MWCW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 777
•6 April 2021
MWCW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 777 (6 April 2021)
Division:GENERAL DIVISION
File Number(s):2021/0290
Re:MWCW
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Tribunal:Senior Member B. Pola
Date:6 April 2021
Place:Brisbane
DECISION
Pursuant to s43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 11 January 2021 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
..............................[SGD]..........................................
Senior Member B.Pola
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass character test – whether there is another reason to revoke the mandatory cancellation decision – consideration and application of Ministerial Direction No 79 – decision under review is affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Chung and Minister for Immigration and Border Protection (Migration) [2017] AATA 895
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Kohli and Minister for Immigration and Border Protection [2017] AATA 1326
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
TBNM and Minister for Home Affairs (Migration) [2019] AATA 850
Tera Euna v Minister for Immigration and Border Protection [2016] AATA 301
VKTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 649SECONDARY MATERIALS
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member B. Pola
6 April 2021INTRODUCTION AND BACKGROUND
The Applicant, MWCW, is a 41 year old citizen of New Zealand. Movement records indicate the Applicant was last granted a Class TY Subclass 444 Special Category (Temporary) visa (herein referred to as ‘Visa’ in these reasons), on arrival into Australia on 23 December 2019[1].
[1] Exhibit G1, G2, page 51.
The Applicant has a lengthy criminal history in Australia, including convictions for offences in relation to weapons, property and drug related offending, contraventions of Protection Orders, significant traffic related offences, and numerous breaches of non-custodial sentences[2]. The Tribunal notes that the Applicant also has a criminal offending record from his time in New Zealand[3].
[2] Exhibit G1, G2, pages 31 to 36.
[3] Exhibit G1, G2, page 37.
The Applicant’s criminal history shows that during the final sentencing episode which occurred before a Magistrates Court in Queensland in March 2020, the Applicant received a sentence with a term of imprisonment of 12 months for the unlawful possession of a category D/H/R weapon, to be served concurrently alongside multiple other offences at this sentencing episode[4].
[4] Exhibit G1, G2, page 32.
Whilst serving a term of imprisonment, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (herein referred to as ‘Minister’ or ‘Respondent’), pursuant to s501(3A) of the Migration Act 1959 (Cth) (herein referred to as the ‘Migration Act’), decided on 30 April 2020 to mandatorily cancel the Applicant’s Visa (herein referred to as the ‘Visa Cancellation Decision’). This was done on the basis that he did not pass the character test pursuant to s501(6) of the Migration Act [5].
[5] Exhibit G1, G2, pages 57 to 65.
Following the Visa Cancellation Decision, the Applicant made submissions to the Respondent[6].
[6] Exhibit G1, G2, pages 72 to 96.
On 11 January 2021, the Respondent decided not to revoke the cancellation of the Applicant’s Visa pursuant to s501CA(4) of the Migration Act[7].
[7] Exhibit G1, G1, pages 7 to 30.
The Applicant lodged an application with the Administrative Appeals Tribunal (herein referred to as the ‘Tribunal’) on 20 January 2021 seeking a review of the abovementioned decision not to revoke the cancellation of his Visa, within the required time frame[8].
[8] Exhibit G1, G1, pages 1 to 6. For the Tribunal to have jurisdiction to review the decision, the Applicant must also have lodged the application for review with the Tribunal within nine days after the day on which he or she received notification of the decision, refer to s500(6B) of the Migration Act.
The application was heard in Brisbane on 15 March 2021, with the Applicant self‑represented and appearing via video link. The Respondent was represented by Mr Alex Booth of Clayton Utz, also appearing by video link. The Tribunal heard oral submissions by the Applicant and Respondent, in addition to submitted evidence as outlined in the Exhibit Register in Annexure 1 of these reasons.
Additionally, the Tribunal heard evidence from the following witnesses called by the Applicant:
(i)Mr H (the Applicant’s father), who submitted a letter of support for the Applicant (Exhibit A2);
(ii)Ms D (the Applicant’s sibling), who submitted a letter of support for the Applicant (Exhibit A3); and
(iii)Ms J (a friend of the Applicant), who submitted a letter of support for the Applicant (Exhibit A4).
ISSUES
Legislation regarding the revocation of the mandatory cancellation of visas is found in s501CA(4) of the Migration Act, which provides:
“(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.”
As previously outlined in these reasons, the Applicant made representations to the Respondent as required by s501CA(4)(a) of the Migration Act[9].
[9] Exhibit G1, G2, pages 72 to 96.
The issue before the Tribunal is whether the discretion to revoke the mandatory cancellation of the Applicant’s Visa may be exercised. The Tribunal refers to the Full Court of the Federal Court of Australia’s observations in the Minister for Home Affairs v Buadromo[10]:
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[11].
[Tribunal underline for emphasis]
[10] [2018] FCAFC 151.
[11] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
Therefore, there are two issues for consideration before the Tribunal which must be decided:
(i)whether the Applicant passes the character test; and
(ii)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant were to succeed on either ground, the Tribunal must find that the cancellation of the Applicant’s visa must be revoked[12].
[12] Ibid.
Does the Applicant pass the character test?
As previously referred to in these reasons, the character test is defined in s501(6) of the Migration Act. A person will not pass the character test if they have a “substantial criminal record” as per s501(6)(a) of the Migration Act. Relevantly, s501(7)(c) of the Migration Act provides that a person is considered to have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Tribunal has previously referred to one of the final convictions of the Applicant, for which he received a sentence to a term of imprisonment of 12 months for the unlawful possession of a category D/H/R weapon, served concurrently alongside multiple other offences in this sentencing episode[13].
[13] Exhibit G1, G2, page 32.
Based on this conviction, the Tribunal is satisfied that the Applicant does not pass the character test as a result of having been sentenced to a term of imprisonment of 12 months or more on 3 March 2020.
The Tribunal is of the view that the Applicant is therefore unable to rely on s501CA(4)(b)(i) of the Migration Act for the mandatory cancellation of his visa to be revoked.
Is there another reason why the cancellation of the Applicant’s Visa should be revoked?
In considering whether to exercise the discretion in accordance with s501CA(4)(b)(ii) of the Migration Act, the Tribunal is bound by s499(2A) of the Migration Act and must comply with directions made under the Migration Act.
In view of this, Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (here in referred to as the “Direction”) must be applied[14]. The Direction outlines a framework for decision makers with respect to exercising discretion in accordance with s501CA of the Migration Act, it provides:
“(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked”[15].
[Tribunal emphasis]
[14] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
[15] The Direction, sub-paragraph 7(1)(b).
Paragraph 8(1) of the Direction provides that decision makers must take into account the Primary and Other Considerations relevant to the individual case.
Paragraph 8(4) of the Direction provides that, “Primary considerations should generally be given greater weight than the other considerations”; additionally, paragraph 8(5) of the Direction provides that, “One or more primary considerations may outweigh other primary considerations”.
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13(2) of the Direction provides that the three Primary Considerations the Tribunal must consider are:
a)Protection of the Australian community from criminal or other serious conduct (herein referred to as “Primary Consideration A”);
b)The best interests of minor children in Australia (herein referred to as “Primary Consideration B”); and
c)Expectations of the Australian community (herein referred to as “Primary Consideration C”).
The Other Considerations which must be taken into account are listed in paragraph 14 of the Direction. These considerations are:
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims; and
e)Extent of impediments if removed.
A number of principles are set out in paragraph 6.3 of the Direction which further guide decision makers in the exercise of their discretion, which the Tribunal has transposed:
1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
The Tribunal will now address the three Primary Considerations.
Primary Consideration A – Protection of the Australian community
In considering Primary Consideration A, paragraph 13.1(1) of the Direction, requires decision makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.
Paragraph 13.1(1) of the Direction provides that Australians confer on non-citizens expectations that:
(i)they are and have been law abiding;
(ii)that they will respect important institutions; and
(iii)that they will not cause or threaten harm to individuals or the Australian community.
