitute for in person contact.[170] The Applicant stated he is committed to being a positive role model for his cousins and noting his efforts in juvenile detention, this may be possible if he does not reoffend.[171]

    [169] R1, G11, page 71.

    [170] Direction No 99 para 8.4(4)(d).   

    [171] Direction No 99 para 8.4(4)(b).

11. There is no evidence to suggest that the Applicant’s prior conduct has had a direct negative impact on his cousins.[172] There is no evidence that the children have been or are at risk of being abused or neglected by the Applicant.[173] There is no evidence that they have experienced any physical or emotional trauma from the Applicant’s conduct.[174]

    [172] Direction No 99 para 8.4(4)(c).

    [173] Direction No 99 para 8.4(4)(g).

    [174] Direction No 99 para 8.4(4)(h).

12. The Respondent submitted that it is unlikely the Applicant would play a positive parenting role in the future given his criminal history and drug use. The Tribunal accepts that he may not be a positive presence for the children if he does reoffend. This is demonstrated by past history where this Aunt and Uncle asked him to leave the home because of his inability to following family rules and where his Aunt reportedly expressed an unwillingness (at that time) to accommodate the Applicant ‘due to the impact of his behaviour on her younger children’.[175] 

    [175] R2, TB1, page 40.

13. However, Mrs Havili’s later statement acknowledged the Applicant’s progress towards rehabilitation and he willingness to support him.[176] Given Mrs Havili and her husband have acted in the past to protect the children from the negative impact of the Applicant’s behaviour, the Tribunal considers they would do so in the future should the Applicant not maintain his commitment to prosocial behaviour. Further, the Tribunal accepts based on their support for the Applicant that they consider any risk he represents to the children is one they will manage as parents as they have in the past.

    [176] R1, G13, page 82.

14. Having regard to their ongoing relationship, including through their membership and the Applicant’s broader family in Australia, the Tribunal finds it is in the best interests of the Applicant’s cousins, who are minors, that the Cancellation decision is revoked. However, given that the Applicant’s relationship with the children is non-parental and has been necessarily limited while he has been in prison or detention, it may not be positive if the Applicant does engage in further offending. The Tribunal gives only slight weight to this consideration in favour of revocation.

    Expectations of the Australian Community

15. The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Paragraph 8.5(1) of Direction No 99 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

16. Paragraph 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. The Direction notes that the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of particular kinds, none of which are relevant to the Applicant’s circumstances. The paragraph directs that, in particular, the Australian community expects that the Australian Government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in sub-paras 8.5(2)(a)–(f). Those particularised types of harm generally reflect some of the types of conduct included in para 8.1.1 as conduct which is considered ‘very seriously’ or ‘serious’. 

17. Paragraph 8.5(3) of Direction No 99 further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. In doing so, para 8.5(3) arguably further qualifies the ‘norm’ expressed in para 8.5(1), which refers to the ‘unacceptable risk’ of conduct being engaged in. This makes it clear that a ‘measureable risk’ of physical harm to the community is not required for the community expectation that the non-citizen not hold a visa to be engaged, where serious character concerns are raised through the persons conduct or offending. In any event, and for the reasons outlined earlier, the Tribunal has found that the Applicant presents a risk of reoffending.

18. This consideration will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future. The Applicant has breached this expectation by not obeying Australian laws. He has committed a violent offence which is very serious. Consequently, the expectation of the Australian community would be that the Applicant’s visa should remain cancelled.[177]

    [177] Direction No 99 para 8.5(1).

19. Paragraph 8.5(4) of Direction No 99 tells decision-makers that this consideration is about the expectations of the Australian community as a whole. It directs decision-makers to proceed based on the Government’s articulated views without assessing the community’s expectations in the particular case.

20. The Tribunal must determine what weight to give to this primary consideration in the Applicant’s circumstances. The Applicant arrived in Australia when he was 12 years old.  He committed the offence when he was 16 years old and has remained in custody or immigration detention since that time. Having regard to the principle in 5.2(5) of Direction No 99, the Tribunal finds that the Australian community would have a higher level of tolerance for the Applicant’s conduct because he has lived in the Australian community from a young age. The Tribunal has also found that the Applicant’s offence was very serious. In such circumstances the Tribunal finds that the community’s tolerance would be somewhat diminished, however noting the Applicant’s youth he would still be afforded some tolerance in community expectations.

21. The Tribunal finds that the primary consideration of the expectations of the Australian community weighs against the revocation. Having considered the above principles, the Tribunal affords the consideration moderate weigh against revocation of the Cancellation Decision.

