Nahi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 209
•10 February 2021
Nahi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 209 (10 February 2021)
Division:GENERAL DIVISION
File Number: 2020/7668
Re:William Nahi
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:10 February 2021
Place:Perth
The decision of the delegate of the Respondent dated 18 November 2020 not to revoke the mandatory cancellation of the Applicant's Class TY Subclass 444 Special Category (Temporary) visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) is affirmed.
......[SGD].................................................................
Deputy President Boyle
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – two-day rule – ss 500(6H) and 600(6J) – hearing date vacated – Direction 79 – primary and other considerations – risk to the Australian community – Applicant not credible witness – failure to accept responsibility for offending – best interests of minor children – lack of relevant evidence – strength, nature and duration of ties to Australia – impact on victims – extent of impediments if returned to New Zealand – Applicant is a 24-year-old man who arrived in Australia as a 14-year-old child – Applicant sentenced to 14 months imprisonment for possession of stolen or unlawfully obtained property – reviewable decision affirmed
LEGISLATION
Migration Act 1958 (Cth) – ss 499, 499(1), 499(2A), 500(6H), 500(6J), 500(1)(ba), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4).
CASES
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CZCV and Minister for Home Affairs [2019] AATA 91
DKXY v Minister for Home Affairs [2019] FCA 495
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs & Anor [2020] HCATrans 56
Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3445
Minister for Home Affairs v HSKJ (2018) 266 FCR 591
Pinder and Minister for Home Affairs [2019] AATA 1398
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Webb v Minister for Home Affairs [2020] FCA 831YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018) – paras 6.1, 6.1(3), 6.2, 6.3, 7(1)(b), 8, 8(3), 8(4), 8(5), 13(2), 13.1, 13.1(2)(a), 13.1(2)(b), 13.1.1(1), 13.1.1(1)(a), 13.1.1(1)(b), 13.1.1(1)(c), 13.1.1(1)(d), 13.1.1(1)(e), 13.1.1(1)(f), 13.1.1(1)(g), 13.1.1(1)(h), 13.1.1(1)(i), 13.1.2, 13.1.2(1)(a), 13.1.2(1)(b), 13.2, 13.2(4), 13.3, 14, 14(1)(a), 14(1)(b), 14(1)(c), 14(1)(e), 14.2, 14.3, 14.5, Part C.
REASONS FOR DECISION
Deputy President Boyle
10 February 2021
THE APPLICATION
The Applicant seeks review of a decision of a delegate of the Respondent dated
18 November 2020 not to revoke the mandatory cancellation of the Applicant's Class TY Subclass 444 Special Category (Temporary) visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act).
The Applicant’s visa was cancelled pursuant to s 501(3A) of the Act on the basis that the Applicant does not pass the character test by reason of his substantial criminal record and because he was serving a full-time term of imprisonment for an offence against a law of a State.
The application for review (Exhibit R1, G2), made on 20 November 2020, was made in accordance with s 500(1)(ba) of the Act which allows applications to be made to the Administrative Appeals Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) of the Act not to revoke a decision to cancel a visa.
THE ISSUE
The issue for determination is whether the Tribunal should exercise the power in s 501CA(4) of the Act to revoke the mandatory cancellation of the visa. That will require determination of:
(a)whether the Applicant passes the character test (as defined by s 501 of the Act); and
(b)if he does not, whether there is a ‘another reason’ why the mandatory cancellation decision should be revoked.
BACKGROUND
The Applicant is a 24-year-old citizen of New Zealand (born 29 July 1996). He began living in Australia in 2010 when he was aged 14 (Exhibit R1, G10/35). The visa that is the subject of these proceedings was granted to him on 1 January 2015 (Exhibit R1, G10/35).
On 29 August 2019 the Applicant was convicted in the District Court of Western Australia of Possession of stolen or unlawfully obtained property and was sentenced to 14 months imprisonment (Exhibit R1, G9).
On 30 October 2019, the Applicant’s visa was cancelled under s 501(3A) of the Act (Exhibit R1, G13). The Applicant confirmed receipt of the notice of cancellation, given by hand, on the same day (Exhibit R1, G3).
On 26 November 2019, the Applicant requested revocation of the cancellation of his visa, made representations seeking revocation and provided amongst other documents, a Personal Circumstances Form (Exhibit R1, G4; G14-17). On 10 December 2019 and 18 March 2020 he provided further supporting documents (Exhibit R1, G5-G6; G18-26).
On 18 November 2020, a delegate of the Minister decided, under s 501CA(4) of the Act, not to revoke the visa cancellation decision (Exhibit R1, G8).
The Applicant’s criminal history, as recorded in the Australian Criminal Intelligence Commission report (Exhibit R1, G9), is as follows:
Conviction Date
Offence
Offence Date
Court Result
15 September 2017
Common assault
28 May 2016
$2,000 fine – payable to the victim (spent conviction)
15 September 2017
Being armed or pretending to be armed in a way that may cause fear
28 May 2016
$700 fine (spent conviction)
29 August 2019
Possession of stolen or unlawfully obtained property
3 July 2018
14 months imprisonment
5 September 2019
Possess a prohibited drug (cannabis)
3 July 2018
$500 fine
18 September 2019
Permit us of premises for use of drug or plant
4 April 2019
$450 fine
THE HEARING AND EVIDENCE
The application was heard on 2 February 2021. The Applicant appeared by videoconference from Yongah Hill Immigration Detention Centre. The Applicant was represented by Ms E Watts, a registered migration agent with a legal qualification and the Respondent was represented by Mr A Burgess of Sparke Helmore Lawyers. Both counsel appeared by videoconference.
The application was initially listed to be heard on 1 February 2021. The Applicant and Ms Watts were advised by the Tribunal on several occasions, in writing and orally, of the need to provide to the Respondent, at least two business days before the hearing, written statements setting out the proposed oral evidence and copies of documents upon which the Applicant would seek to rely, failing which the Tribunal would not be able to have regard to such evidence and documents by operation of ss 500(6H) and 500(6J) of the Act. This meant that if the hearing was to proceed as listed on 1 February 2021, then such material, if the Tribunal was to have regard to it, had to be provided to the Respondent by 27 January 2021. The Applicant’s Statement of Facts, Issues and Contentions (SFIC), and written statements and other documents were lodged with the Tribunal and were provided to the Respondent on 28 January 2021. The Tribunal listed a directions hearing for 9:30am on 1 February 2021. At that directions hearing Ms Watts sought an adjournment of the hearing to the following day so that the Tribunal could have regard to the material provided on 28 January 2021. The Tribunal made orders that the date listed for the hearing of the application be vacated and that the application be relisted for hearing on 2 February 2021 which was a date on which, with some juggling, Mr Burgess was available. The Tribunal thanks Mr Burgess for his cooperation in making arrangements so that the hearing could proceed on 2 February 2021.
The following documents were admitted into evidence:
(a)Patient health summary from Landsdale Medical Centre (Exhibit A1);
(b)Confirmation of enrolment from Polytechnic West (Exhibit A2);
(c)Girrawheen Senior High School certificate dated 25 October 2013 (Exhibit A3);
(d)Girrawheen Senior High School letter addressed ‘to whom it may concern’, dated 25 October 2013, signed by Jamila Faisal and Rosalba Butterworth (Exhibit A4);
(e)Girrawheen Senior High School statement of results (Exhibit A5);
(f)Polytechnic West refrigeration and air-conditioning induction worksheet (Exhibit A6);
(g)Construction Training Fund Schools program certificate (Exhibit A7);
(h)Certificate for upper school inter school basketball team dated September 2012 (Exhibit A8);
(i)Certificate of excellence issues again by Girrawheen Senior High School dated December 2012 (Exhibit A9);
(j)Certificate I in construction from Polytechnic West dated 30 January 2013 (Exhibit A10);
(k)Certificate II in building and construction (pathway – trades) from Polytechnic West dated 25 October 2013 (Exhibit A11);
(l)Letter from Luke Firth, celebrant, dated 27 January 2021 (Exhibit A12);
(m)Statutory declaration of the Applicant made 27 January 2021 (Exhibit A13);
(n)Statutory declaration of Megan My Ngan Tran made 26 January 2021 (Exhibit A14);
(o)Statutory declaration of Eugene Nahi made 27 January 2021 (Exhibit A15);
(p)Statutory declaration of Fleur Nahi made 27 January 2021 (Exhibit A16);
(q)Statutory declaration of Joshua Matthew Quinn Thompson made 27 January 2021 (Exhibit A17);
(r)Statutory declaration of Rakim Kaldas made 27 January 2021 (Exhibit A18);
(s)Statutory declaration of Calvin Tran made 27 January 2021 (Exhibit A19);
(t)Statutory declaration of Rebecca Huynh made 27 January 2021 (Exhibit A20);
(u)Statutory declaration of Samuel James Nahi made 27 January 2021 (Exhibit A21);
(v)Statutory declaration of Tracey Vo made 27 January 2021 (Exhibit A22);
(w)Invoice from Bursmac Property Group Pty Ltd trading as Ray White Bursmac dated 5 February 2019 (Exhibit A23);
(x)Bundle of photographs of the Applicant and Ms Tran (Exhibit A24);
(y)Section 501 G Documents (Exhibit R1); and
(z)Supplementary G Documents (Exhibit R2).
