Neilson and Minister for Immigration and Border Protection (Migration)
[2016] AATA 747
•31 August 2016
Neilson and Minister for Immigration and Border Protection (Migration) [2016] AATA 747 (31 August 2016)
Division
GENERAL DIVISION
File Number
2016/1032
Re
Ronald Neilson
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Deputy President Dr P McDermott RFD
Date 31 August 2016 Date of written reasons 27 September 2016 Place Brisbane I affirm the decision under review.
...................................[sgd].....................................
Deputy President Dr P McDermott RFD
CATCHWORDS
MIGRATION – cancellation of visa on character grounds – applicant has a serious criminal record – the protection of the Australian community from criminal or other serious conduct relevant – best interests of minor children relevant – expectations of Australian community not met – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
Migration Regulations 1994 (Cth) reg 17
Australian Citizenship Act 2007 (Cth) ss 37, 52
CASES
Re Milnar and Minister for Immigration and MulticulturalAffairs (1997) 48 ALD 771
Lee and the Minister for Immigration and Citizenship (2011) 199 FCR 336
Kim and Minister for Immigration and Border Protection [2016] FCA 959
SECONDARY MATERIALS
Direction No 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
27 September 2016
INTRODUCTION
This is an application for a review of a decision of a delegate of the Minister for Immigration and Border Protection (“the respondent”) dated 9 February 2016 to not revoke the cancelation of the Class TY Subclass 444 Special Category (Temporary) visa of Mr Ronald Neilson (“the applicant”) pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”). This Tribunal has jurisdiction to review the decision of the delegate under s 500(1)(ba) of the Act.
BACKROUND
In 1992 the applicant was born in Australia to New Zealand citizen parents.[1] On 19 July 1996 he left Australia with his mother. On 18 March 1998 he re-entered Australia.[2]
[1] Exhibit A, T-Documents, T15 at p. 33.
[2] Exhibit A, T-Documents, T3 at p. 5.
On 1 September 1994 he was granted a Special Category (Temporary) visa pursuant to reg 17 of the Migration Regulations 1994 (Cth).
On 9 May 2011 the applicant was convicted of one count of grievous bodily harm and one count of aggravated robbery. He was sentenced to four years of imprisonment on each count to be served cumulatively.[3] On 16 December 2011 the Queensland Court of Appeal varied the sentence by deleting the orders that the sentences are cumulative and fixing a parole eligibility date of 9 May 2015.[4]
[3] Exhibit A, T-Documents, T57 at p. 502.
[4] Ibid at p. 506.
On 12 December 2014 the respondent cancelled the applicant’s Class TY Subclass 444 Special Category (Temporary) visa (“visa”) pursuant to s 501(3A) of the Act.[5] The respondent was satisfied that the applicant does not pass the character test because he has a substantial criminal record.
[5] Exhibit A, T-Documents, T12.
On 25 May 2015 the applicant was convicted of four counts of possessing dangerous drugs and one count of possessing utensils or pipes used for drugs. He was sentenced to six months imprisonment which was suspended upon him entering recognizance to be of good behaviour for a period of three years. He was also convicted of one count of unlawful possession of restricted drugs for which no further penalty was imposed.[6]
[6] Exhibit A, T-Documents, T53 at p. 466.
On 11 August 2015 the applicant made representations pursuant to s 501CA of the Act seeking revocation of the cancellation decision.[7]
[7] Exhibit A, T-Documents, T47-50.
On 9 February 2016 a delegate of the respondent decided not to revoke the decision to cancel the applicant’s visa.[8] On 26 February 2016 the applicant lodged an application with this Tribunal for a review of the decision.[9]
[8] Exhibit A, T-Documents, T57.
[9] Exhibit A, T-Documents, T1.
On 18 April 2016 the applicant was voluntarily removed from Australia.[10]
[10] Exhibit B, Supplementary T-Documents, ST5.
JURISDICTION
The jurisdiction of this Tribunal is a jurisdiction which is conferred by statute. The Tribunal has jurisdiction to review the decision of the delegate of the respondent dated 9 February 2016 under s 500(1)(ba) of the Act.
One of the matters in contention is whether this Tribunal has jurisdiction to review a decision of a delegate of the respondent dated 15 April 2016. On that date the delegate found that the applicant was not eligible to be given notice that he is an Australian citizen under s 37 of the Australian Citizenship Act 2007 (Cth) (“the Citizenship Act”).[11]
[11] Exhibit B, Supplementary T-Documents, ST6.