    Other considerations

22. Paragraph 9 of Direction No 99 states:

    (1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

    a)legal consequences of the decision;

    b)extent of impediments if removed;

    c)impact on victims;

    d)impact on Australian business interests

    Legal consequences of decision under section 501 or 501CA.

23. The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[178]

    [178] Direction No 99 para 9.1.

24. In the personal circumstances form accompanying his request for revocation, in answer to the question regarding whether he had any fears or concerns about what would happen if he were to return to New Zealand, the Applicant indicated he would miss out on the opportunity ‘to get my life in order’ with the support made available to him in custody and was concerned he would not have the same support in New Zealand. In response to the question regarding whether there were any other problems he would face if he returned to New Zealand, he cited ‘financial support, access to employment and my support network’.  He noted that his family was his ‘greatest protective factor’ and if he is returned to New Zealand, ‘he won’t be able to be with them’.[179]

    [179] R1, G11, page 76.

25. He raised similar concerns when asked at the hearing if he had fears or concerns about returning to New Zealand.[180] In response to a question from the Tribunal he expressed a concern that some of his family members in New Zealand were affiliated with ‘colours’ and that ‘it’s a normal thing there’ though he did not provide any specifics of this or raise a particular concern about it in the context of his return.[181]

    [180] Transcript, pages 23, 31.

    [181] Transcript, page 26.

26. While the Applicant raised some concerns about returning to New Zealand, including a lack of family and rehabilitation support, he did not raise any claims to be owed protection either under refugee or complementary protection grounds. In the Tribunal’s view, on the information before it, the Applicant’s circumstances are not such as would suggest a non-refoulement claim arises.[182] Rather, his concerns seemed to focus more on the challenges he would face maintaining or continuing his rehabilitation and setting himself on a changed path. 

    [182] Direction No 99 para 9.1(3).

27. In any event, the Tribunal notes that on the information before it, the Applicant has never held a protection visa or had a protection visa refused in Australia. He is not an unauthorised maritime arrival. Accordingly, he would not be the subject of the bar preventing him from making a protection visa application in the future, if the Cancellation Decision is not revoked, and he fears serious or significant harm on return there. Should the Applicant have claims for protection arising from his return to New Zealand, they would be able to be made and considered in a protection visa application process.[183] He would not be liable for removal while any such application is determined.[184] For these reasons, the Tribunal does not consider non-refoulment obligations carry neutral weight in the Applicant’s circumstances.

    [183] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (Keifel CJ, Keane, Gordon and Steward JJ (with whom Gageler J agreed)) at [9]; Direction No 99 para 9.1.2(2).

    [184] Direction No 99 para 9.1.2(3).

28. As the Applicant did not expresses any concerns that he would suffer persecution of significant harm such as might give rise to protection obligations associated with his return to New Zealand the Tribunal has given further consideration to these concerns below when considering the extend of impediments if the Applicant is removed.

29. While this consideration in Direction No 99 refers to non-refoulment obligations, it also makes reference to detention and removal, highlighting that there are a range of legal consequences of a decision not to revoke the cancellation of the Applicant’s visa. The consequences of a visa refusal or cancellation under s 501 or related provisions include:

    ·Unlawful status;

    ·The likelihood of becoming subject to detention and/or removal;[185]

    ·Refusal of other visa applications and cancellation of other visas;[186]

    ·A prohibition on applying for other visas;[187] and

    ·Periods of exclusion and special return criteria may apply.[188]

    [185] Migration Act ss 189, 196, 197C, 198.

    [186] Migration Act s 501F.

    [187] Migration Act s 501E.

    [188] Migration Act s 503, special return criteria (SRC) 5001.

30. Where a visa application is refused or a visa is cancelled under s 501, any other non-protection visa held by that person is taken to have been cancelled.[189] Generally, if a visa is cancelled, its former holder becomes an unlawful non-citizen immediately after cancellation.[190] Under s 189 of the Migration Act, the Applicant must be detained and removed as soon as reasonably practicable.[191] As no protection finding has been made with respect to the Applicant, there is no information to suggest he would be detained indefinitely.

    [189] Migration Act s 501F.

    [190] Migration Act s 15.

    [191] The Court in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 followed AJL20 v Commonwealth of Australia [2020] FCA 1305 to find the applicant’s detention had at all times been lawful: at [112]-[122].

31. The parties did not make representations with respect to the broader legal consequences of the decision. However, submissions with respect to other considerations, including on the extent of impediments to removal, proceeded on the basis that the Applicant’s removal from Australia would be permanent, reflecting the legal consequences of cancellation under s 501.