When decisions makers are deciding whether the mandatory cancellation of an Applicant’s Visa serves to protect the Australian community, paragraph 13.1(1) of the Direction provides that the mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principles, and that remaining in Australia is a privilege conferred on non-citizens in this country.
Paragraph 13.1(2) of the Direction requires decision makers to give consideration to the following requirements when determining the weight to be applied to Primary Consideration A:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
In making these assessments, it is necessary to have regard to the Applicant’s criminal history. The Tribunal has had reference to the submissions of the Applicant to the Respondent. Additionally, the Applicant’s criminal offending history can also be gleaned from the s501 G-Documents[16], and annexures to the Respondent’s Statement of Facts Issues and Contentions[17], comprising:
[16] Exhibit G1.
[17] Exhibit R1, Annexures A, B and C, pages 1 to 2045.
(a)The Applicant’s criminal history which appears in a document entitled, “Nationally Coordinated History Check Results” dated 21 April 2020[18];
[18] Exhibit G1, G2, pages 31 to 36.
(b)The Applicant’s criminal history from their time in New Zealand, in a document dated 13 January 2021[19];
[19] Exhibit G1, G2, page 37.
(c)Convictions, Sentences and Appeals Report dated 23 August 2018[20];
[20] Exhibit G1, G8, pages 112 to 113.
(d)Transcript of proceedings in the District Court of Queensland at Southport dated 1 April 2020[21];
[21] Exhibit G1, G2, pages 38 and 39.
(e)Transcript of proceedings in the Southport Magistrates Court dated 3 March 2020[22];
(f)Verdict and Judgement Record issued by the Southport Magistrates Court dated 3 March 2020[23];
(g)Sentence calculation details report issued by Queensland Corrective Services dated 6 April 2020[24];
(h)Immigration and Prisoner Conduct Report dated 10 December 2020[25];
(i)International movement records of the Applicant from the Department of Home Affairs[26];
(j)Various incoming passenger cards of the Applicant[27];
(k)Materials produced by the Queensland Police Service[28];
(l)Materials produced by the Magistrates Court[29]; and
(m)Materials produced by Queensland Corrective Services[30].
[22] Exhibit G1, G2, pages 40 and 41.
[23] Exhibit G1, G2, pages 44 and 45.
[24] Exhibit G1, G2, pages 46 to 48.
[25] Exhibit G1, G2, pages 49 and 50.
[26] Exhibit G1, G2, pages 51 and 52.
[27] Exhibit G1, G2, pages 53 to 56.
[28] Exhibit R1, Annexure A, pages 1 to 213.
[29] Exhibit R1, Annexure B, pages 214 to 693.
[30] Exhibit R1, Annexure C, pages 694 to 2045.
Overview of the Applicant’s criminal offending history
Before considering paragraphs 13.1, 13.1.1, and 13.1.2 as they apply to Primary Consideration A of the Direction, the Tribunal will first provide an overview of the Applicant’s criminal offending history.
The Applicant has a criminal offending history in both New Zealand and Australia. The Tribunal has set out the Applicant’s criminal offending history in the following table:
Date of Offence Date of Court Appearance Offence (unless otherwise stated, taken to have occurred in Australia) Result (unless otherwise stated, dealt with by a Court in Australia) Reference 19 June 2002 04 July 2002 The Applicant was convicted of an assault against a police officer. No conviction recorded, fined $120.00. Exhibit G1, G2, page 36. 27 October 2002 21 November 2002 The Applicant was convicted of male assaults female in New Zealand. The Applicant appeared before a Court in New Zealand and was convicted and ordered to pay $300.00 in reparation. Exhibit G1, G2, page 37. 21 December 2003 11 February 2004 The Applicant was convicted of a breach of order against a Domestic and Family Violence Protection Order served on the Applicant. The Applicant was convicted and fined $350.00. Exhibit G1, G2, page 36. 01 June 2004 03 June 2004 The Applicant was convicted of a breach of order against a Domestic and Family Violence Protection Order served on the Applicant. The Applicant was convicted and fined $500.00. Exhibit G1, G2, page 36. 29 October 2004 01 February 2005 The Applicant was convicted of a common assault in New Zealand. The Applicant appeared before a Court in New Zealand and was convicted and sentenced "to come up for sentence if called upon" within one year. Exhibit G1, G2, page 37. 25 March 2005 10 May 2005 The Applicant was convicted of wilful damage in New Zealand. The Applicant appeared before a Court in New Zealand and was convicted and fined $250.00 and ordered to pay court costs of $130.00 and reparation of $162.64. Exhibit G1, G2, page 37. 08 September 2007 20 September 2007 The Applicant was convicted of public nuisance. No conviction was recorded, and the Applicant was fined $300.00. Exhibit G1, G2, page 36. 17 June 2011 28 June 2012 The Applicant was convicted of a breach of order served on the Applicant. The Applicant was convicted of this offence and sentenced to probation for two years. Exhibit G1, G2, page 35. 03 July 2011 28 June 2012 The Applicant was convicted of a breach of order served on the Applicant. The Applicant was convicted of this offence and sentenced to probation for two years. Exhibit G1, G2, page 35, 36. 01 March 2012 28 June 2012 The Applicant was convicted of a breach of order served on the Applicant. The Applicant was convicted of this offence and sentenced to probation for two years. Exhibit G1, G2, page 36. 01 March 2012 28 June 2012 The Applicant was convicted of a breach of bail condition. The Applicant was convicted of this offence and sentenced to probation for two years. Exhibit G1, G2, page 36. 21 June 2013 01 July 2013 The Applicant was convicted of failing to appear in accordance with an undertaking. The Applicant was convicted and fined $200.00. Exhibit G1, G2, page 35. 30 June 2013 01 July 2013 The Applicant was convicted of contravening a direction or requirement. The Applicant was convicted without further punishment. Exhibit G1, G2, page 35. 05 November 2013 11 November 2013 The Applicant was convicted of failing to appear in accordance with an undertaking. The Applicant was convicted without further punishment. Exhibit G1, G2, page 35. 08 May 2014 The Applicant was convicted of breaching a probation order (imposed for breaching three orders). The Applicant received a conviction recorded for each count and was fined $400.00. Exhibit G1, G2, page 35. 11 July 2014 11 August 2014 The Applicant was convicted of breaching a bail condition. The Applicant was convicted and fined $350.00. Exhibit G1, G2, page 35. 04 August 2014 11 August 2014 The Applicant was convicted of failing to appear in accordance with an undertaking. The Applicant was convicted and fined $500.00. Exhibit G1, G2, page 35. 08 October 2014 10 October 2014 The Applicant was convicted of breaching a bail condition. The Applicant was convicted and fined $400.00. Exhibit G1, G2, page 35. 27 October 2014 05 November 2014 The Applicant was convicted of breaching a bail condition. The Applicant was convicted without further penalty. Exhibit G1, G2, page 35. 28 November 2014 17 December 2014 The Applicant was convicted of being found in the unlawful possession of suspected stolen property. The Applicant was convicted and fined $500.00. Exhibit G1, G2, page 35. 11 February 2015 27 February 2015 The Applicant was convicted of possessing utensils or pipes that had been used. The Applicant was convicted without further punishment. Exhibit G1, G2, page 34. 22 - 25 February 2015 25 February 2015 The Applicant was convicted of receiving tainted property. The Applicant was ordered to undertake 80 hours of community service. Exhibit G1, G2, page 35. On or about 25 February 2015 25 February 2015 The Applicant was convicted of possesses utensils or pipes that had been used. The Applicant was ordered to undertake 80 hours of community service. Exhibit G1, G2, page 35. 25 February 2015 25 February 2015 The Applicant was convicted of operating a vehicle during number plate confiscation period. The Applicant was convicted and fined $800.00. Exhibit G1, G2, page 34. 01 April 2015 02 October 2015 The Applicant was convicted of breaching his community based orders (probation and CSO). The Applicant was convicted and fined $300.00. Exhibit G1, G2, page 34. 15 May 2015 02 October 2015 The Applicant was convicted of one count of possessing dangerous drugs as well as one count of possessing utensils or pipes etc for use of dangerous drugs. The Applicant was fined $700.00 on all charges at this appearance. Exhibit G1, G2, page 34. 