The Applicant gave evidence at the hearing and was cross-examined. The following witnesses gave evidence by telephone and were cross-examined:
(a)Megan My Ngan Tran;
(b)Fleur Nahi; and
(c)Eugene Nahi.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act provides that:
The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) ...; and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
A “substantial criminal record” is defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a)...
(b)...
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
Section 501CA of the Act provides:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
…
(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.
(Original emphasis.)
Ministerial Direction 79
Section 499(1) of the Act provides that:
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Section 499(2A) of the Act provides that:
[a] person or body must comply with a direction under subsection (1).
On 20 December 2018 the Minister for Immigration, Citizenship and Multicultural Affairs made a direction under s 499 of the Act, titled “Direction No. 79: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA” (Direction 79). The commencement date for operation of Direction 79 was 28 February 2019.
Paragraph 6.1 sets out the objectives of Direction 79. Paragraph 6.1(3) relevantly provides:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 of Direction 79 provides general guidance as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction 79 sets out principles which must be taken into account by persons making decisions under s 501CA(4) of the Act, including the Tribunal. They are:
(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)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 to 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. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(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. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(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 should be allowed to come to, or remain permanently in, Australia.
(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 in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1)(b) of Direction 79 provides that, informed by the principles set out in paragraph 6.3, the decision-maker (in this case the Tribunal) must take into account the considerations in Part C of Direction 79 in order to determine whether the mandatory cancellation of the visa will be revoked.
Paragraph 13(2), which is in Part C of Direction 79, provides:
(2) In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
(a) Protection of the Australian community from criminal or other serious conduct;
(b) The best interests of minor children in Australia;
(c) Expectations of the Australian community.
Guidance as to how a decision-maker is to apply the considerations in Direction 79 can be found in paragraph 8 of Direction 79 which provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
CONSIDERATION
Does the Applicant pass the character test?
Failure of the character test arises as a matter of law: Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at [63]. The character test is framed in s 501(6) of the Act. Under s 501(6)(a) of the Act, a person will not pass the character test if the person has “a substantial criminal record”. This phrase is defined– relevantly to this case– in s 501(7)(c) (see [16] above) which relevantly provide that a person will have a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more.
The Applicant has been sentenced to a term of imprisonment in excess of 12 months (see [6] above). As a result, the Applicant has a substantial criminal record as defined in s 501(7) of the Act and, therefore, does not pass the character test. The only issue for consideration, therefore, is whether there is a reason to exercise the discretion to revoke the cancellation of the visa under s 501CA(4)(b)(ii) of the Act (see [17] above).
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED? (S 501CA(4)(b)(ii))
PRIMARY CONSIDERATIONS
First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 13(2)(a))
Paragraph 13.1 of Direction 79 provides that when decision-makers are considering the protection of the Australian community, they:
(1) ... should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on noncitizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2) Decision-makers should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (para 13.1(2)(a))
Paragraph 13.1.1(1) of Direction 79 provides:
In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
(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;
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)Where the non-citizen is in Australia, that 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 is serious, as is an offence against section 197A of the Act;
The Applicant’s convictions
2019 convictions: possession of $300,240 stolen or unlawfully obtained, possession of cannabis, permit premises for use of drug
The offences of which the Applicant has been convicted are set out in [10] above. The most serious of the Applicant’s convictions is that for possession of unlawfully obtained property for which the Applicant was sentenced to a term of imprisonment of 14 months and resulted in the cancellation of his visa under s 501(3A) of the Act. The circumstances of that offence are set out in the sentencing judge’s comments (Exhibit R1, G11) as follows:
You’ve pleaded guilty to one count of being in possession of a sum of money on 3 July 2018 which was then reasonably suspected to have been unlawfully obtained. This is an offence contrary to section 417(1) of the Criminal Code. It carries a maximum term of imprisonment of seven years.
…
The material facts are these, on the day of the offence detectives conducted a traffic stop on a vehicle on which [sic] you were the sole occupant.
The vehicle was searched. It contained two large presents wrapped in wrapping paper. These presents, once searched, contained A$300,240. This cash was sealed in cryovac clear packaging. A search of your residence was later carried out, the following items were found, rolls of wrapping paper, a cryovac machine and material consistent with the cryovac bags used to wrap the cash.
… This issue was resolved on the basis that I'm not satisfied on the material before me that you were involved in the packaging of the cash, the subject of the offending.
You're to be sentenced on the basis that you're not involved in the activity by which the moneys were involved or obtained. And that you were not aware of what that activity was.
… Four days prior to your arrest, a previous acquaintance of yours asked you to go to a specific car park where another person would provide you with a package. You asked the acquaintance whether the contents of the package were illegal and you were told that it was not.
You asked no further questions in relation to the package and accept that you ought have done so as you held a suspicion that your acquaintance might not be telling you the truth. … You attended the car park in accordance with the acquaintance's request, and an unknown person placed the bag in your car.
You did not take the package out of your car or look inside the bag to examine its contents. You continued with your normal daily activities over the next four days which included driving and left the package untouched in the back of the car.
On 3 July 2018, prior to departing from the Bunnings car park in Bayswater, you placed the packages which were in the wrapping paper and containing the cash into the gift bag in the rear of the car. You accept that it was at this point that you knew the packages contained cash.
The search of the Applicant’s car on 3 July 2018 was conducted by several police officers. Details of the search are set out in statements provided by those police officers (Exhibit R2, 123–137). Detective First Class Constable Kaillen Clarke in a statement signed on 2 August 2018 (Exhibit R2/127–129) said:
Approximately 4:10 pm we entered Bunnings Bayswater car park and approached a Silver Toyota Corolla, registration number [omitted].
I observed a single male occupant in the vehicle who exited as we approached.
The male introduced himself as William Isaiah NAHI, the accused in the matter and provided a Western Australian Drivers Licence.
Due to the highly nervous demeanour of the accused, D1/C BIRCH requested consent to search the vehicle under the Misuse of Drugs Act 1981 Section 23.
The accused provided verbal consent to D1/C BIRCH and I.
I began to search the accused under Criminal investigation Act 2006 Section 70, while D1/C BIRCH searched the vehicle.
Moments later, D1/C BIRCH called a stop search after locating a sum of cash on the back passenger side seat.
…
The vehicle was then searched on video with my role being a searching officer.
During the search of the vehicle, I observed a large wooden speaker box located in the boot of the vehicle.
I searched the box and located a rear secret compartment, which housed a sum of cash in paper and plastic wrapping.
The box was electro-magnetically sealed with the wiring running from the box to the centre console area.
The case was seized and recorded on exhibit log [omitted].
The money located by Detective First Class Constable Clarke in the secret compartment in the speaker box was in the amount of $90,000. It appears that the Applicant was initially charged with possession of stolen or unlawfully obtained property in respect of that $90,000 as well as the $300,240 found in the search of the car, but the charge was amended to delete the $90,000 (transcript at 19). The Applicant was cross-examined on the $90,000 as follows:
COUNSEL: Okay. When your car was searched there was also $90,000 of cash found in a subwoofer in the back of the car, wasn’t there?
APPLICANT: Yes.
COUNSEL: You haven’t provided any explanation for that cash, have you, in your statement?
APPLICANT: I was not charged with that cash. They dropped that charge for that money against me.
COUNSEL: Yes. Would you accept that there was a secret compartment in the back of the subwoofer in the back of your car?
APPLICANT: Yes.
COUNSEL: And you would expect that there was $90,000 in cash in that compartment?
APPLICANT: Yes, I do, yes.
COUNSEL: Well, I put it to you that you were aware of that cash as well, weren’t you?
APPLICANT: No, I wasn’t.
COUNSEL: Well, how did $90,000 in cash end up in the back of your car?
APPLICANT: Well, yeah, I don’t really have a good memory of what happened but I did not know the presents were containing cash until that morning. As the judge said as well in my transcript, that he agreed with me.
COUNSEL: Yes, and you weren’t --?---
APPLICANT: (Indistinct) there’s separate situations in two different places, so.
COUNSEL: Yes, so you have no explanation as to how there was $90,000 in brown paper bags in a subwoofer - in a secret compartment in the back of your car?
APPLICANT: No, I don’t. This wasn’t my car as well. As it says in the statement of material facts.
…
COUNSEL: You’d had that car for quite some period of time before you were pulled over, hadn’t you?