32. Having regard to all the circumstances of the Applicant’s case, the Tribunal considers this consideration weighs neither for nor against revocation and affords the consideration neutral weight.

    Extent of impediments if removed

33. Paragraph 9.2 of Direction No 99 provides that taking into account the matters identified in sub-paragraphs 9.2(1)(a), (b) and (c) of Direction No 99, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of the basic living standards available to other citizens of New Zealand. The matters identified under sub-paragraphs 9.2(1)(a), (b) and (c) are:

    ·The Applicant’s age and health;

    ·Whether there are substantial language or cultural barriers; and

    ·Any social, medical and/or economic support available to the Applicant in their country.

34. The Applicant submitted that he faces substantial impediments if removed, predominantly with respect to his lack of rehabilitation and social supports in New Zealand, his risk of reoffending and his separation from his family supports in Australia. His concerns regarding return to New Zealand were detailed above (see paragraphs [158] to [160]).  In a similar vein to these concerns, his Aunt noted that returning to New Zealand ‘would be detrimental to his progress and prospects’, noting his direct family support is in Australia.[192]

    [192] R1, G13, page 82.

35. The Applicant accepted he would have access to the same services and supports as are available to citizens of New Zealand on return there. He submitted he may have difficulty finding employment because he did not have the same support being offered by the organisations he has been working with while he was in custody.[193]

    [193] Transcript, pages 26-27, 51.

36. The Applicant’s case worker in the Cobham YDC noted in her statement that:[194]

    If Aloisio was to be deported back to New Zealand I believe this would be detrimental to his continued progress and development, as this in essence is going against what he has worked on in custody. In addressing his trauma, grief and anger being deported would create a new sense of loss, disconnection from family and abandonment. Having participated in Victims Services Trauma Counselling in custody, Aloisio would be able to access further trauma counselling in Australia as his referral remains open upon discharge.

    [194] R1, G13, page 87.

37. Similarly, Mr Kwon from Confit Pathways, which provides support services at Cobham YDC, aimed at reducing recidivism stated:[195]

    I truly believe that if Aloisio is deported his confidence and outlook on life will diminish and undermine the excellent programs offered by Cobham Juvenile detention centre including Confit Pathways that have had a huge impact on his life so far. If Aloisio were to remain in Australia, he would be able to continue working with us, which would be greatly positive and beneficial to his success.

    [195] R1, G13, page 92.

38. The Respondent submitted that there was nothing to suggest the Applicant would be unable to re-establish himself in New Zealand and maintain basic living standards. The country was not unfamiliar to him, he had family there and while material suggested he may have ADHD or ASD, there was no formal diagnosis of these conditions and no other medical conditions requiring treatment were identified in the material or by the Applicant. He did not suggest past drug and alcohol use would be exacerbated on return and would have the same access to social, medical, mental health and economic support as other citizens of New Zealand.[196] The Tribunal was entitled to tale account that he would have access to similar government benefits as are available here.[197]

    [196] RSFIC, page 15.

    [197] RSFIC, page 15 citing Uelese v Minister for Immigration and Border protection (2016) 248 FCR 296.

39. The Tribunal asked the Applicant about his family circumstances in New Zealand. He said his father is in Auckland, New Zealand, however, he had not had contact with him since around 2019.  He said he had two brothers (one younger and one older) and one sister also living in New Zealand whom he speaks to ‘now and then’.[198] He also has aunties and uncles and cousins in New Zealand with whom he is in contact. He said he would live with his family members in New Zealand, but he doesn’t know who would take him and he told them he wants to fight to stay here.[199]

    [198] Transcript, pages 23-24.

    [199] Transcript, page 25.

1. There was material suggesting that, in 2019 when assessments were being made in the context of sentencing, the Applicant had indicated that he was ‘more than happy’ to return to New Zealand and stay with his Aunty Mele who understood his dynamics and circumstances and was prepared to support him.  It was recorded that he had confirmed his willingness to return to New Zealand and live with Mele, and that it would be in his best interests to go back and engage with the other part of his mother’s side of the family. It is also noted that he would have cultural support in New Zealand which he lacks in Australia.[200]

   [200] Transcript, page 30; R2, TB1, page 157.

2. The Applicant could not recall having made the statement but stressed he wanted to live here and did have supports available to him here. The Tribunal considers that his position has changed over time particularly, in light of the support he has received in custody including from cultural organisations such as Pasifika and Rap4Change, and the renewed support of his Aunt and Uncle here. As such the Tribunal does not place significant weight on the fact he was prepared to return to New Zealand several years ago.