09 June 2015 02 October 2015 The Applicant was convicted of one count of possessing utensils or pipes etc for the use and one count of possessing dangerous drugs. The Applicant was fined $700.00 on all charges at this appearance. Exhibit G1, G2, page 34. 09 June 2015 02 October 2015 The Applicant was convicted of one count for authority required to possess explosives. The Applicant was fined $700.00 on all charges at this appearance. Exhibit G1, G2, page 34. 08 March 2016 26 March 2019 The Applicant was convicted of supplying schedule 2 dangerous drugs. The Applicant had convictions recorded on two counts (at the same Court appearance) and the Applicant was sentenced to a term of imprisonment of 12 months, which was suspended for two years. Exhibit G1, G2, page 33. 01 July 2016 27 March 2019 The Applicant was convicted of possessing dangerous drugs schedule 1 drug quantity of or exceeding schedule 3 but less than schedule 4 per the Drugs Misuse Act (Qld). The Applicant was convicted and sentenced to a term of imprisonment of three months, suspended for two years, to be served concurrently. Exhibit G1, G2, page 33. 21 September 2016 23 December 2016 The Applicant was convicted of failing to appear in accordance with an undertaking. The Applicant was convicted of this offence and sentenced to two months imprisonment suspended for 18 months. Exhibit G1, G2, page 34. 23 October 2016 27 March 2019 The Applicant was convicted of unlawful possession of controlled drugs. The Applicant had a conviction recorded but was not further punished. Exhibit G1, G2, page 33. 27 October 2016 23 December 2016 The Applicant was convicted of unlawfully possessed property which was suspected of being stolen. The Applicant received no conviction recorded, and the Applicant was fined $500.00. Exhibit G1, G2, page 34. 31 October 2016 09 August 2018 The Applicant was convicted of breaching a condition of his bail. A conviction was recorded and the Applicant was not further punished. Exhibit G1, G2, page 34. 04 November 2016 23 December 2016 The Applicant was convicted of failing to appear in accordance with an undertaking. The Applicant is convicted of this offence and was sentenced to two months' imprisonment, to be suspended for 18 months. Exhibit G1, G2, page 34. 12 to 22 December 2016 26 March 2019 The Applicant was convicted of five counts of supplying schedule 1 dangerous drugs. The Applicant had convictions recorded on all counts and the Applicant was sentenced to a term of imprisonment of 12 months, which was suspended for two years. Exhibit G1, G2, page 33. 14 December 2016 26 March 2019 The Applicant was convicted of supplying schedule 2 dangerous drugs. The Applicant had convictions recorded on two counts (at the same Court appearance) and the Applicant was sentenced to a term of imprisonment of 12 months, which was suspended for two years. Exhibit G1, G2, page 33. 17 December 2016 27 March 2019 The Applicant was convicted of contravening a direction or requirement. The Applicant had a conviction recorded but was not further punished. Exhibit G1, G2, page 33. 22 December 2016 26 March 2019 The Applicant was convicted of one count of possessing dangerous drugs. The Applicant had a conviction recorded but was not further punished. Exhibit G1, G2, page 33. 22 December 2016 26 March 2019 The Applicant was convicted of possessing property suspected of being the proceeds of an offence under the Drugs Misuse Act (Qld). The Applicant had a conviction recorded but was not further punished. Exhibit G1, G2, page 33. 22 December 2016 26 March 2019 The Applicant was convicted of possessing anything used in the commission of a crime defined in Part 2 of the Drugs Misuse Act (Qld). The Applicant had a conviction recorded but was not further punished. Exhibit G1, G2, page 33. 22 December 2016 26 March 2019 The Applicant was convicted of contravening a direction or requirement. The Applicant had a conviction recorded but was not further punished. Exhibit G1, G2, page 33. 11 January 2017 09 August 2018 The Applicant was convicted of breaching a condition of his bail. The Applicant had a conviction recorded but was not further punished. Exhibit G1, G2, page 34. 18 January 2017 09 August 2018 The Applicant was convicted of breaching a condition of his bail. The Applicant had a conviction recorded but was not further punished. Exhibit G1, G2, page 34. 19 January 2017 09 August 2018 The Applicant was convicted of failing to appear in accordance with an undertaking. The Applicant was convicted of this offence and those of 31 October 2016, 11 January 2017, and 18 January 2017, with his previously suspended sentence being fully invoked. The Applicant was also sentenced to an additional three months of imprisonment to be served concurrently with his other custodial terms. Exhibit G1, G2, page 33, 34. 27 August 2017 29 August 2017 The Applicant was convicted of one count of resist police and one count of assault police (manual) in New Zealand. On all counts, the Applicant was convicted and sentenced to six months' supervision with special conditions. Exhibit G1, G2, page 37. 30 November 2018 15 January 2019 The Applicant was convicted of breaching a condition of his bail. The Applicant was convicted and fined $100.00. Exhibit G1, G2, page 33. 19 December 2018 27 March 2019 The Applicant was convicted of failing to appear in accordance with an undertaking. The Applicant received a conviction recorded and sentence of imprisonment for one month, suspended for two years, to be served cumulatively. Exhibit G1, G2, page 32. 21 December 2018 27 March 2019 The Applicant was convicted of breach of bail. The Applicant received a conviction recorded and sentence of imprisonment for one month, suspended for two years, to be served concurrently. Exhibit G1, G2, page 32. 30 December 2018 27 March 2019 The Applicant was convicted of possess by night instrument of house breaking. The Applicant was convicted and sentenced to a term of imprisonment of three months, suspended for two years, to be served concurrently. Exhibit G1, G2, page 33. 30 December 2018 27 March 2019 The Applicant was convicted of two counts of possessing dangerous drugs. The Applicant was convicted and sentenced to a term of imprisonment of three months, suspended for two years, to be served concurrently. Exhibit G1, G2, page 33. 27 March 2019 30 October 2019 The Applicant was convicted of three counts of breaching orders imposed. The Applicant's suspended sentence was fully invoked, and the Applicant's parole release date was 30 October 2019. Exhibit G1, G2, page 32. 20 May 2019 30 October 2019 The Applicant was convicted of one count of possessing a knife in a public place and one count of receiving tainted property. The Applicant was convicted of both offences but did not receive further punishment. Exhibit G1, G2, page 32. 18 June 2019 30 October 2019 The Applicant was convicted of unlawfully possessed suspected stolen property. A conviction was recorded and the Applicant received 18 months probation. Additionally, the Applicant was disqualified from holding a Motor Driver's Licence for two months, three months and one month. Exhibit G1, G2, page 32. 03 January 2020 03 March 2020 The Applicant was convicted of possessing by night an instrument of house breaking, unlawful possession of weapons category D/H/R weapon, possession of a knife in a public place, possess utensils or pipes etc that had been used possessing dangerous drugs and attempted unlawful use of a motor vehicles aircraft or vessels. The Applicant was convicted of all offences. The Applicant received a term of imprisonment of: one month for possessing a night instrument of house breaking; 12 months for possessing a category D/H/R weapon (an air pistol); one month for possessing a knife in a public place; one month for possessing dangerous drugs; and six months for attempted unlawful use of a motor vehicle. All sentences of imprisonment to be served concurrently. Exhibit G1, G2, page 31, 32.
In the Tribunal’s mind the evidence of the Applicant at the hearing can largely be summarised as either (1) offering an alternate version of events; (2) denying aspects of the reported facts of the offending; and/or (3) not recalling facts relating to convictions. With respect to the Applicant bringing into question the underlying facts of their prior convictions, the Tribunal observes that this issue has been dealt with on a number of occasions by judicial officers.