APPLICANT: Yes.
COUNSEL: And you were in the process of purchasing that car from the man who owned it, weren’t you?
APPLICANT: Yes. Correct.
COUNSEL: You had an agreement to purchase the car, but you hadn’t given him the money yet?
APPLICANT: Yes, that’s correct.
COUNSEL: And how long had you had that car for?
APPLICANT: About a year, couple of months.
COUNSEL: A year and a couple of months? So, when you say it wasn’t your car, as a defence to having $90,000 in the back of it, only you could put that money in there. That’s right, isn’t it?
APPLICANT: I didn’t know there was a secret compartment in the subwoofer.
(transcript at 19–20).
The Tribunal also asked the Applicant some questions about the $90,000 found hidden in the Applicant’s car (transcript at 29–30):
TRIBUNAL: Now, leading up to the time where the police found $90,000 cash hidden in the secret compartment of the car that you say you had had - or had been driving for a year and several months?
APPLICANT: Yes.
TRIBUNAL: Who else had access to that car?
APPLICANT: My friends asked to borrow it every now and again.
TRIBUNAL: And is it your evidence to me that you didn’t know it had a secret compartment, or that it had $90,000 in cash hidden in it?
APPLICANT: Yes, that is correct.
…
TRIBUNAL: That you can’t say who would have put the money in there, and that you wouldn’t know?
APPLICANT: (Indistinct) - I - I didn’t even know there was a secret compartment in there. The police took a long time to find it, and when they found it I was just as surprised as them. If I’d known it was there, and I knew that there was money in that wrapped package, wouldn’t I have put that in with the $90,000, in the secret compartment?
The Tribunal notes that the statement by the Applicant that the police “took a long time to find it” is not consistent with the statement of Detective First Class Constable Clarke (see [32] above) who said that the secret compartment was located during the search of the Applicant’s car when he was stopped by police on 3 July 2018. The Tribunal also notes Detective First Class Constable Clarke’s statement that the secret compartment was “electro-magnetically sealed with the wiring running from the box to the centre console area”.
The conviction for possession of cannabis arose out of searches undertaken by police immediately after the search of the Applicant’s car on 3 July 2018. The circumstances of the first of those searches, the search of a property situated in Girrawheen, are set out in the police statement of material facts (Exhibit R2/8–9) as follows:
At about 4.10pm on Tuesday 3 July 2018, Organised Crime Squad Detectives conducted a traffic stop on a 2013 Silver Toyota Corolla hatchback, registration number [omitted] in the carpark of Bunnings, Collier Road, Bayswater.
…
A search of the vehicle was conducted and in the rear left foot well of the vehicle Police located a green and white gift bag. Two large presents wrapped in wrapping paper were located in the bag.
A search of these two presents located $300,240 Australian currency cash. This cash was sealed in cryovac clear packaging.
Police conducted a further search of the vehicle and located a large black subwoofer speaker. The speaker was approximately one metre long and 45cm deep.
Detectives forced the rear backing of the speaker and found a large hidden compartment. This speaker had magnetic locks and power unit to open the compartment. Detectives located a further $90,000 cash hidden in this compartment in brown paper bags.
The accused was interviewed at the scene where he provided a "No comment" interview.
A search warrant was later executed at the accused home address of [omitted] Landsdale where a cryovac machine and material constistent [sic] with the cryovac bags surrounding the cash.
…
At about 7.00pm on Tuesday 3 July 2018, Organised Crime Squad Detectives executed a Misuse of Drugs Act search warrant at [omitted] Girrawheen.
During a search of the lounge room area, Police located 105.4 grams of Cannabis head material in two large glass jars.
The accused was later interviewed in relation to the Cannabis where he claimed ownership.
The accused stated "The Cannabis is mine" however refused to answer any other questions.
Further details of that search were set out in the statement of Detective Senior Constable Steven Newing signed on 14 August 2018 (Exhibit R2/133) as follows:
After the search of the vehicle was concluded, NAHI was conveyed to [omitted] Girrawheen where a Misuse of Drugs Act search warrant was executed.
At about 7.00pm the search warrant was executed at the premises.
The cannabis located in the search undertaken by Detective Senior Constable Newing was, in part, the subject of the charge of possession of cannabis to which that Applicant pled guilty.
The Applicant was not residing at the Girrawheen residence at the time of the search. His evidence at the hearing was that that property was owned by the parents of his partner (Ms Tran) and that he and Ms Tran had moved out of that address “about a month before” the search and that Ms Tran’s parents were living at that address (transcript at 21).
On that same day, 3 July 2018, the police also searched the Applicant’s residence located in Landsdale. The events surrounding that search are set out in the statement of Detective Senior Constable Ashley Clarke signed 6 August 2018 (Exhibit R2/138–141). Senior Constable Ashley Clarke said in that statement:
On Tuesday, 3 July 2018 I was on duty, when I was asked to assist in a Misuse of Drugs Act search warrant.
The warrant was to be conducted at [omitted] Lansdale.
At approximately 18:00 hours that day, I travelled to the address. Upon my arrival there was a male stood on the driveway to the address placing a large brown cardboard box in to the boot of a silver vehicle.
I now know this male to be Tony SUKOSKI (SUKOSKI).
As this male was being detained by my colleagues, I made my way in to the address. I passed through the hallway of the address in to the rear of the property which consisted of a living area and a kitchen.
As I got into the living room I saw a female who I now know to be Megan TRAN.
The Applicant was cross-examined on these convictions and the events of 3 July 2018. The following are extracts of the Applicant’s evidence:
COUNSEL: Well, after [Girrawheen] was raided, the property that you’d moved into [in Landsdale], that was also raided?
APPLICANT: Yes. That’s correct.
COUNSEL: And what was found in relation to that? In that house?
APPLICANT: I think they might have found a little bit more cannabis in that house. That’s all I’m aware of.
COUNSEL: And who lived in that house with you?
APLICANT: Me, my fiancée and her little brother at the time.
…
COUNSEL: Because I think police arrived - I’m sorry, I’ll withdraw that. Were you convicted in relation to the cannabis that was found at the (indistinct) house as well?
APPLICANT: Yes, they put it together as the possession of cannabis charge.
COUNSEL: Now, when there was a warrant conducted [in Landsdale] it was approximately at six o’clock that day police found a male known as Tony Zakoski [sic] in the driveway when the property was raided. Who is Tony Zakoski [sic]?
APPLICANT: He - he was a friend, an old associate. We used to - I used to go to his gym to work out.
COUNSEL: Okay. And at the time he was putting a box into the boot of his car, wasn’t he?
APPLICANT: That’s what I’m aware of. I wasn’t there, I was at the other property.
COUNSEL: Well, in that box there were three Alcatel mobile phones … three phones, so four phones, an electric shock device, more cannabis, a plastic bag, an elastic band for the vacuum sealer, weren’t there?
APPLICANT: Yes.
COUNSEL: And those items were being removed from the [Landsdale] property and put into the car weren’t they?
APPLICANT: … my understanding, they were in the car when the police come around.
COUNSEL: Yes, well I put it to you that they were being put into the car when the police came around. Would you accept that - - -?
APPLICANT: They were - they were already in the car.
(transcript at 22–23).
“Tony Zakosky” (the Tribunal believes this to be a reference to Tony Sukoski), the person police observed putting a box into the boot of his car when they arrived to execute the search warrant at the Applicant’s Landsdale residence on 3 July 2018, featured in other evidence given at the hearing:
TRIBUNAL: Now, the person whose car was in the driveway at the time of the search - what was your relationship with him?
APPLICANT: He was my friend. I was going to his gym. He has his own gym. … I was working out with him. He’s a personal trainer.
TRIBUNAL: And so is he a drug dealer?
APPLICANT: Not to my understanding.
TRIBUNAL: Well, he’s got all the paraphernalia hasn’t he?
APPLICANT: (Indistinct) - I wasn’t at the house, they took me to the - - -
TRIBUNAL: No, that’s not the question, Mr Nahi. It seems clear - or it seems there may be an inference that I could draw - that you’re awfully unlucky or you’re associating with or involved in fairly substantial drug dealing. What do you say to that?
APPLICANT: As the courts were trying to say that I was involved in drug dealing, that’s why the money was found - my lawyer also stood up and said that it couldn’t - no one can prove where it came from, because I wasn’t done with drugs or - there was no weapons alongside the money. That it could have been from someone not paying their taxes. I take full responsibility that I had the money and I accept that. But, (indistinct) - - -
…
COUNSEL: So, Mr Nahi, you stated before that - to the Deputy President - that you’re not aware whether Mr Zakoski was a drug dealer. That was your evidence, wasn’t it?
APPLICANT: Yes.
COUNSEL: Well, would you be aware that he has been arrested in December - or before December 2019 - in relation to running a large drug syndicate in Perth?
APPLICANT: No, I would have been in gaol at that time.