Foster J in Lee and the Minister for Immigration and Citizenship (2011) 199 FCR 336 explained how s 52 of the Citizenship Act specifies the decisions which may be reviewed on their merits by this Tribunal. His Honour stated at 348 that:
A decision to decline to issue an evidentiary notice under s 37 is not such a decision. There is no formal merits structure in place in respect of such a refusal. For this reason, an applicant for a s 37 notice who is dissatisfied with a decision by the Minister to refuse to issue such a notice must resort to judicial review in order to attack the decision.
Gleeson J held in Kim and Minister for Immigration and Border Protection [2016] FCA 959 that the avenue of judicial review is available and that an applicant can seek relief under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) in the form of a declaration. The Tribunal has provided a copy of this decision to Mr and Mrs Souter.
This Tribunal does not have jurisdiction to review the decision to decline to issue an evidentiary notice under s 37 of the Citizenship Act.
CHARACTER TEST
Substantial criminal record
Section 501(6)(a) of the Act provides that a person does not pass the character test if he or she has a substantial criminal record. Section 501(7)(c) of the Act provides that a person has a “substantial criminal record” if he or she has been sentenced to a term of imprisonment for a period of 12 months or more.
On 16 December 2011 the Queensland Court of Appeal varied the applicant’s sentence, ordering that he serve two periods of four years of imprisonment concurrently. Section 501(7A) provides that if a person has been sentenced to multiple terms of imprisonment to be served concurrently, the whole of each term is to be counted in determining the total of the terms for the purposes of the character test. As the applicant was sentenced to a period of imprisonment totalling eight years, he has a substantial criminal record under s 501(7)(c) of the Act and does not pass the character test.
MINISTERIAL DIRECTION
Section 499 of the Act empowers the respondent to give written directions about the performance of functions and the exercise of powers under the Act. The effect of this section is that the Tribunal must comply with Ministerial Direction No 65 (Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA) (“the Direction”). The Direction commenced operation on 22 December 2014 and remains in force.
The Preamble provides that the objective of the Act is to regulate, in the national interest, the coming into, and presence in Australia of non-citizens. An objective of the Direction is to provide a framework within which decision-makers approach their decision of whether to revoke a mandatory cancellation under s 501CA of the Act.[12]
[12] Direction No 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA at [6.1(4)].
The Preamble specifies seven principles which provide a framework within which decision-makers should approach their specific task:[13]
(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 vulnerable members of the community such as minors, 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.
[13] Ibid at [6.3].
Paragraph 8 of the Direction provides:
…
(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.
In deciding whether to revoke the mandatory cancellation of the applicant’s visa, paragraph 13(2) of the Direction provides 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.
I will consider each of the primary considerations in turn.
Primary consideration A – The protection of the Australian community from criminal or other serious conduct
Paragraph 9.1(1) of the Direction provides:
When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
Paragraph 9.1(2) of the Direction provides that 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.
It is fair to say that as a minor the applicant had quite an extensive history of offending. On 7 July 2005 the applicant was charged with theft, but no conviction was recorded, and he was released on a good behaviour bond for six months.[14]
[14] Exhibit A, T-Documents, T6 at p. 10.
On 11 December 2008 the applicant was charged with two offences: robbery whilst in company and robbery with actual violence – armed/in company/wounded/used personal violence. No conviction was recorded on all charges and a one year probation order was made.[15]
[15] Exhibit A, T-Documents, T4 at p. 7.
On 15 April 2009 he was charged with stealing. No conviction was recorded and he was reprimanded and ordered to pay $350 in restitution.[16]
[16] Ibid.
On 19 February 2010 he was charged with a breach of bail condition. There was no conviction and he was fined $400.[17] On 2 March 2010 there was a further breach of bail charge. There was no conviction and no further penalty was imposed.[18]
[17] Ibid.
[18] Ibid.
On 9 May 2011 the applicant was found guilty by a jury of one count of grievous bodily harm and one count of aggravated robbery.[19] The sentencing judge stated that the applicant was convicted of “two extremely serious offences”, noting that the maximum punishment for the offences was 14 years imprisonment and life imprisonment respectively.[20]
[19] Exhibit A, T-Documents, T57 at pp. 496-502.
[20] Exhibit A, T-Documents, T57 at p. 497.