The Tribunal refers to the Full Federal Court’s decision of HZCP v Minister for Immigration and Border Protection[31] (herein referred to as “HZCP”), where His Honour McKerracher J stated at paragraph 77:
““77. As a matter of policy, it would be highly undesirable if the Minister or the Tribunal exercising a decision-making power that is founded on an earlier decision of a criminal court could, in effect, challenge the propriety or correctness of that decision, or reopen findings on which the decision was necessarily based. To make a finding of “another reason” on facts necessarily inconsistent with the conviction and sentence would be an incongruous outcome. It has long been recognised that the adjudgment and punishment of criminal guilt is an exclusively judicial function: Waterside Workers’ Federation of Australia v J W Alexander Ltd [1918] HCA 56; (1918) 25 CLR 434 per Griffiths CJ (at 444); Federal Commissioner of Taxation v Munro [1926] HCA 58; (1926) 38 CLR 153 per Isaacs J (at 175); Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 per Mason CJ (at 258); Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 per Brennan, Deane and Dawson JJ (at 27) and Re Woolley; Ex parte Applicants M276/2003 (by their next friend GS) (2004) 225 CLR 1 per McHugh J (at [53]).The adjudgment of guilt, and the determination of the punishment to be imposed as a consequence (including a sentence of imprisonment), fall within the central conception of judicial power. It is inconsistent with this principle at the heart of the separation of powers to suggest that an administrative decision-maker could come to a factual conclusion contrary to that of a court when making an adjudgment and punishment of criminal guilt which is, in turn, the precondition to that administrative decision-maker’s power.”
[Tribunal underline for emphasis]
[31] [2019] FCAFC 202.
The Tribunal further refers to the reasons of their Honour Colvin J in HZCP[32] with respect to administrative tribunal’s views on facts underlying criminal convictions[33]:
“The defence of criminal proceedings is a matter in which the accused person may be expected to have taken considerable interest. The prosecution must discharge a high burden of proof according to formal rules of evidence and by means of a procedure that is keenly attuned to ensuring a fair process for the accused. For those reasons, where before an administrative decision-maker reliance is placed upon the fact of a conviction or a sentence, great weight is to be afforded the factual findings that necessarily underpin the conviction or sentence especially where it is the criminal defendant who is inviting an administrative tribunal to reach a different view as to the facts...”
[Tribunal underline for emphasis]
[32] [2019] FCAFC 202.
[33] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 (at 165 [189]).
The Tribunal does not regard the Applicant as having discharged the substantial onus of challenging the facts of the convictions against him. The Tribunal gives significant weight to the Court’s consideration of the facts of the offences, and to the seriousness with which their Honours have regarded the offending of the Applicant.
The Tribunal will outline some of the Applicant’s more serious criminal offending incidents, but before doing so, will also provide a brief history of the Applicant’s personal relationships as this is relevant to the Applicant’s offending with respect to domestic violence.
The Applicant has been the named person in Protection Orders seeking to protect his former partner (whom the Tribunal will refer to as Ms B) and the Applicant’s two children whom he shares with Ms B, Child 1 (currently 19 years of age), and Child 2 (currently 17 years of age). Additionally, the Protection Orders also listed the new partner of Ms B.
The Applicant stated that he had commenced a relationship with Ms B in 2001, with Child 1 born in 2002, and Child 2 born in 2003, noting that the Applicant states he and Ms B separated in March 2009[34]. In the Applicant’s own words, he stated that the relationship “wasn’t good” and that they fought a lot and had a lot of differences[35].
July 2011
[34] Exhibit G1, G2, page 77.
[35] Transcript 15 March 2021, page 13, lines 16 to 41.
Queensland Police Court Brief describes the following events which lead to the Applicant’s conviction regarding a breach of the Domestic and Family Violence Protection Order which was in place before a Magistrate’s Court in Queensland on 28 June 2012. The Tribunal refers to the Queensland Police Court Brief which states[36]:
[36] Exhibit G1, G2, page 35; and Exhibit R1, Annexure A, page 20.
“The order is in place until the 23rd August 2011. The defendant was not present in court when granted and the defendant was served with a copy of the full order on 21st May 2011 by Senior Constable [name redacted] of [location redacted] Police Station. The conditions on the order were fully explained to the defendant and the defendant signed page 3 of the order understanding of conditions.
The respondent has breached conditions 2, 3 & 4.
On the evening of the 2nd July 2011 the aggrieved was at her home address in the company of her sister and a group of other friends socialising. The respondent contacted the aggrieved several times on her mobile phone requesting to speak with their children. After a brief argument over the phone the aggrieved turned her phone onto silent and refused to answer any further calls from him. At this point the respondent proceeded to call the aggrieves sister (the victim in charge #2) on her phone in an attempt to speak with the aggrieved. Her sister took the same stance, ignored calls and placed her phone on silent.
At about 1:00am on the 3rd July 2011 the respondent attended the aggrieves home address and told the aggrieved he was taking their children away with him. A verbal argument took place over the aggrieves perceived intoxication level of the respondent and the aggrieved attempted to stop him by physically grabbing him around the shoulders. He responded to her actions by forcing her away and across the room. This resulted in her falling down, striking her head on a cupboard.
The respondent then woke their two young children aged 8 & 9 and started to walk them outside and down to his vehicle parked on the street outside the address.
The aggrieves’ sister attempted to intervene and stop the respondent adn as a result of her actions was run over by the respondant in his vehicle and suffered fractures to her foot. (This offence is detailed in the linked QP9 relating to the victim [name redacted].
On the 19th August 2011 the respondent was intercepted at a routine RBT checkpoint in [location redacted]. Checks were conducted which found he was wanted for questioning in relation to this incident. The respondent voluntarily accompanied police to [location redacted] Station and after seeking legal advice declined to partake in an EROI in relation to the aforementioned DV Breach and Dangerous Operation allegations..”
[sic]
[Tribunal redactions]
When the events of this offending were put to the Applicant, the Applicant sought to recast the events, the Tribunal refers to the following exchange[37]:
[37] Transcript 15 March 2021, page 15, lines 8 to 32.
“Respondent: So you agree that you were breaching the order, but your version of events is you weren’t drunk, you got there and you were attacked by [redacted, Ms B] and her sister. Is that right? And that they smashed your car?
Applicant: One hundred percent, that’s correct.
Respondent: Do you know why it doesn’t say this is any of the police facts anywhere. This is the first time I’m hearing this explanation?
Applicant: I don’t know why it’s not in the facts. When I read it (indistinct) I don’t know why it doesn’t have any of my version of what I told the police.
Respondent: [Name redacted, MWCW], it says at the bottom of page 20, ‘the respondent’, which was yourself,
voluntarily accompanied police to [redacted location] Station and after seeking legal advice declined to partake in an EROI in relation to the breach.
That says you didn’t have an interview with the police where you said your version of the facts?
Applicant: I’m not - I must have mentioned it in court then. I don’t know.
Respondent: You accept that you were guilty of breaching the family violence order but you don’t accept that you assaulted [redacted, Ms B] - you did assault her sister by running over her foot but that wasn’t on purpose.
Applicant: Is that right?---Yes, that correct.”
[Tribunal redactions]
July 2013
A Queensland Police Court Brief outlines a further incident of domestic violence between the Applicant and his former partner Ms B, which occurred in July 2013. The Tribunal acknowledges that although the Applicant was charged with the contravention of a domestic violence order, no conviction was recorded in their criminal history. The Tribunal refers to the Queensland Police Court Brief which states[38]:
[38] Exhibit R1, Annexure A, page 49.
“The Defendant is named as the Respondent in a current Domestic Violence Protection Order that was issued by the [location redacted] Magistrates Court on the 3rd of October 2011. The Protection Order continues to be enforceable until expiry on the 2nd of October 2013.
The Protection Order nominates the Aggrieved as [name redacted] and comprises Mandatory conditions plus five conditions including Condition 4 wherein the respondent is prohibited from having or attempting to have any contact with the aggrieved, directly or indirectly (including by mail, telephone, mobile phone, facsimile, internet).
At around 4:20pm on Monday the 29th day of July 2013, the defendant contacted the aggrieved on her mobile phone [phone number redacted] from his mobile phone [phone number redacted].
The aggrieved answered and had a short conversation with the defendant. During the conversation the defendant became angry about not being able to speak with his children and as a result told the aggrieved “Fuck you bitch, I am going to kill you, I’m going to come to your house, kill you and you’re partner and chop you’re heads off”.