COUNSEL: Well, I’ve managed to find a page on the West Australian newspaper, page 14 on the December 16, 2019, which talks about him being involved - him being charged, (indistinct) four people charged, in relation to distributing 20 kilos of meth, five kilograms of heroin and more than a million dollars in - in proceeds of crime. Would that surprise you?
APPLICANT: Yes, that surprises me a lot.
COUNSEL: Well, in relation - - -?
APPLICANT: Because, as I said before, he was my personal trainer, and he became my friend and we used to go eat dinner and train at the gym. That’s as far as - - -
COUNSEL: Was he a personal trainer at the gym that you attended in 2019, that we talked about before?
APPLICANT: Yes, that is his gym.
(transcript at 28–30).
Counsel’s reference to the gym that “we talked about earlier” was to the following evidence:
COUNSEL: You’ve been charged with another offence going to prison?
APPLICANT: Since I - when I was in prison, yes. Yes, I have.
COUNSEL: And that’s in relation to the offence of sold a prohibited drug, isn’t it?
APPLICANT: Yes, that’s correct.
COUNSEL: Could you tell the tribunal what incident that charge came out of?
APPLICANT: Yes. So I went to - with my missus’ little brother I went to a gym because he wanted to check out the gym, a new gym to go to. It had a new pool that just got installed, and we all got arrested. I found out when they took me back to the police station that they found drugs, and then they let me go and I didn’t get charged till six, seven months later while I was in prison.
COUNSEL: Well, where did they find the drugs?
APPLICANT: On some [omitted] person.
COUNSEL: Okay. Now, that was in relation to the sale of almost two kilos of MDMA, wasn’t it?
APPLICANT: Yes, that’s my understanding.
…
COUNSEL: [explaining to the Tribunal]… It’s in relation to the applicant’s bail which - sorry - applicant’s parole which (indistinct) because there was an outstanding conviction - an outstanding charge - sorry - for sold a prohibited drug. And halfway down the page it says on 4 April 2019 at 2.38 Mr Nahi attended Beatty Park Leisure Centre to facilitate the sale of prohibited drugs involving 1.96 kilograms of MDMA. Arrangements had been made to exchange 1.5 kilos of MDMA for $80,000. (To witness) Now, Mr Nahi, you plead not guilty to that offence, haven’t you?
APPLICANT: That is correct, yes.
COUNSEL: And when is your hearing for that offence?
APPLICANT: End of this year.
(transcript at 26).
The Applicant’s evidence that he did not know that his friend, Mr Sukoski, was (or was at least accused of being) a drug dealer and that it “surprises [him] a lot” (see [42] above) (note the current tense) when the Respondent’s counsel took him to the West Australian Newspaper article dated 16 December 2019, was unequivocally contradicted by Ms Tran’s evidence. Relevantly, Ms Tran’s evidence was:
COUNSEL: When police raided the [Landsdale] house, there was a man there named Mr Zakoski. Do you know Mr Zakoski?
MS TRAN: I’m sorry, I’m not too sure about the surname. Do you have his first name?
COUNSEL: Yes. His name - sorry, I’ll just find it. Tony Zakoski?
MS TRAN: Yes. Yes, I do know him.
COUNSEL: And how do you know Tony Zakoski?
MS TRAN: I know him through my partner, William. So he used to be his trainer in, like, fitness and gym, and they became friends from then.
COUNSEL: And are [you] aware that Mr Zakoski has been arrested as part of a drug syndicate?
MS TRAN: I have saw - seen it on the news, yes.
COUNSEL: Do you know if William was aware that Mr Zakoski had been arrested?
MS TRAN: He wasn’t aware. I advised him, because he was incarcerated, so I wasn’t sure if he did hear the news.
COUNSEL: So you’re saying you told him about Mr Zakoski?
MS TRAN: Yeah. Yeah, but he got the newspaper as well.
COUNSEL: Have you shown him the articles in the newspaper about Mr Zakoski?
MS TRAN: I didn’t show him. I wasn’t allowed to bring anything into the visit, but he told me that he saw the newspaper.
Ms Tran was not re-examined on this evidence.
2017 convictions: common assault, being armed in public in a way that may cause fear
The Applicant was also convicted in 2017 of common assault and being armed or pretending to be armed in a way that may cause fear. The Applicant provided a statutory declaration made 27 January 2021 (Exhibit A13) setting out his version of the events which gave rise to those convictions. In that statutory declaration the Applicant said that he and his partner Ms Tran arrived at the Woolworths Alexander Heights Shopping Centre on
28 May 2016, at which time the Applicant was 19 years old, to shop for groceries and that he accidentally bumped into a trolly collector. The Applicant said that he apologised and continued into the shop with Ms Tran. When they came out of the shop the Applicant said that there were words exchanged and that the trolly collector started pushing a trolly towards the Applicant and that he was inviting the Applicant to fight him. The Applicant says that:
He continued to say "I'm not scared of you, lets go" and other things, I felt very threatened as I knew his mate the other trolley collector was around somewhere, so I pulled pepper spray out of my pocket and pointed it at him and said "just leave it, fuck off or I'll spray you" he kept going, I warned him three times that I would spray him if he done anything.
He shoved the trolley into me and I sprayed him and then he fell on the ground crying saying "what did you spray me with" and started yelling for his mate. All I hear from Megan was "babe watch out" I saw a man running towards me and I duck just in time to avoid his punch, I tried to spray him as well but it did not get him as he kept running. He ran to what I assume was his car and grab tyre irons and other pole like objects out of his car and run back towards me so I reached into my car door and grabbed a flick stick out and was just holding it down beside my leg not extended.
…
… As he was running back towards me, Megan yelled at him and said "stop just leave it, we want to go home" then he started yelling at Megan and swearing and abusing her. As I feared he might do something to her I flicked out the stick yelling at him and telling him to "fuck off and leave us" he dropped the weapons in his hand into a trolley and started to yell at the bystanders saying "call the cops".
The end of this incident was filmed on a phone camera by a customer, however on the vision I was the only one in the shot holding the bat, it did not show the other trolley guy holding the tyre leaver and they claimed it was only a trolley hook. This could not be proven.
At this same incident the Police dropped the charge of unlawful wounding because it was accepted that there was self defence involved and it was considered an emergency situation.
(Without alternation.)
The version of the events of 28 May 2016 contained in the Western Australian Police Detected Incidents Report (Exhibit R2/5) was as follows:
Date/Time of Incident: 28th May 2015 at 16:50 hours.
…
UN102, UN106 (ROG North officers) AAA and located the victim … who displayed signs of being pepper sprayed in the face. He stated to Police that the POI was still at the scene sitting in his vehicle a short distance away.
A witness to the incident has shown Police a partial mobile phone footage of the incident showing the POI holding the pepper spray and holding it in the direction of the victim. Then taking out an extendable baton from his vehicle and holding it up in an aggressive manner.
Police approached the POI who was seated in his vehicle and located the pepper spray and baton within the vehicle. The POI was arrested and advised of his Section 137/138 arrested persons rights and cautioned.
The Applicant was cross-examined in this incident. The Applicant’s evidence was as follows:
COUNSEL: Now, this is an investigation report from the WA police and it (indistinct) that there is a video of you holding a pepper spray towards the victim … ?
APPLICANT: That was not on video. The video was of me holding the bat.
COUNSEL: Okay. So in relation to that bat, that was - you went to your car to get that bat after spraying [the victim] in the face with the pepper spray?
APPLICANT: Yes.
COUNSEL: And you were convicted in relation to being armed in a way to cause (indistinct)?
APPLICANT: Yes.
COUNSEL: And that was in relation to the wielding of that bat wasn’t it?
APPLICANT: Yes, it was, yes.
COUNSEL: You pleaded not guilty to that offence?
APPLICANT: Yes.
COUNSEL: And you were found guilty in relation to it by the court?
APPLICANT: Yes. … I take full responsibility. The video only had the end of the incident where I was waving it. It didn’t have the start of them provoking me or anything.
…
COUNSEL: Do you maintain that it was self-defence notwithstanding that the court didn’t accept that?
APPLICANT: No, I take full responsibility for what I’ve done. I know it wasn’t the right thing to do.
(transcript at 17–18).
The Tribunal asked the Applicant about his statements of taking full responsibility for his actions:
TRIBUNAL: Well, Mr Nahi - Mr - you really don’t accept full responsibility, do you?
APPLICANT: Yes (indistinct) - - -
TRIBUNAL: It’s a bit like you saying I accept full responsibility for the incident in the carpark and then proceed to actually distance yourself from that by saying it was all in self-defence, which clearly the court didn’t accept. The story that you’ve told - and this is a matter that your lawyer will have to address on - the story that you’ve told would constitute a defence. Now, clearly the court didn’t accept that as a defence. So, how is it you keep saying, ‘I accept responsibility, but really I didn’t do anything, I was defending myself’?