3. The Tribunal accepts that the Applicant will suffer emotional distress as a result of returning to New Zealand. The Tribunal accepts the submission that there is no evidence that government supports would not be available to the Applicant in New Zealand, and that those would be similar to those available to him here. The Tribunal also considers that the Applicant has some insight into his offending which will make him better able to navigate and avoid anti-social associations in New Zealand. He also has immediate family in New Zealand and while his evidence raised concerns about whether his family network would provide a stable and prosocial environment, it is likely he would have some family support on return. 

4. However, noting the Applicant’s relative youth and inexperience having been detained since he was 16, the Tribunal considers that he has been provided with supports and community connections here which are designed to ensure he has integrated supports when he enters the community. Having regard to all his circumstances the Tribunal considers the lack of those specific support networks with whom he has built relationships of trust and with whom he has made plans for his prosocial reengagement with the community would be a significant impediment if he is returned to New Zealand. Further, the Tribunal accepts that the Applicant’s current family supports are strongest in Australia where his Aunt and Uncle have been engaged with those managing his rehabilitation and where they have witnessed his improvement and are cognizant of identified areas requiring support in the community.

5. Having regard to the assessments before the it, the Tribunal considers he would be at considerable increased risk of instability, substance use and reoffending if returned to New Zealand at this point. While the Tribunal does not consider these impediments to be insurmountable, it does consider them to be significant and to weigh in favour of revocation in the Applicant’s circumstances.

6. Overall, the Tribunal finds that the extent of impediments if removed, weighs strongly in favour of revocation of the Cancellation Decision in the Applicant’s circumstances.

   Impact on victims

7. Paragraph 9.3 of Direction No 99 requires the Tribunal to consider the impact of the decision on members of the Australian community, including victims of the Applicant’s criminal behaviour, and the family members of the victim or victims, where information is available and the Applicant has been afforded procedural fairness.

8. There is no information before the Tribunal regarding the effect of a decision under s 501 with respect to the Applicant’s visa application on the Australian community (other than as discussed above under the protection of the Australian community and the expectations of the Australian community primary considerations), any victims of the Applicant’s offending, or any family members of victims. Consequently, the Tribunal considers this consideration is not relevant in the Applicant’s circumstances.

   Impact on Australian business interests

9. Paragraph 9.4 of Direction No 99 states:

   (1)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

10. The Applicant did not suggest that his removal from Australia would adversely impact on Australian business interests.

11. The Applicant testified that he had opportunities for employment in Australia and the reference from Rap4Change referred to 2 confirmed job opportunities for him on release (though in 2021).[201] However, the Applicant did not suggest that any business interests would be impacted if the Applicant were not allowed to remain in Australia.

    [201] R1, G13, page 89.

12. The Tribunal considers this consideration is neutral in the Applicant’s case.

    CONCLUSION

13. The Applicant does not pass the character test under s 501 of the Migration Act.

14. The Tribunal has therefore considered whether there is ‘another reason’ why the Cancellation Decision should be revoked, having regard to the primary and relevant other considerations in Direction No 99.

15. Paragraph 7 of Direction 99 sets out the way in which the relevant considerations are to be taken into account and weighed.

16. There has been extensive judicial consideration of how the exercise of balancing and weighing the considerations contained in the relevant Ministerial Directions is to be undertaken (considering a number of Ministerial Directions preceding Direction No 99).[202] Recently, the Full Court of the Federal Court considered the operation of Direction 90 in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs.[203] While the Court was considering Direction No 90, it’s observations would apply to Direction No 99. The Court found that the Tribunal must weigh the various primary and other relevant considerations outlined in the Direction (in this case Direction No 99) against each other and undertake an evaluation of whether there was ‘another reason’ why the cancellation should be revoked.[204]

    [202] See Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591.

    [203] [2023] FCAFC 138.

    [204] At [35].

17. In determining the weight to be applied to each consideration, the Tribunal has considered all the primary and other relevant considerations and weighed them in light of the evidence and findings, and according to the guidance provided by Direction No 99. The Tribunal has considered each of the primary and other relevant considerations under Direction No 99 and whether those considerations weigh in favour or against revocation of the Cancellation Decision. 

18. The Tribunal has considered the weight to be applied to each consideration in the context of comparing and balancing all the considerations to determine whether the Cancellation Decision should be revoked.

19. The Applicant’s case presents a difficult challenge for the Tribunal. There is no doubt that he committed a very serious violent offence and that his time spent in the community was marked by anti-social conduct which caused challenges for his family and the authorities in managing his behaviour. However, there is strong support for the efforts he has made in custody and for his prospects of living a prosocial life in the community. Further, he is still very young and his prospects for rehabilitation require ongoing support from family and social organisations with whom he has built a plan for a more productive future.