The aggrieved immediately hung up, locked all the doors and called police as she felt scared and intimidated.
Later that day the aggrieved provided a statement in police.
At approximately 00:21am on Saturday the 5th day of October 2013 the defendant was located in relation to another matter. Checks revealed he was currently wanted for questioning re this matter. He refused to participate in an electronic recorded of interview.
The Defendant was subsequently charged with a Breach of Protection Order, to appear in the [location redacted] Magistrates Court on 5th day of October 2013.”
[Tribunal redactions]
The contents of the Queensland Police Court Brief were put to the Applicant in the hearing, and the Tribunal refers to the following exchange[39]:
[39] Transcript 15 March 2021, page 16, lines 21 to 33.
“Respondent: MWCW, can you turn to page 49 of the material please. This is two years later, this is July 2013. Once again, you were prohibited from contacting [redacted, Ms B] due to (indistinct) at around 4.20pm on 29 July 2013. You contacted her on her mobile phone and became very angry with her and I’m going to read out her summary of the conversation you had with her,
“You had a short conversation with the defendant. During the conversation the defendant became angry about not being able to speak with his children and as a result told the aggrieved “fuck you bitch, I’m going to kill you. I’m going to come to your house, kill you and your partner and chop your heads off.”
MWCW, did you say this?
Applicant: Yes, that’s correct. I did say that.”
[Tribunal redactions]
The Applicant then proceeded to give the Tribunal an alternate version of events at the time of this incident. The Tribunal refers to the following exchange when the Applicant’s events were summarised back to him by the Respondent[40]:
“Respondent: Okay, so because you think she lied to the police, you called her and threated to kill her and her partner, is that right?
Applicant: Not because I think, was because I know that’s what happened, yes.
Respondent: Right. So you were - - -?
Applicant: Because I know she made accusations against me and I lost my - and my kids got taken away from me. Because it doesn’t just affected me, it affected my kids too. And you know, this kind of thing went on years. And I just, yes, just did my head in. And yes, I did text that to her.”
June 2015
[40] Transcript 15 March 2021, page 17, lines 24 to 31.
A Queensland Police Court Brief refers to an offending episode of the Applicant involving the possession of dangerous drugs, explosives and possessing drug utensils which occurred in June 2015, following police attending a property with a search warrant where the Applicant resided. During the search of the Applicant’s property, police found two grams of methylamphetamine crystals in several clip seal bags, a white plastic electric grinder used to prepare cannabis, and 350 rounds of bullets (7 boxes of 50 0.22 calibre rounds), hidden under a mattress and bed[41]. The facts of this offending were put to the Applicant, and the Tribunal refers to the following exchange under cross-examination[42]:
[41] Exhibit R1, Annexure A, page 109.
[42] Transcript 15 March 2021, page 31, lines 7 to 47; page 32, lines 1 to 6.
“Respondent: The other people in the flat denied any knowledge of anything in the unit. When they question you, you denied the meth. You said you didn’t know it was there. You’re not sure who it belonged to. You agreed that you’d been smoking cannabis. And then, you agreed to knowing the ammunition was under the mattress. And your explanation was you located the rounds of ammunition buried in the garden of your unit complex. Do you stand by that explanation?
Applicant: ‑‑‑Yes, because that’s the truth.
Respondent: Right. So how did you discover these ‑ how did you discover the bullets?
Applicant: ‑‑‑Well, I saw the tinfoil on the ground and I thought it was weed wrapped in foil. And it was those bullets so I grabbed them.
Respondent: Okay. So were they buried under the ground, or were they just sitting on the ground?
Applicant: ‑‑‑No, half of it was in the dirt and have was exposed.
Respondent: Okay. So you saw some of the foil, it looked like weed and you dug it up?
Applicant: ‑‑‑(Indistinct) in the garden. It was between ‑ there was a hole in the fence where people walked through. Sort of like an empty block ‑ unit blocks. And it was on the ground between the hole in the fence. (Indistinct) ‑ ‑ ‑
Respondent: So it wasn’t ‑ you didn’t know about the ammunition till you saw it yourself?
Applicant: ‑‑‑Yes, that’s right.
Respondent: So why did you take it and put it under your bed? Like, why did you hold onto it then?
Applicant: ‑‑‑Just dumb. Just stupid.
Respondent: What were you going to do with it?
Applicant: ‑‑‑I had no intention of doing anything with it. I put it in my room and forgot all about it, that it was there.
Respondent: Okay. So do you stand by all your answers? So you didn’t know the meth was in your house and you found the rounds in the garden, in your unit complex. That’s all correct?
Applicant: ‑‑‑Yes, that’s correct.
Respondent: Okay. It is a strange coincidence though, isn’t it? Like, you’ve given evidence that you were using drugs heavily during that time. You have convictions which you deny for supplying drugs. And then, you’re saying you didn’t know the meth was in your house. And you’re saying you happened to find these bullets in a shared passage by your house. Like, it’s ‑ ‑ ‑?
Applicant: ‑‑‑I ended up finding out that someone else had put it under there, because they saw the cops coming. I didn’t know that the meth was in there. The one in my room, yes, that was mine. But the one that was found on the balcony, that wasn’t mine. But I got charged.
Respondent: Okay. So you have no idea who the bullets belonged to?
Applicant: ‑‑‑I’ve got a fair idea, but I don’t, you know, I just took the charge.”
The Applicant appeared before a Magistrates Court in October 2015 and was convicted of possessing dangerous drugs, possessing utensils or pipes etc that had been used and authority required to possess explosives; for which the Applicant received a $700 fine (in addition to three further convictions for other offences at this appearance).
December 2016
A Queensland Police Court brief refers to an offending episode of the Applicant which led to multiple charges and convictions arising from police intercepting a car the Applicant was a passenger in. At the time the Applicant was intercepted by police there was a warrant out for his arrest in relation to the Applicant failing to attend a Magistrate Court for breach of bail. When questioned by police at the time as to his identity, the Applicant had initially given a false name and later admitted that he had done this in order to avoid arrest. The Tribunal refers to the Queensland Police Court Brief which describes this offending episode as follows[43]:
[43] Exhibit R1, Annexure B, pages 128 to 130.
“At approximately 6:20pm on the 22nd of December 2016 the defendant was intercepted by police in a white Ford Laser, Queensland registration [redacted] on the [location redacted]. The defendant was a passenger in the vehicle. During the interception the driver of the vehicle made admissions to drug use and returned a positive indication to a roadside drug test. Police detained the occupants of the vehicle and went to conduct a search of the vehicle.
As the defendant went to move out of the seat police observed the defendant was clutching something in his right hand. Police asked what the defendant had in his right hand and upon opening it police observed a small clip seal bag which contained a clear rock-like-crystal. The defendant was given his rights and cautions in accordance with the PPRA.
During questioning the defendant about being in possession of a dangerous drug the defendant stated he was on his way to supply the said drug to a male named [name redacted]. The defendant stated he did not know [name redacted] last name but was going to meet him at the bus station in [location redacted].
Police seized a mobile phone within the vehicle the defendant was located in. Police believed it belonged to the defendant and upon obtaining admissions in regards to possession and supply of dangerous drugs looked through the mobile in regards to any further evidence. Police observed text messages to a male named [ name redacted].
On the 12th December 2016 the defendant supplied [name redacted] with one to two points of methyl amphetamine. Police are aware the current street price for one point of methyl amphetamine is $50. Police allege the defendant supplied [name redacted] with up to $100 of methyl amphetamine on the 12th of December 2016. On the 22nd of December 2016 police observed further text messages to [name redacted] where the defendant again supplied with $100 of methyl amphetamine. The defendant made arrangements for [ name redacted] to attend the [location redacted] to be supplied the methyl amphetamine.
Police located $535 in Australian currency on the defendant.
Police allege the money is the proceeds of supplying dangerous drugs due to the drugs located on the defendant and the admissions made by the defendant he was on his way to supply the said drug in addition to text messages on the defendants phone showing he was supplying dangerous drugs earlier that day and also at other times in the month of December.