APPLICANT: That’s just my story of what happened. I still take full responsibility for spraying them, for hurting them, for everything. (Indistinct) - - -
(transcript at 29).
In assessing the Applicant’s history of offending and other conduct against the considerations identified in paragraph 13.1.1(1) of Direction 79, the Tribunal observes that:
(i)(paragraph 13.1.1(1)(a)) – the Applicant has one conviction for an offence involving violence. This offence must be viewed very seriously, however, the Tribunal accepts that the offence occurred nearly five years ago and the Applicant was young at the time. It is also fair to say that the assault was not pre-meditated and seems to have been committed “in the heat of the moment”, however, it is of obvious concern that the Applicant was, apparently, in the habit of carrying a pepper spray on him and carrying an extendable baton in his car;
(ii)(paragraph 13.1.1(1)(b)) – the Applicant has no convictions for offences against women or children;
(iii)(paragraph 13.1.1(1)(c)) – the Applicant’s offences have not been committed against vulnerable members of the community or against government representatives in the performance of their duties;
(iv)(paragraph 13.1.1(1)(d)) – the only term of imprisonment to which the Applicant has been sentenced is the 14 months for the possession of the unlawfully obtained $300,240. The Respondent submits (Respondent’s SFIC para 28(c)) that
“[s]entences involving terms of imprisonment are the last resort in the sentencing hierarchy. Accordingly, where a Court has sentenced an offender to a term of custodial imprisonment, this must be viewed as a reflection of the object seriousness of the offences involved.
While that may be the case, paragraph 13.1.1(1)(c) must be read in the context of a “substantial criminal record” as defined by s 501(7) of the Act which is that the person has been sentenced to a term of imprisonment of 12 months or more. While the application of paragraph 13.1.1(1)(c) is not limited to considering a person’s criminal record (which has been deemed a substantial criminal record under s 501(7)), where the operation of that subparagraph is triggered by the person being considered to have a substantial criminal record by operation of s 501(7) of the Act, as a minimum the person is going to have a sentence of, or sentences totalling imprisonment for at least 12 months. In that context a sentence of 14 months, is at the lower end of relevant sentences for the purposes of this subparagraph. In sentencing the Applicant Lemonis DCJ observed:
However, in the overall circumstances of your conduct that I’ve outlined, I consider the offence is towards the lower end of the scale of seriousness.
(Exhibit R1, G11/44).
The Tribunal does, however, accept that by imposing a sentence of
14 months (noting the sentencing judge’s advice that the maximum sentence for the offence was seven years imprisonment – see [31] above) the court considered the offending to be serious, albeit towards the lower end of the scale of seriousness;
(v)(paragraph 13.1.1(1)(e)) – The Applicant has been convicted of five offences. The first two offences were committed in May 2016 and two more serious offences, were committed in July 2018. The Applicant has, therefore, committed five offences over a three-year period which could be considered as frequent offending. However, the convictions arise out of, in effect, three incidents so, in the Tribunal’s view, it is more appropriate to consider the Applicant’s offending as isolated or episodic rather than frequent. The Tribunal also accepts that there are long periods in which the Applicant did not offend.
(vi)(paragraph 13.1.1(1)((f)) – the Applicant has been convicted of five offences arising from separate circumstances three years apart. The Tribunal does not think that there is any relevant “cumulative effect of repeated offending” in the present case;
(vii)(paragraphs 13.1.1(1)(g), 13.1.1(1)(h) and 13.1.1(1)(i)) – not applicable in the present case.
Overall, the nature and seriousness of the Applicant’s criminal offending and other conduct, taking into account the factors identified in paragraph 13.1.1(1), weigh against the revocation of the cancellation of the Applicant’s visa. Only moderate weight should be given to this consideration.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 13.1(2)(b))
Paragraph 13.1.2 of Direction 79 provides:
(1)In considering the risk 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 available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The Tribunal in CZCV and Minister for Home Affairs [2019] AATA 91 (CZCV) summarised the task for the Tribunal as follows (at [56]):
In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice (2013) 41 VR 359, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]-[43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, Moshinsky J stated, at [68]:
... there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.
The Tribunal agrees with and adopts the approach indicated in the above cases.
Nature of harm to individuals or the Australian community (para 13.1.2(1)(a))
The nature of the harm to individuals and to the community if the Applicant were to engage in the criminal and other behaviour which he has in the past, is obvious and serious. The consequences of a repeat of the violent behaviour for which the Applicant was convicted on individuals who might be victims of such behaviour, as well as to the victims’ families and loved ones, and the broader community, do not need to be spelt out.
The nature of the harm to individuals, other than the Applicant himself, if he were to repeat the behaviour that gave rise to his convictions for cannabis possession and allowing premises to be used for drugs is less obvious. Such offending, however, has knock-on effects for the broader community because of the additional law enforcement, and potentially healthcare costs which this sort of offending causes.
The nature of harm to individuals and the community if the Applicant were to repeat the most serious offence, that of possession of stolen or unlawfully obtained property, is difficult to assess as there is no obvious victim to that conduct per se. The conduct is, however, in general terms, facilitative of other serious criminal behaviour, for instance drug dealing or money laundering associated with criminal activity which would, in all probability cause harm to individuals or the Australian community. As Lemonis DCJ found in sentencing the Applicant:
Given the large amount of money involved, how it was wrapped and the circumstances in which you were asked to collect it, I’m satisfied that the money was in respect of a form of criminal activity.
(Exhibit R1, G11/40).
The likelihood of the non-citizen engaging in further criminal or other serious conduct – risk of re-offending (para 13.1.2(1)(b))
The Respondent’s SFIC (at para 32) submits that:
The sentencing remarks also indicate that the applicant’s offending was linked to a long-term drug addiction. In particular, the applicant commenced using cannabis in year 11 and smoked it daily after finishing high school. He continued to smoke it until the time of his arrest. He was smoking up to 40 cones of cannabis daily. His drug use and dependence is therefore very significant. Whilst he says he has abstained from drug use and is receiving medical treatment for his drug dependence, and that he attended Narcotics Anonymous whilst in custody, there is no independent evidence in relation to this or how he has responded to his treatment. As the sentencing judge remarked “whether you reoffend is largely dependent upon you staying off cannabis”.
The above statement is consistent with the evidence that was before the Tribunal. The extent of the Applicant’s drug use and the link between that drug use and his offending is also not disputed. The Applicant says that in relation to there being no independent evidence supporting his rehabilitation, the Applicant points to the fact that he was required to provide urine analysis tests throughout July to September 2019 which evidenced he was no longer smoking cannabis. The Applicant submits that his “commitment to abstain completely from an everyday addi[c]tion to complete abstinence from July 2019 to date is evidence of his character and commitment to live a positive and drug free life” (Applicant’s SFIC, para 35). The Applicant also says that he has undertaken nicotine training in prison and he no longer smokes cigarettes, as evidenced by the Wooroloo Prison medical report.
The Applicant’s SFIC contends that:
The relevant consideration for the Tribunal concerning risk of re-offending, 13.1.2(1)(b) is whether the Applicant would associate with people who would influence criminal activity and whether he is likely to start consuming cannabis again.
In support of that the Applicant points to:
·the Applicant’s family’s strong commitment to support him as evidenced by their statements given in the proceedings and their frequent visits to him whilst he was in Wooroloo Prison Farm and the Yongah Hill Immigration Detention Centre;
·the Applicant and his fiancé having made plans to marry in June 2021 and have children;
·the Applicants father’s commitment to continue supporting his son’s employment as an apprentice carpenter with his company and to work closely with him on a daily basis to ensure he has positive support and guidance; and
·the statutory declarations of the Applicant’s friends that say the Applicant is no longer associating with the people who involved him in the crime and that they commit to being more involved in the Applicant’s life to provide positive and motivational support.
The Applicant’s submissions in relation to his offending rely heavily on the Applicant’s criminal behaviour being the result of his cannabis addiction. There was no independent, expert psychological evidence presented by the Applicant. It would appear that a psychiatrist’s or psychologist’s report (it is not clear which) as to the Applicant’s drug use and his offending was submitted by the Applicant to the court at the time of his sentencing. That report was not before the Tribunal. In sentencing the Applicant on 29 August 2019, Lemonis DCJ commented:
You commenced using cannabis in year 11 and smoked cannabis daily after having finished high school. Your cannabis use continued for a six-year period excluding a four-month holiday.
The psychologist described you as revealing an underlying anxiety disorder, the test results carried out by the psychologist pointed to a serious disorder such as major depression and anxiety as well as a drug dependence.
The psychiatrist report you obtained reported you were smoking up to 40 cones per day since you were in year 11 which thankfully has now ceased.
I accept that your cannabis use and personality made you a vulnerable target to be used for this type of offending.