The circumstances of the applicant’s offences were also discussed by the Queensland Court of Appeal by Mullins J who remarked that:[21]
The two complainants for the offences were also 17 years old and were out with friends, walking along a street at Southport at about 9:30 pm. The applicant was with another group of young people. The complainants’ group divided, as they noticed the applicant’s group approaching.
A common thread of evidence given at trial was that the applicant’s group began grabbing at the bags of the girls in the complainants’ group and the complainants group began to defend themselves and the girls in their group. Ultimately, the complainant for the count of grievous bodily harm (the first complainant) was struck in the region of his left eye by the applicant wielding what appeared to be a metal pole (from a shopping trolley). He suffered multiple facial fractures. The applicant accepted the injuries amounted to grievous bodily harm on the basis that, without treatment, there would have been some permanent effects from the injuries.
The second complainant was helping the girls, when he was hit and fell to the ground. As the second complainant was getting to his feet, his mobile telephone and wallet were taken by the applicant. The second complainant was able to snatch his telephone and wallet back immediately from the applicant. He was then struck on his right collar bone. That was followed by another strike to his left hand, as he tried to shield his face, which he described as dislocating his hand. The strikes to the second complainant’s collar bone and hand were inflicted by the applicant with what appeared to be the metal pole. Another male in the applicant’s group took the second complainant’s cap, and the applicant and those in his group ran off.
The applicant gave evidence at the trial in which he admitted to being present at the time and place of the assaults on the complainants, but denied that he was the one who had struck the complainants with the metal pole and identified two of his companions as the assailants.
[21] Exhibit B, Supplementary T-Documents, ST6 at pp. 760-761.
At the hearing of these proceedings the applicant disputed the facts of the offences as outlined by the sentencing judge. The difficulty that I am faced with is that there has been a long line of decisions of this Tribunal which have outlined the limitations of my jurisdiction. Deputy President Chappell explained in Mlinar and Minister for Immigration Multicultural Affairs (1997) 48 ALD 771 at 776 that this Tribunal cannot make findings that contradict, or go behind, a conviction.
In any event, there is no cogent evidence before me which contradicts the facts set out in the sentencing remarks. The sentencing judge observed that:[22]
You pleaded not guilty. Your defence, in my view, was fanciful and the jury took about half an hour to reject it and in my view quite rightly so.
[22] Exhibit A, T-Documents, T57 at p. 499.
In considering the nature and seriousness of the applicant’s conduct, I have taken into account the impact of the offences on the victims. The sentencing judge observed that:[23]
…you used a metal bar. You swung that bar with considerable force at the face of the first complainant, smashing his face and then with considerable force at the collarbone and hand, aiming at, it would appear, with the second blow, his face. His hand stopped that from connecting and as I’ve said, his hand was dislocated.
…
You left the scene, you ran away without any consideration for your victims.
…in relation to Mr Nicoloff, your attack was unprovoked and surprising… The fact, in relation to count 2, that you obtained the property, Mr Scott’s wallet and mobile phone for only a short time is little consolation in all of the circumstances.
[23] Ibid at p. 497.
A victim impact statement that was read out by the sentencing judge included these remarks:[24]
I couldn’t eat properly nor see out of my left eye for two weeks. Facial reconstructive surgery was needed to put my face back together requiring 10 titanium plates permanently in my skull. I had to take pain killers to ease the pain throughout the whole process. The fact that I was hit by surprise for no apparent reason haunts me to this day. I get very cautious of people that I see that might have the opportunity to harm me or somebody else. It feels like my trust for strangers has been violated in a way. Paranoid thoughts, thinking back to how close I was to death always leaves me feeling vulnerable and uneasy. I still, to this day, get nightmares of having similar situations to the one of that night. I find it incredibly hard to be around strangers who look like the ones that were present that night.
[24] Exhibit A, T-Documents, T57 at p. 498.
The sentencing judge stated that the applicant had “shown no remorse whatsoever”.[25] The respondent contends that the applicant’s disputing of the facts of the offence indicates that he is still not remorseful for his actions.
[25] Ibid p. 499.
What concerns me is that the applicant had also been charged with robbery whilst in company and the robbery with actual violence – armed/in company/wounded/used personal violence on a previous occasion on 11 December 2008.[26] Paragraph 13.1.1(1)(d) of the Direction requires me to consider the frequency of the applicant’s offending and whether there is any trend in increasing seriousness.