The defendant was arrested for this and other matters and transported to [location redacted] Watch-house. The defendant was held in custody to appear before [location redacted] Magistrates Court on the 23rd of December 2016.”
[Tribunal redactions]
A statement of facts before the Court is within the evidence before the Tribunal which further outlines text messages recovered from the Applicant’s phone, which refer to the supply of prohibited and dangerous drugs to individuals[44]. When the facts of the offending were put to the Applicant during cross-examination, the Applicant sought to deny that he was involved in trafficking prohibited and dangerous drugs[45]:
[44] Exhibit R1, Annexure B, pages 480 and 481.
[45] Transcript 15 March 2021, page 26, lines 25 to 46; page 27, lines 1 to 19.
“Respondent: I do have the text messages here, [name redacted, MWCW]. I’m going to turn to them now. This is page 480 of annexure B. [name redacted, MWCW], on the second paragraph at the bottom it says:
The defendant later told police that he was on his way to give the methamphetamine to a person named Nicky at the bus station.
Then later on in the paragraphs 1 to 7 it’s a summary of the text messages. The first one, it looks like you’re dealing drugs to someone named [name redacted]. On the second line to [name redacted] you’re dealing cannabis. On the third line 0.2 grams of meth again to [name redacted]. The fourth one, [name redacted], cannabis. The fifth one, 1.75 grams of meth to [name redacted]. The sixth one, 1.7 grams of meth to [name redacted]. The seventh one is 0.2 grams of meth to [name redacted]. So, [name redacted, MWCW], are you really saying that you never supplied drugs and these weren’t your messages?
Applicant: ‑‑‑It was on my phone, yes, but I was – it wasn’t just me using my phone. I let other people use it back at that day, at that time. But I took the charges and got punished for it.
Respondent: When you told the police you were on your way to give meth to a person named [name redacted] at a bus station, you were lying then? You weren’t supplying drugs?
Applicant: ‑‑‑I wasn’t going to a bus station at all.
Respondent: You were just driving around with meth on you, just for your own personal use?
Applicant: ‑‑‑Yes, it was (indistinct).
Respondent: Why did you tell that to the police, then? Why did you take the rap for it?
Applicant: ‑‑‑I don’t know, I just did.
Respondent: [Name redacted, MWCW], when all this happened you were actually wanted on an arrest warrant at the time, so it’s not really a great look, is it, to be caught with meth on you when you’re out on an arrest warrant, is it?
Applicant: ‑‑‑No. I was – at that time I was, like, as far as I remember, I wanted to get away from the scene and it was – I thought that would have been my way out of being caught up with drug use and the people and environment that I was surrounded. I think I wanted to go to gaol or I wanted to get away.
Respondent: If you wanted to get away why were you driving around with meth on you and with money on you and with a phone on you that people used to text people to buy drugs? It seems like you’re in it for the money at this point. You had the cash on you, you’re on your way to deliver drugs. That’s what it looks like. That’s what you said you were doing?
Applicant: ‑‑‑Yes.”
[Tribunal redactions]
The Applicant was convicted and sentenced for the following offences before a District Court in March 2019[46]:
(i)two counts of supplying schedule two dangerous drugs, for which the Applicant received a conviction and was sentenced to a term of imprisonment of 12 months, suspended for two years;
(ii)five counts of supplying schedule one dangerous drugs, for which the Applicant received a conviction and was sentenced to a term of imprisonment of 12 months, suspended for two years;
(iii)one count of possessing dangerous drugs, for which the Applicant was convicted and not further punished;
(iv)one count of possessing property suspected of being the proceeds of an offence under the Drugs Misuse Act (Qld), for which the Applicant was convicted and not further punished;
(v)one count of possessing anything used in the commission of a crime defined in Part 2 of the Drugs Misuse Act (Qld), for which the Applicant was convicted and not further punished; and
(vi)one count of contravening a direction or requirement of the police, for which the Applicant was convicted and not further punished.
January 2019
[46] Exhibit G1, page 33.
A Queensland Police Court Brief states that on an evening in early January 2020, police were called to a house due to the reporting of suspicious persons in the area. The Brief states[47]:
[47] Exhibit R1, Annexure A, pages 210 and 211.
“At 10.04pm on the 3rd of January 2020, police arrived on [location redacted] and observed a male and a teenage girl by the intersection with [location redacted].
The male, later identified to be the defendant, was observed to be putting on a motorcycle helmet while standing next to a motorcycle. Police also noted that the defendant was wearing a black leather motorcycle jacket and had a pair of motorcycle gloves in his backpack.
Checks of the attached registration plate, [number plate redacted] revealed it belonged to another motorcycle. Police located the motorcycle’s VIN, and discovered it had been stolen from [location redacted] around the 12th of December 2019.
The defendant was subsequently arrested and conveyed to [location redacted] Police Station where he agreed to participate in an Electronic Record of Interview (ERI).
During the ERI, the defendant stated he had received the motorcycle from a friend. The defendant claimed he had not ridden the motorcycle but admitted he was about to before being intercepted by police. The defendant explained he intended to ride with his associate to a nearby service station to buy a lighter. The defendant also admitted he did not know who the owner of the motorcycle was and acknowledged it was probably stolen.
…
The defendant was provided his PPRA rights and cautions before being asked whether there was anything he wished to declare prior to the search.
The defendant advised he was in possession of a “pellet gun” and indicated to a black Calvin Klein satchel slung over his shoulder.
Police seized the satchel and located what appeared to be a handgun.
Closer examination found it to be a full metal WE Airsoft (gas propelled) ‘BB’ gun similar in appearance to a Beretta M9 pistol. The weapon was loaded with a magazine with 11 ball bearing rounds, however it was not gassed.
…
Inside a black Calvin Klein satchel which was slung over the defendant’s shoulder, police located a plastic bottle containing a small amount (approximately 5mL) of a clear liquid.
When asked about the liquid, the defendant stated it was “Frank”, the street name for GHB (fantasy).
…
Inside the defendant’s backpack, police located a Makita 18V angle grinder and two compatible lithium ion batteries.
In the same bag, police also located a Scream style face mask and a pair of latex gloves…”.
When the reported facts of this offending were put to the Applicant during cross-examination, the Applicant ultimately acknowledged that he had pleaded guilty to the offences[48]:
[48] Transcript 15 March 2021, page 34, lines 27 to 47; page 35, lines 1 to 47; and page 35, lines 1 to 3.
“Respondent: …You admitted that the bike belonged to another person and you acknowledged it was probably stolen. Then, they searched the bag you were carrying and they found a few items. I was hoping you could explain how you had these items. The first one is, you had an air pistol; how did you get that air pistol?
Applicant: ---It was in the bag.
Respondent: Who put it in the bag?
Applicant: ---It (indistinct) my bag, I had it on me. I turned up because there was a disturbance between the girl and her partner and he took - he went to the service station to get smokes. Just as he left, the cops turned up.
Respondent: It was his pistol in the bag?
Applicant: ---Yes.
Respondent: What about the angle grinder and the batteries?
Applicant: ---(Indistinct) I just took the rap for everything because cops turned up when I had it on me.
Respondent: (Indistinct) so on page 211 you said:
The defendant claimed he found the angle grinder, batteries and mask by some charity bins. He explained he thought he could sell the angle grinder for profit, saying, “I guess that means I stole it”.
Did you find it by the bins or was it (indistinct)?
Applicant: ---No, the angle grinders I got it outside that Salvos shop, yes. The (indistinct) I put it in the bag.
Respondent: You put it in the bag with the gun, right?
Applicant: ---Yes.
Respondent: Then, the next thing is, they found a vial of the drug, GHB. Can you explain how you had that?
Applicant: ---It was in the bag as well. Everything that’s on here in the bag.
Respondent: You said:
The defendant stated he had forcibly taken the GHB from an unnamed person in order to stop them from taking the drug.
Applicant: ---Yes, which was a girl, but I didn’t mention that.