…
The psychologist points to your choice of friends or associates and cannabis dependence being highly relevant to your offending behaviour. The psychologist stated that your attempts at overcoming your drug dependence appeared legitimate and expressed the view that this would reduce your risk of offending if you are successfully treated.
…
Overall, whether you reoffend is largely dependent upon you staying off cannabis. If you do I am satisfied that your risk of reoffending is low. It is not possible for me to say, however, on the material before me that the risk is - what the risk is of you reengaging with cannabis. At best all I can say is it is a moderate risk.
The Tribunal notes his Honour’s observation that, in his view, the risk of the Applicant “re-engaging with cannabis” was “[a]t best … a moderate risk”.
The second influence in the Applicant’s previous criminal behaviour identified by Lemonis DCJ was the Applicant’s anti-social associates. The Applicant submits that he no longer associates with the people he engaged with when he committed the offences. As with the Applicant’s claims that he will not use cannabis in the future, his claim that he no longer associates with, and will not associate with, these people cannot be tested. In the end all that the Tribunal has is the Applicant’s word that he has severed those connections and will not associate with those people if he is allowed to stay in Australia.
The Tribunal has some reluctance in accepting the Applicant’s word in this regard. The Applicant was not, in the Tribunal’s view, an honest witness. Of particular concern is the lie that the Applicant told, under affirmation, when he claimed not to have known, until advised by the Respondent’s counsel at the hearing, that his friend, Tony Sukoski, had been arrested in relation to running a large drug syndicate in Perth (see [41]-[42] above). Ms Tran’s evidence unequivocally demonstrated the Applicant’s evidence to be false.
Also of concern was the Applicant trying to minimise his offending or not, in any meaningful sense, accepting responsibility for his criminal behaviour. In relation to the incident in the Woolworths carpark in 2016, even at the hearing the Applicant continued to assert that he acted in self-defence. That was not accepted by the court that found him guilty on both charges. Similarly, in respect of the possession of the unlawfully obtained $300,240, the Applicant in effect stuck to his story that he was doing someone a favour by collecting “presents” which were “thrown in the back of the car by somebody [he didn’t] know” (transcript at 33) is not plausible.
The Applicant’s evidence was, in several respects, evasive and less than frank. When cross-examined about the $90,000 found in the hidden compartment in his car, the Applicant said that it was not his car. That, in the Tribunal’s view, was a disingenuous answer. While the registration of the car had not been transferred to the Applicant, he had had the car in his possession for some 14 months. The Tribunal had difficulty accepting that he did not know that the secret compartment, electronically operated from the car’s centre console (see [34] above), did not exist. His assertion that if he did not put the $90,000 in the secret compartment in his car, he could not say who could have put the money in the secret compartment is, in the Tribunal’s view, not credible.
Of further concern, and evidence of a lack of any true remorse or meaningful acceptance of responsibility for his criminal behaviour, is that fact that he has not co-operated with police. He says that he has in that he pleaded guilty to offences committed in 2018. That is not the same as co-operating with the police. He says that he has refused to tell police who asked him to collect the packages containing the money, “because it will put [his] life in danger” (transcript at 32). That, in itself, if it is true, would seem to indicate that he was aware that the activity that he was involved in was highly illegal and that the people for whom he was collecting the money were serious criminals. The bottom line, however, is that he has failed to co-operate with the police.
The Tribunal is aware that the Department of Justice Management Placement Report (Exhibit R2/76) advised that, applying the prison version (RoR-PV) assessment screening tool the Applicant was assessed at a score of 5 which meant that his risk level in terms of general reoffending was low and that he was therefore not recommended for any criminogenic programs.
The Applicant’s parents, Ms Tran and others who provided statements said that they would provide support to the Applicant to ensure that he does not revert to drug abuse and to crime. The Tribunal accepts the sincerity of these witnesses, in particular the Applicant’s parents both of whom gave obviously honest and heartfelt evidence at the hearing. However, that positive support was present, or at least was available to the Applicant throughout the time that he abused drugs and committed the offences of which he has been convicted. Unfortunately, there is nothing to indicate that such support and positive influence will be any more successful than it was in the past.
The Tribunal assesses the likelihood of the Applicant engaging in further criminal or other serious conduct as moderate. Taking into account the harm that would be caused to the community if the Applicant were to engage in further criminal or other serious conduct, this consideration weighs against the revocation of the cancellation of the visa. Moderate weight should be given to this consideration.
Second primary consideration: The best interests of minor children in Australia (para 13.2)
Paragraph 13.2(4) of Direction 79 provides:
(4) In considering the best interests of the child, the following factors must be considered where relevant:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has no children of his own. The Applicant’s SFIC identifies the following children as being relevant to this consideration:
·a niece, the child of his brother, Samuel Nahi;
·a nephew, also the child of his brother Samuel;
·two children to whom he is godfather; and
·Ms Tran’s youngest brother.
Unfortunately, there was a lack of any meaningful evidence going to any of the considerations identified by paragraph 13.2 of Direction 79.
Statements were provided by the Applicant, the Applicant’s parents, the Applicant’s brother Samuel, Joshua Thompson (the father of the Applicant’s godchildren), and the Applicant’s partner, Ms Tran. None of those statements, however, addresses the factors identified in paragraph 13.2.
Ms Tran’s statutory declaration (Exhibit A14) does not refer to her younger brother or to the Applicant having any relationship with any minor children. Ms Tran provided a letter of support for the Applicant’s request for revocation of the cancellation submitted to the Department (Exhibit R1, G19), however, the only references in that letter to children were that:
He’s a loving uncle to a 10-month-old baby girl named [B], his older brothers daughter. He is a Godfather to a little boy named [N] who is turning 2 next year in March. The two of them have an unbreakable bond and [N] has so much love for him. He also has a very close bond with my 5-year-old brother, [M]. My little brother has always loved William since the day he was born, he always turns to William whenever something is wrong. … He now has another god son/daughter and another niece/nephew on the way in 2020.
…
He will miss out on seeing and losing the close bond with his godson, niece, little brother-in-law [presumably a reference to Ms Tran’s minor brother] and our two dogs.
Joshua Thompson provided a statutory declaration (Exhibit A17). The only reference to the children in that statutory declaration was at para 6 wherein Mr Thompson said:
William cares so much for my children, his godchildren, and I wouldn’t want him to miss out on them growing up. We have put [L]’s christening off while waiting for William to come home so he can be part of it as he was with [N]’s.
Mr Thompson also provided a letter in support of the Applicant’s request to the Department to revoke the cancellation (Exhibit R1, G23). The only reference in that letter to the children was to the fact that the Applicant was the godfather to Mr Thompson’s son and that the Applicant “is one of the very few people [he] trust[s] to look after him”.
The Applicant’s brother, Samuel Nahi, provided a statutory declaration (Exhibit A21). The Applicant identified in his Personal Circumstances Form submitted with the request for revocation, that Samuel is the father of the Applicant’s niece (Exhibit R1, G15/67). Samuel Nahi, however, made no reference to his children in his statutory declaration.
In his Personal Circumstances Form the Applicant referred to his having baby sat his niece and how much he loves her. He says that it hurts him to think that he will not be able to see her grow up and that he is more than happy to help his niece’s parents to take care of her. He also refers to his brother Samuel and his wife expecting a baby shortly. The Tribunal assumes that that expected child is the Applicant’s nephew.
None of the statements referred to above assists the Tribunal in assessing the factors identified in paragraph 13.2(4) of Direction 79.
This lack of evidence was raised by the Tribunal with the Applicant’s counsel. The Tribunal took Ms Watts to paragraph 13.2(4) of Direction 79:
TRIBUNAL: … if I take you to paragraph 13.2, which details the matters to be taken into account by the tribunal in considering the best interests of the minor children; and 4 sets out a whole set of criteria that are to be considered in looking at the best interests of the children. So things like the nature and duration of the relationship; the extent to which the non-citizen is likely to play a positive parental role in the future; the impact of the non-citizen’s prior conduct, if any on the - and future conduct; the likely effect that any separation from the non- citizen would have on the child; and so on. I just can’t see where there’s any evidence which would assist the tribunal in considering any of those factors. All we have, really, is a reference to - in Mr Thompson’s statutory declaration to the fact that he is the godparent to two of his children, and that William cares so much for those children. Again, there’s nothing there about any of the matters relevant to this consideration as set out in direction 79. Similarly, I can’t see anything in any statement from the applicant’s brother relating to the relationship between the applicant and his nephews and nieces, and the various matters set out in direction 79 paragraph 13.3, 13.2(4).
MS WATTS: Yes, Deputy President. We accept that that - - -
TRIBUNAL: Yes, okay. As long as I’m not overlooking something. So that’s the two - are their any other minor children? Sorry, there’s the applicant’s partners 7 year old younger brother, and I think there is reference in Ms Tran’s statutory declaration to that.