20. The Tribunal has considered the primary considerations, including the protection of the Australian community and found that consideration weighed in favour of not revoking the cancellation. The Applicant committed a violent offence which caused serious injury to the victim. He did so using a weapon. The Tribunal found the there is a likelihood the Applicant will reoffend, albeit that likelihood has been reduced by his engagement with rehabilitation, self-improvement and education courses and the promise of support from family in Australia. The Tribunal found the harm which could be caused if he does reoffend would be serious. Having regard to all the circumstances, including the other considerations, the Tribunal places moderate weight on the protection of the Australian community against revocation of the cancellation of the Applicant’s visa.

21. The primary consideration of family violence was not relevant to the Applicant’s circumstances.

22. The best interests of the Applicant’s minor cousins weighed in favour of revocation. However, given the nature of his relationship with them the Tribunal places only slight weight on that consideration in favour of revocation of the Cancellation Decision.

23. The strength, nature and duration of the Applicant has ties to Australia, principally through his family members here and through the connections he has made in juvenile rehabilitation.  He came to Australia as a child and feels connected to the country, including because his mother is buried here. While the Applicant has family in New Zealand the Tribunal accepts he sees his future in Australia where he has the support of family and community networks. Having regard to all the circumstances, including the other considerations, the Tribunal places strong weight on this consideration in favour of revocation of the cancellation of the Applicant’s visa.

24. The Applicant has engaged in a very serious violent offence. The expectations of the Australian community as set out in Direction No 99 are that he would not continue to hold a visa. However, the Applicant arrived in Australia as a child and the Tribunal has found that the Australian community would have a higher level of tolerance for his conduct because of this. Having regard to the nature and seriousness of his offending the community’s tolerance for his offending would be somewhat diminished. However, noting his relative youth the Tribunal considers the community would continue to afford him a degree of tolerance. Having regard to the Applicant’s circumstances, the Tribunal considers the expectations of the Australian community weighs moderately against the revocation of the cancellation of the Applicant’s visa.

25. In relation to the relevant ‘other considerations’ identified in Direction No 99, the Tribunal finds that there is no suggestion non-refoulment obligations arise with regard to the Applicant’s return to the New Zealand. Having regard to his circumstances the Tribunal affords the consideration of the legal consequences of the decision neutral weight in the Applicant’s circumstances.

26. The Applicant will have access to some family support and government and social supports in New Zealand.  However, he is still a young adult and the lack of access to his identified and trusted support network in Australia in re-entering the community will be a significant impediment to him re-establishing a prosocial life if he is removed. In his circumstances, the Tribunal places strong weight on this consideration in favour of revoking the cancellation of his visa.

27. The impact on the victims and the impact on Australian businesses were not relevant in the Applicant’s circumstances.

28. The Applicant has made significant progress towards acknowledging his anti-social behaviour in the past and its underlying causes. He has made efforts to improve his education and skills and to give back by mentoring others in custody. However, he is very young and lacks insight into some of the challenges he may face in the community including with respect to drug and alcohol use and anti-social peers and there remains a risk he will reoffend.

29. Balanced against this, it must be recognised that the Applicant has been in Australia for a significant period of his life and considers Australia to be his home. He has established connections with support services and family who have recognised his commitment to change and wish to support him.

30. Paragraph 7(2) of Direction 99 states that primary considerations should generally be given greater weight than the other considerations. However, the Tribunal considers the Applicant’s circumstances are somewhat more complex due to his young age and the successful efforts made to foster his rehabilitation thus far.

31. In weighing these considerations against one another, the Tribunal finds that although there are strong reasons weighing against revocation of the Cancellation Decision, the countervailing considerations which favour revocation outweigh those considerations in the Applicant’s case.

32. In summary, having regard to all of the primary considerations, and the relevant other considerations in Direction No 99, the Tribunal is satisfied that there is ‘another reason’ why the Cancellation Decision should be revoked. The correct or preferable decision is that the Non-Revocation Decision be set aside and substituted that with a decision that the cancellation of the Applicant’s visa be revoked.

    DECISION

33. The decision of the delegate of the Respondent dated 31 October 2023 not to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Special) visa is set aside and substituted with a decision that the cancellation of the Applicant's visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

I certify that the preceding 207 (two hundred and seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member S Burford

....................[Sgd]........................................

Associate

Dated: 6 February 2024

Date of hearing:

17 January 2024

Applicant:

In person

Counsel for the Respondent:

Instructed by:

Mr A Hall

Ms G Ellis, Sparke Helmore Lawyers