Respondent: She was going to take GHB and you took it off her to protect her?
Applicant: ---I just took it off her.
Respondent: Then, there’s scissors with cannabis residue that are also just in the bag?
Applicant: ---Yes.
Respondent: Then, there’s a few other things. Senior Member, I just want to draw your attention to page 540. If you could keep page 211 open and then also look at page 540 to 543.
Senior Member: Yes.
Respondent: There’s also in the bag - that’s a photo of the gun. There’s two knives and then there’s a Scream mask as well. What’s your explanation for these?
Applicant: ---My?
Respondent: Like, with these items, or they were just in the bag?
Applicant: ---They were - everything was in the bag, everything that’s named in here was in the bag. (Indistinct).
Respondent: You’re saying you - - -?
Applicant: ---I put the bag on and I got touched for them.
Respondent: It’s just like a wrong place, wrong time kind of situation then?
Applicant: ---Yes, I was at the wrong place, wrong time. If I didn’t turn up we wouldn’t have - I wouldn’t have got charged with it then (indistinct) person that I knew that I’d gone to, got - he ended up getting up stabbed at [redacted – location] and he died.
SeniorMember: [Name redacted, MWCW], it’s the tribunal here. Would you mind going to page 509 of annexure (b) for me? Do you have it open?
Applicant: ---Yes.
SeniorMember: Notice on that page it states a plea date and what you pleaded at the time, to some of these offences? It says, “Pleaded guilty”?
Applicant: Okay, yes, yes. Yes.”
[Tribunal redactions]
The Applicant appeared before a Magistrates Court in March 2020 and was convicted of:
(i)attempted unlawful use of motor vehicles aircraft or vessels, for which he was sentenced to a term of imprisonment of six months to be served concurrently;
(ii)unlawful possession of weapons category D/H/R weapon, for which he was sentenced to a term of imprisonment of 12 months to be served concurrently;
(iii)possessing dangerous drugs, for which he was sentenced to a term of imprisonment of one month to be served concurrently;
(iv)possessing by night instrument of house breaking, for which he was sentenced to a term of imprisonment of one month to be served concurrently;
(v)possession of a knife in a public place or a school, for which he was sentenced to a term of imprisonment of one month to be served concurrently; and
(vi)possessing utensils or pipes etc that had been used, for which he was sentenced to a term of imprisonment of one month to be served concurrently.
Offences whilst in New Zealand
As previously outlined, the Tribunal has before it the criminal history of the Applicant whilst he was in New Zealand, with a report from New Zealand Police outlining the following offences of the Applicant[49]:
[49] Exhibit G1, G2, page 37.
Date of Offence Date of Court Appearance Offence Result 27 October 2002 27 November 2002 Male Assaults Female (Manually) Convicted and sentenced (reparation $300). 29 October 2004 1 February 2005 Common Assault (Crimes Act) Manually Convicted and sentenced, to come up for sentence if called upon 1/2/2005 for one year. 25 March 2005 10 May 2005 Wilful Damage Convicted and sentenced (fined $250, Court costs $130, and reparation $162.64). 27 August 2017 29 August 2017 Resist Police Convicted and sentenced, supervision order 29/8/2017, for six months, special conditions. 27 August 2017 29 August 2017 Assault Police (Manual) Convicted and sentenced, supervision order 29/8/2017, for six months, special conditions.
When the Applicant was questioned as to their offending in New Zealand with respect to the offences in 2017, the Applicant gave the following evidence during cross-examination[50]:
“Respondent: Do you know what happened for the New Zealand convictions?
Applicant: ---Well, what page is that on again?
Respondent: It’s in the G documents, it’s on page 37. Conviction in - - -?
Applicant: ---The one 2017, that - yes, I had mental health issues at that time and the officer - I can’t remember really what happened, but I remember getting thrown on the ground by the police and I’m not too sure on how I assaulted them but I think I was trying - maybe it was near - trying to resist the arrest or something. But that was just before I went to rehab. I got (indistinct) into mental hospital at that time.”
Traffic offences
[50] Transcript 15 March 2021, page 38, lines 23 to 33.
The Applicant’s summonsed traffic record from Queensland Police covering their traffic history in Australia, which spans 20 years from 2000 to 2020, is lengthy with pages of entries for many offences, which the Tribunal will summarise as follows[51]:
(i)Driving with blood alcohol exceeding the legal limit;
(ii)16 suspensions of the Applicant’s licence;
(iii)8 disqualifications of the Applicant’s licence;
(iv)10 counts of unlicensed driving; and
(v)Numerous speeding offences, including exceeding the speed limit by more than 40 kilometres per hour and at least 45 kilometres per hour.
[51] Exhibit R1, Annexure B, pages 525 to 530.
Additionally, the Applicant’s criminal history provided by the New Zealand police confirm traffic offences of the Applicant when he was in New Zealand, which included a conviction for a person under 20 exceeding blood alcohol limit, and careless or inconsiderate driving causing death or injury (on a road) which occurred in March 1997. The Applicant appeared before a Court in New Zealand in May 1997 and was convicted of both offences and was sentenced to[52]:
(i)nine months of supervision by community corrections and disqualified from driving for six months with respect to the offence of a person under 20 exceeding blood alcohol limit; and
(ii)nine months of supervision by community corrections and disqualified from driving for six months and sentenced to non-residential periodic detention for one month with respect to the offence of careless or inconsiderate driving causing death or injury (on a road).
[52] Exhibit G1, G2, page 37.
The Applicant was questioned as to their driving record during cross-examination, and the Tribunal refers to the following exchange[53]:
“Respondent: … My question to you is, have you ever undertaken any safe driving courses or drink-driving courses or anything like that?
Applicant: ---No.
Respondent: Why not?
Applicant: ---Don’t know.
Respondent: You don’t. Okay. Well, why should it so if you are successful, and if you’re released into the community, why should we believe you’ll be safe on the roads at all?
Applicant: Can’t really answer that. All I know is that I don’t want to go back to the same lifestyle that I used to live.”
[53] Transcript 15 March 2021, page 38, lines 41 to 45; and page 39, lines 1 to 4.
The nature and seriousness of the Applicant’s conduct to date
The Tribunal views the Applicant’s criminal offending very seriously. The Tribunal is of the view that this finding is consistent with the application of the following relevant sub-paragraphs in paragraph 13.1.1(1) of the Direction:
“a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b) The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c) The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f) The cumulative effect of repeated offending;
g) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;…”
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction stipulates that crimes of a violent and/or sexual nature are to be viewed very seriously. Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction further provides that crimes of a violent nature committed women or children are viewed very seriously, “regardless of the sentence imposed”.
The Tribunal is in no doubt that the Applicant’s offending has enlivened the application of sub‑paragraphs (a) and (b) of paragraph 13.1.1(1) of the Direction, such that the offending of the Applicant is indeed viewed very seriously.
There are examples of offending episodes throughout the summonsed material regarding the Applicant and violence, particularly in a domestic context. The Applicant has been the subject of multiple Protection Orders placed against him in order to protect victims of his offending, including that of his former spouse (Ms B), her partner and the two children the Applicant shares with Ms B, Child 1 and Child 2.
The Tribunal has in its earlier reasons referred to instances where the Applicant admitted to sending threatening and intimidating messages to his former partner, including threats to kill his former partner (Ms B) and her new partner.
The Tribunal has had reference to the Domestic Violence Protection Order which was taken out by the Applicant’s former partner Ms B, in November 2013 and subsequently granted, prohibiting the Applicant from contacting or being near his former partner, but not limiting the contact the Applicant could have with his children who were also named in the Protection Order (as this was subject to an agreement between the Applicant and his former partner in writing to comply with an order of the Court)[54].
[54] Exhibit R1, Annexure B, pages 621 to 629.
As part of the granting of the Domestic Violence Protection Order, the Applicant’s former partner provided an affidavit outlining the conduct of the Applicant during their relationship, and the years which followed the dissolution of that relationship. When the contents of that affidavit were put to the Applicant during cross-examination, as to why his former partner was seeking protection from him, the Applicant ultimately accepted that he had behaved in a threatening manner[55]:
[55] Transcript 15 March 2021, page 19, lines 1 to 47; page 20, lines 1 to 12.