MS WATTS: And there’s additionally - there’s evidence that’s been provided today about William supporting Megan’s mum and [M]. They’ve lived with him and he has financially helped them during times when the marriage - when his parents split up, and the intention is that he would be living in the same home with them.
TRIBUNAL: When you say “them”, is that Megan’s mother and her 7 year old son, sorry?
…
TRIBUNAL: But where would I see what the relationship - I know there was oral evidence given today, but I’m just - Ms Tran, as far as I can work out, doesn’t really touch on that in her statutory declaration that I can see. She talks about a wish to raise their children - which I presume is future children.
MS WATTS: She doesn’t mention [M] in her statutory declaration.
TRIBUNAL: No, okay. So, I just didn’t want to overlook anything that I am required to take into account.
In the Tribunal’s view there is insufficient evidence for the Tribunal to make any informed assessment of the matters identified in paragraph 13.2(4) of Direction 79 or to make a finding that it would be in the best interests of any minor children in Australia to revoke the cancellation of the Applicant’s visa. Insofar as there was oblique reference in Ms Tran’s oral evidence to her mother and younger brother living with the Applicant, that information was not set out in a written statement given to the Respondent at least two business days before the hearing so, even if it were of some probative value, and the Tribunal considers it not to be, the Tribunal cannot have regard to that information in any event by reason of
s 500(6H) of the Act.
This second primary consideration does not weigh in favour of the revocation of the cancellation of the Applicant’s visa.
Third primary consideration: Expectations of the Australian community (para 13(2)(c))
Paragraph 13.3 of Direction 79 provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The Tribunal also refers to the principles and expectations set out in paragraph 6.3 of Direction 79 (see [23] above).
The proper construction of paragraph 13.3 of Direction 79 has been the subject of much judicial analysis. The starting point for most of the recent analysis was Mortimer J’s decision in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (YNQY). The two approaches that emerged following her Honour’s decision in YNQY were the so-called broad approach of the type taken by Griffiths J in DKXY v Minister for Home Affairs [2019] FCA 495 (DKXY) and the so-called narrow approach of the type taken by Perry J in FYBR v Minister for Home Affairs [2019] FCA 500 (FYBR) (for an analysis of those approaches see [99]–[114] of Pinder and Minister for Home Affairs [2019] AATA 1398).
That debate as to which approach is correct appears to have been resolved by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (FYBR (FC)). The Full Court, in effect, found that the narrow approach taken by Mortimer J in YNQY and by Perry J in FYBR is the correct approach. That is the approach that the proper characterisation of this consideration is a “kind of deeming provision” – expressing “an expectation deemed by the government to be held by the Australian community” (FYBR (FC) at [61] and [80] per Charlesworth J; see also Stewart J at [89]). A thorough analysis of the Full Court decision in FYBR (FC) is set out by Member Burford at [162]–[170] in her decision in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424 (Rehman). See also decisions of the Hon. John Pascoe AC CVO, Deputy President in Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3445 at [77]–[78].
Special leave was sought to appeal the decision in FYBR (FC). On 24 April 2020 the High Court (Kiefel CJ and Keane J) refused special leave (FYBR v Minister for Home Affairs & Anor [2020] HCATrans 56).
Justice Stewart in FYBR (FC) found at [89]–[91]:
It is therefore to be expected that the Government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting “community expectations” then, in that sense, they might accurately be understood as “deeming” what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one or even necessarily dominant set of community expectations in this field.
However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 420-422; 24 ALR 577 at 590-591 at 590-591 per Bowen CJ and Deane J; Bread Manufacturers of NSW v Evans 180 CLR 404 at 429-430 per Mason and Wilson JJ; CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 at [37] per French CJ and [292] per Kiefel J.
The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case – they are to be understood and applied normatively.
Justice Charlesworth FYBR (FC) also observed:
75Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
…
79 … The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) “generally” provides, as he or she is permitted to do. Read as a whole, the reasons of the primary judge should not be understood as suggesting otherwise.
Member Burford put it in Rehman as follows at [173]–[174]:
It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government’s view deeming the expectations of the Australian community to be that the Applicant, having committed a serious crime, should not hold the visa. Those expectations remain a primary consideration to which appropriate weight must be given. As expressed, or “deemed” in the Direction, they weigh against revocation with respect to “serious crimes”.
However, it remains for the Tribunal to determine what constitutes appropriate weight to be given to this consideration in the ultimate decision. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other consideration.
While s 501(7) dictates that the Applicant has a substantial criminal record, there is only one offence for which the Applicant has been sentenced to imprisonment. The Applicant’s offending has been in two episodes separated by a period of over two years. It is also the case that the Applicant was relatively young when he committed the offences, certainly the earlier offences, that he was addicted to cannabis at the time and that he has contributed to the community through employment and his family and social ties are in Australia. In these circumstances, while the consideration must weigh against revocation of the cancellation of the Applicant’s visa, only minor weight in favour of the revocation of the decision to cancel the visa should be given to this consideration.
OTHER CONSIDERATIONS
Paragraph 14 of Direction 79 provides:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
International non-refoulement obligations (para 14(1)(a))
The Applicant is a citizen of New Zealand. This is not a relevant consideration in this matter.
Strength, nature and duration of ties (para 14(1)(b))
Paragraph 14.2 of Direction 79 is as follows:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant has lived in Australia for over ten years, since the age of 14. He lived in New Zealand for the first 14 years of his life and has since travelled back to New Zealand a number of times (Exhibit R1, G10). He arrived in Australia with his parents, two brothers and a sister. His parents and siblings, nephew, niece and godchildren all live in Australia (Exhibit R1, G15/68).
The Applicant’s SFIC (paras 54–61) claims the following ties that the Applicant has to Australia and the family and other links to Australian residents:
·The Applicant came to Australia with his parents and three siblings in 2010. They are a close and committed family as evidenced by their statutory declarations, participation in the District Court proceedings, pictures and visitation records to both Hakea Prison and Yongah Hill Immigration Detention Centre.
·The Applicant attended high school in Australia where he achieved high marks in English and maths and completed a number of vocational certificates to Australian standards.
·The Applicant is currently undertaking an apprenticeship as a carpenter, this involves attending TAFE and participating in ‘on the job training’. His apprenticeship remains available to him upon his release. Additionally, his professional skills will be in demand in Australia. The Tribunal notes that the evidence at the hearing was that the Applicant had not started his carpentry apprenticeship (transcript at 25–26) but intended to and that he had worked as a labourer for his father who is a carpenter.
·The Applicant has an Australian fiancé who has been his long-term partner for the last eight years. They are planning to be married in June 2021. They have a deep commitment to one another and plan to start a family and build a home in the near future.
·The Applicant is close to his fiancé’s family. He has in the last five years lived with them and supported the running of their household financially and through chores. This claim, in the Tribunal’s view, was not born out by the evidence at the hearing nor was it supported by the statutory declarations and other written evidence presented. In relation to the Applicant’s closeness to Ms Tran’s family, the Tribunal observes the property in Girrawheen was the first of the properties searched by police on 3 July 2018 and that it was at that residence that considerable amounts of cannabis were found in various locations throughout the house (see [36]-[39] above). The Tribunal also notes that the Applicant’s and Ms Tran’s evidence at the hearing was that he smoked cannabis with Ms Tran’s brother, H Tran (Applicant’s evidence, transcript at 25; Ms Tran’s evidence, transcript at 39). H Tran was at the Applicant’s Landsdale residence when police executed the second Misuse of Drugs Act search warrant on 3 July 2018 (Exhibit R2/139), and H Tran was with the Applicant at Beatty Park Leisure Centre when the police raided resulting in the charges (outstanding) relating to the supply of 1.95kg of MDMA (see also [43] above) (transcript at 26; see also Parole Addendum Exhibit R2, 55).
·The Applicant has a number of significant Australian minors who are reliant upon his presence in their lives, he wants to be an example to them. He wants to show them that he is someone who has made mistakes but will demonstrate positive and meaningful change in his life. This claim is not supported by the evidence. There is certainly no evidence to support the claim that any minor is reliant on the Applicant’s presence in their life. As noted earlier, and as conceded by Ms Watts at the hearing (see [83] above), there was no evidence, other than general statements of a desire to be supportive in the future in the Applicant’s Personal Circumstances Form (Exhibit R1, G15/67) to support this claim.
·The Applicant has a good record of employment, he has maintained retail, fast food and more recently trade and construction positions since leaving school.
Although not identified by the Applicant in his SFIC, the Tribunal also accepts that the Applicant’s parents clearly love the Applicant and want to support him. The Tribunal accepts that the bond between the Applicant and his parents is strong and that there would be a very significant emotional impact on them if the Applicant were to be removed from Australia. The Tribunal also accepts that the Applicant’s removal would have a significant emotional impact on Ms Tran, whose evidence was that she suffers from anxiety (transcript at 37).
The Respondent (SFIC para 48) accepts that the Applicant has many family members in Australia and that “all of these family members, understandably, wish for the applicant to be able to continue residing in Australia”. The Respondent says, however, that even if the Tribunal accepts that this consideration weighs in favour of the revocation of the cancellation of the Applicant’s visa, “it does not outweigh the other primary considerations weighing heavily in favour of non-revocation”. That submission, with respect, does not reflect the exercise to be undertaken by this Tribunal. It is not a question of whether one consideration, primary or other, outweighs any other consideration or considerations. The exercise to be undertaken by the Tribunal is that described in more detail in [113]–[116] below. The exercise is to give weight to each of the considerations, both those for revocation and those against revocation, and then to balance all of the considerations, guided by Direction 79, in particular the principles set out in paragraph 6.3, and come to a decision as to whether there is “another reason why the original decision” to revoke the original decision under s 501(3A) should be revoked.
The Tribunal finds that this consideration weighs in favour of revocation of the cancellation of the Applicant’s visa and that moderate weight should be given to this consideration.
Impact on Australian business interests (para 14(1)(c))
Paragraph 14.3 provides:
(1)Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant’s SFIC submits that:
·the Applicant is employed by his father as an apprentice carpenter (as noted above, that is not correct, the Applicant was employed as a labourer), he is an integral part of his business and part of his father’s retirement considerations. The purpose of retaining self-employment for the Applicant’s father was to fulfill his dream of having a family owned and operated business;
·the Applicant’s father stated that he has accepted a number of rural and regional contracts for commercial and residential work. He considers this to be positive for his business and he did so thinking he would be able to develop the Applicant into a position of management once his apprenticeship was concluded (the Tribunal again notes that the evidence at the hearing was that the Applicant had not started his carpentry apprenticeship);
·the family business employs four people; and
·the Applicant’s removal will have an impact on the Applicant’s father’s family business.
The Applicant’s father gave evidence that he wanted the Applicant to eventually take over the family business (transcript at 46). The Applicant had worked as a labourer in that business and it was his intention, supported by his father, to commence an apprenticeship as a carpenter in the business.
In closing the Respondent’s counsel submitted that:
… that simply doesn’t rise to the level which should be given any real weight as set out in the direction at 14.3. In this respect, the applicant is employed - or has been employed in the past as a labourer in the business, and it should be accepted by the tribunal that if the applicant were removed his father could employ someone else in that position, such that it wouldn’t impact on the business interests. It may impact on the personal interests that his son carry on the business.
The Tribunal agrees with the Respondent’s counsel’s submission. While the Applicant’s father’s desire is totally understandable, his son’s removal from Australia would not have an impact on business of the magnitude or type that would give rise to this consideration being relevant. There was no suggestion, and certainly no evidence, that the role played by the Applicant when he was employed as a labourer could not be taken by another person. The Applicant’s father’s business has continued in the Applicant’s absence since his incarceration. The personal impact that the Applicant’s removal may have on his father’s wishes for a family business is not the sort of impact on business to which this consideration is aimed and it would certainly not significantly compromise the delivery of a major project, or delivery of an important service in Australia.
Extent of impediments if removed (para 14(1)(e))
Paragraph 14.5 of Direction 79 provides:
(1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The non-citizen’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
The Applicant’s SFIC (paras [62]–[64]) identifies the following as impediments that the Applicant would encounter:
·the Applicant would be challenged to start a new life in New Zealand without any immediate family support. He will find it difficult to find work as he is not yet qualified in his trade and does not have any work experience and professional contacts in New Zealand;
·the current COVID19 pandemic would impact upon the Applicant’s capacity to find work, home and establish himself socially in New Zealand, this should be considered in the context of his medical conditions, which include anxiety;
·in consideration of his age, lack of professional qualifications, inexperience in his career, lack of family support and mental health concerns the consideration must weigh in favour of the revoking the cancellation of the Applicant’s visa.
The Respondent says (Respondent’s SFIC paras [50]–[53]) that:
·as a citizen of the New Zealand, the Applicant will have the same access to social, medical and economic support as other citizens. There is no suggestion that those support systems are inadequate. It is “common knowledge” that the standards of health care, education, social welfare and housing support in New Zealand would be comparable to those in Australia citing Webb v Minister for Home Affairs [2020] FCA 831 at [100] per Anastassiou J.
·there is no evidence to suggest that the Applicant has explored employment options that may be available to him in his home country. The Applicant would have the same employment rights as other citizens of New Zealand.
·New Zealand will also not present any substantial language or cultural barriers to the applicant’s reintegration.
The test under this consideration is whether there are impediments to the Applicant establishing himself and maintaining basic living standards, in the context of what is generally available to other citizens of New Zealand. Although there is evidence that the Applicant suffers or has suffered anxiety and depression, there was no evidence that that would prevent the Applicant from finding work in New Zealand or maintaining basic living standards. The test is not whether he would be better off in Australia or whether it will be easier to re-establish himself in the Australian community than it would be to establish and maintain himself in New Zealand (which would always be the case), it is whether there are any impediments that the non-citizen may face in establishing himself and maintaining basic living standards. While separation from his family will undoubtedly cause the Applicant emotional hardship, and he will not have their direct emotional support, that is not an impediment of the type to be considered under this paragraph of the Direction. Clearly there are no language or cultural barriers and the Applicant does not contend that there are. The Applicant does not contend, and there is no evidence that he would not be entitled to the same social, medical and/or economic support available to other citizens of the New Zealand. He is young and physically fit.
In the end there is no reason to believe, and certainly no evidence was presented by the Applicant to support a claim, that he would not be able to establish himself and maintain basic living standards (in the context of what is generally available to other citizens of New Zealand). This consideration does not weigh in favour of revocation of the cancellation of the Applicant’s visa.
The Weighing Exercise
Guidance is given by Direction 79 as to how the decision maker should apply the primary and other considerations. Paragraphs 8(3) to (5) of Direction 79 are relevant. They provide:
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under Direction 65, the same considerations apply to the exercise required by Direction 79 which is materially in the same terms. The Tribunal is guided by Colvin J’s judgment in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; (2018) 74 AAR 545 and the Full Court of the Federal Court decision in Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591.
The Tribunal in CZCV at [164] summarised the legal position following the various cases referred to above as follows:
Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no. 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so. ...
The Tribunal agrees with the approach directed by the above cases.
Looking at the first primary consideration, the protection of the Australian community, the relevant consideration is whether the risk is an unacceptable one taking into account the nature and seriousness of the harm that would be caused if there was a repeat of the behaviour and the likelihood of that occurring. For the reasons set out above, the Tribunal assesses the likelihood of the Applicant engaging in further criminal or other serious conduct as moderate. Taking into account the harm that would be caused to the community if the Applicant were to engage in further criminal or other serious conduct, this consideration weighs against the revocation of the cancellation of the visa. Moderate weight should be given to this consideration.
The Tribunal finds that the second primary consideration, the best interests of minor children, in this case for the reasons set out in [73]-[84] above, does not weigh in favour of the revocation of the cancellation of the Applicant’s visa.
The third primary consideration, the expectations of the Australian community, as it must in light of FYBR (FC), weighs against the revocation of the cancellation of the Applicant’s visa. For the reasons set out in [94] above only minor weight should be given to this consideration.
In relation to the “other considerations” identified in Direction 79, the consideration of strength, nature and duration of the ties that the Applicant has to Australia, weighs in favour of the revocation of the cancellation of the visa. For the reasons set out earlier in this decision moderate weight should be given to this consideration.
The other considerations of the impact on Australian business and the impediments that the Applicant would face if he is returned to the New Zealand, do not, for the reasons set out above, weigh in favour of revocation of the cancellation of the Applicant’s visa.
Having undertaken the weighing of the consideration for and against the revocation of the cancelation of the Applicant’s visa, the Tribunal finds that the considerations which weigh against the revocation of the cancellation of the visa, in particular the first primary consideration; the protection of the Australian community, and the third primary consideration; the expectations of the Australian community, outweigh the considerations which weigh in favour of the revocation of the cancellation of the Applicant’s visa. Accordingly, the Tribunal finds that there is not another reason why the original decision should be revoked.
DECISION
The decision of the delegate of the Respondent dated 18 November 2020 not to revoke the mandatory cancellation of the Applicant's Class TY Subclass 444 Special Category (Temporary) visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) is affirmed.
I certify that the preceding 123 (one hundred and twenty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
...[SGD]..................................................................
Associate
Dated: 10 February 2021
Date of hearing: 2 February 2021 Counsel for the Applicant: Ms Eve Cassandra Watts Representatives for the Applicant: Inclusive Migration Australia Counsel for the Respondent: Mr A Burgess Solicitors for the Respondent: Sparke Helmore Lawyers
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