“Respondent: So [redacted, MWCW], at paragraph 2 and 3, I’m just going to read it out. So this is [redacted, Ms B] summary of why she needs the protection order. So:
[Redacted MWCW] and I separated in March 2009 after I had experienced many incidents of physical abuse from [redacted MWCW]. We have a current interim court order in place, as there is Family Court proceedings that we appear back in court on 16 October 2013. I have always had a protection order against [redacted MWCW] as he has always been physically abusive and mentally towards myself and others around me.
And then at paragraph (indistinct) is the statement that you actually, this is another statement, [redacted MWCW]. It says you’d been sending threatening messages to [redacted, Ms B’s partner] phone, who I understand I her new partner, and the text messages says:
You better let my kids talk to me fuckhead or I’m going to smash your face. Where the fuck are my kids, arsehole? Fucking your bitch to answer your phone or I’m coming around.
[redacted MWCW], did you send those messages to [redacted, Ms B’s partner]?
Applicant: Yes, I did.
Respondent: Right, okay. Do you think that it’s a good look to be threatening her new partner?
Applicant: Obviously not. Definitely not.
Respondent: Right?
Applicant: There’s nothing good about it.
Respondent: Do you accept that you made him fear for his own safety and security?
Applicant: Yes. I also accept that I was definitely in the wrong, and there’s nothing good about it.
Respondent: So [redacted MWCW], earlier when you said, when you tried to describe your relationship, you said you fought a lot, you had a lot of differences, it wasn’t good, but you stayed in it?
Applicant: Yes.
Respondent: Do you think all that fighting is your fault?
Applicant: No. No. It was both of ours. It was both of us, because you know, we were only young, you know. We both argued and fought all the time. A lot of times throughout the whole relationship. It wasn’t a healthy relationship.
Respondent: So are you saying that you’re both equally at fault for the relationship?
Applicant: 100 per cent. 100 per cent but, you know, I did breach orders and – yes.
Respondent: It seems to me, [redacted MWCW], although you may have argued a lot you’re the one sending death threats to her, you’re the one sending death threats to her partner. It doesn’t seem like a case of you both being at fault. It seems like a case of her fearing for her safety and you threatening her?
Applicant: Yes, as I said, it seems like that obviously but it could have been many times I could have done statements on her too but I never did, you know, spoke out but - - -
Respondent: The relationship ended in 2009 and then the latest incident is 2013, so it’s four years later and you’re still threatening to kill her. Are you still blaming that on your past relationship?
Applicant: No, but before I was totally – it’s been years now since that happened, that’s parts of my life that I try to forget because it led me towards my drug addiction and depression and from losing my kids but all that is anger from being falsely accused of something you’ve never done, why I lost my kids and obviously I acted irrationally and it was wrong but I take ownership for that 100 per cent. That’s a dark part of my life that I’ve moved on from, you know, and it’s – yes.”
The Tribunal is of the view that the Applicant has failed to substantiate their general concerns with respect to the harms which he states he would face should he be returned to New Zealand, with the Tribunal observing there is very little object evidence before it with respect to these claims.
The Tribunal observes the reasons of Deputy President Sosso, in VKTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration), where he made the following observation with respect to the support applicants would receive should they be returned to New Zealand (with similar concerns regarding fear of harm due to involvement in gangs)[140]:
“352. New Zealand is a prosperous modern democracy with a high standard of living and an ordered and civil society. It has an advanced social security regime which offers those in need support and guidance. It has a judicial system and law enforcement agencies of the same calibre and type as Australia. In short, the Applicant would have the same level of material and legal support in New Zealand as he would have in Australia. Indeed, as a citizen of New Zealand, he may receive even more support than he would receive in Australia as a non-citizen.”
[140] [2020] AATA 649 (20 March 2020).
In view of the reasons outlined by the Tribunal with respect to the extent of any impediments a non-citizen may face if removed from Australia to New Zealand, it is the Tribunal’s view that paragraph 14.5 of the Direction weighs slightly in favour of revocation.
However, the Tribunal is of the view that the weight of this factor does not outweigh the very heavy and determinative weight the Tribunal has found for when combining Primary Consideration, A and Primary Consideration C.
Summary: Other Considerations
The application of the Other Considerations in the matter before the Tribunal can be summarised as follows:
(a) International non-refoulement obligations are not engaged in relation to the Applicant.
(b) Strength nature and duration of ties are of a slight weight in favour of revocation of the mandatory Visa Cancellation Decision.
(c) Impact on Australian business interests is not relevant to the factual circumstances of the Applicant.
(d) Impact on victims is of neutral weight.
(e) Extent of impediments if removed are of a slight weight in favour of revocation of the mandatory Visa Cancellation Decision.
The Tribunal is of the view that, to the extent that any of these Other Considerations, as outlined in paragraphs 14.1 to 14.5 of the Direction, weigh in favour of revoking the mandatory Visa Cancellation Decision, they are by far outweighed by the combined weight of both Primary Consideration A and Primary Consideration C, which weigh very heavily and determinatively in favour of non-revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
As previously outlined in these reasons, pursuant to s501CA(4)(b) of the Migration Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s Visa:
(i)either the Applicant must be found to pass the character test; or
(ii)the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
As the Tribunal has already outlined in these reasons, the Applicant does not pass the character test.
The Tribunal has had reference to the Direction and to all the evidence before it and finds that there is not another reason for the Tribunal to revoke the cancellation of the Applicant’s Visa.
In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Migration Act to revoke the mandatory Visa Cancellation Decision, the Tribunal has had regard to the Primary Considerations referred to in the Direction, and makes the following findings:
(i)Primary Consideration A weighs very heavily in favour of non-revocation.
(ii)Primary Consideration C weighs very heavily in favour of non-revocation.
(iii)Primary Consideration B is of a very limited weight in favour of revocation.
The Tribunal has outlined the weight attributable to the Other Considerations. The Tribunal is of the view that any weight the Tribunal has found in favour of revocation from the Other Considerations (even when combined with each other and Primary Consideration B), does not in any way outweigh the very heavy and determinative weight the Tribunal has attributed to Primary Consideration A and Primary Consideration C of the Direction.
The Tribunal makes this finding with reference to paragraph 8(4) of the Direction which provides that, “Primary considerations should generally be given greater weight than the other considerations”. In the Tribunal’s mind, both Primary Consideration A and Primary Consideration C have been the determinative considerations in this matter.
It is the Tribunal’s opinion that a holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s Visa.
Consequently, the Tribunal cannot exercise the discretion to revoke the cancellation of the Applicant’s Visa.
DECISION
Pursuant to s43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 11 January 2021 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
I certify that the preceding 226 (two hundred and twenty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member B.Pola
..................................[SGD]......................................
Associate
Dated: 6 April 2021
Date of hearing:
15 March 2021
Applicant:
MWCW, Self-represented
Solicitor for the Respondent:
Mr Alex Booth
Clayton Utz
“ANNEXURE 1 – EXHIBIT REGISTER”
EXHIBIT
DESCRIPTION OF EVIDENCE
DATE OF DOCUMENT
DATE RECEIVED
G1
G Documents (pages 1 to 163)
-
1 February 2021
R1
Respondent’s Statement of Facts, Issues and Contentions (pages 1 to 24), with annexures:
· Annexure A1: Summons material from Queensland Police Service (pages 1 to 213)
· Annexure A2: Summons material from Southport Magistrates Court (pages 214 to 693)
· Annexure A3: Summons material from Queensland Corrective Services (pages 694 to 2045)
-
2 March 2021
A1
Applicant’s Statement of Facts, Issues and Contentions (pages 1 to 4)
undated
15 February 2021
A2
Letter of support from Mr H (by email) (one page)
28 January 2021
28 January 2021
A3
Letter of support from Ms D (two pages)
undated
12 February 2021
A4
Letter of support from Ms J (two pages)
15 February 2021
15 February 2021
0
11
0