[26] Exhibit A, T-Documents, T4 at p. 7.
It is my opinion that the primary consideration of the protection of the Australian community from criminal or other serious conduct weighs heavily in favour of not revoking the cancellation of the applicant’s visa. The conduct and the harm that would be caused if the applicant’s previous offending behaviour were to be repeated is so serious that any likelihood that it would be repeated is unacceptable.
On 25 May 2015 the applicant was convicted of four charges of possessing dangerous drugs and one charge of possessing utensils or pipes used for drugs. He was sentenced to a period of six months imprisonment which was suspended upon him entering recognizance to be of good behaviour for three years. He was also convicted of one charge of unlawful possession of restricted drugs for which no further penalty was imposed.[27] The fact that the applicant has committed recent drug offences is a matter which I regard as significant in terms of evaluating the nature of risk. The risk that violent conduct may be repeated in the future is unacceptable for the purposes of the Direction. This risk weighs heavily in favour of not revoking the cancellation of the applicant’s visa.
[27] Exhibit A, T-Documents, T53 at p. 466.
Primary consideration B – The best interests of minor children in Australia
Paragraph 13.2 of the Direction requires me to consider whether the revocation of the cancellation decision is in the best interests of minor children in Australia affected by the decision.[28] The applicant has a large number of relatives in Australia. It appears that the applicant has at least ten nieces or nephews and a number of cousins that live in Australia. The applicant’s stepfather and advocate, Mr Souter, gave evidence about the fact that the applicant had been in regular contact with the nieces and nephews. The respondent quite properly accepts that many of the applicant’s extended family are children and that revocation of the cancellation decision would be in the best interests of the children.
[28] Direction No 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA at [13.2(1)].
The applicant has voluntarily been removed from Australia and is not presently in the position to have any personal contact with any child in Australia.
I find that the primary consideration of the best interests of minor children in Australia weighs in favour of the revocation of the cancellation of the visa.
Primary consideration C - Expectations of the Australian community
The Australian community expects non-citizens to obey Australian laws.[29] Paragraph 6.3(3) of the Direction provides that a non-citizen who has committed a serious crime of a violent nature against vulnerable members of the community, such as minors, should generally expect to be denied the privilege of coming to or forfeit the privilege of staying in Australia.
[29] Ibid at [13.3(1)].
In considering the expectations of the Australian community I have taken into account the observations of the sentencing judge:[30]
Members of the community must be protected from people like you. People are entitled to walk along the footpath in Southport at whatever hour they like without being confronted by a group of thugs consisting of yourself and other people. Public places are not your property. They are not to be regarded as unsafe because of people like you.
[30] Exhibit A, T-Documents, T57 at p. 497.
In this case, I consider that the primary consideration of the expectations of the Australian community weighs heavily in favour of not revoking the cancellation of the applicant’s visa. The Australian community would expect that the applicant should not hold a visa when having regard to his record of offending over a period of time and the fact that there have been recent drug offences.
Other Considerations
Paragraph 14(1) of the Direction provides that I have to consider the other considerations where they are relevant.
Non-refoulement obligations
There are no relevant non-refoulement obligations. The applicant has volunteered to go to New Zealand and there is no suggestion or evidence that he is at risk of a type of harm that would invoke Australia’s international non-refoulement obligations.
Strength, nature and duration of ties
The applicant has spent his entire life in Australia with the exception of a period of under two years during his childhood and from 18 April 2016 onwards when he was voluntarily removed from Australia.[31]
[31] Exhibit A, T-Documents, T3 at p. 5; Exhibit B, Supplementary T-Documents, ST5.
Both of the applicant’s parents reside in Australia. His mother would visit him in New Zealand but she would require a carer to assist her. He has no contact with his biological father. I accept that he is close to his mother and stepfather. His sister and two brothers are in Australia. He also has an extended family in Australia including aunts and uncles, nieces and nephews, as well as cousins.
I find that, after listening to the evidence of the applicant’s mother, that this consideration weighs in favour of revocation of the decision to cancel the visa.
Impact on Australian business interests
There is no evidence before the Tribunal that Australian business interests would be impacted if the cancellation of the applicant’s visa is not revoked. This other consideration is not a matter that weighs either for or against the revocation of the cancellation of the visa.
Impact on victims
There is no evidence before the Tribunal that victims of the applicant’s offences will be impacted by the decision to revoke the cancellation of the applicant’s visa. This other consideration is not a matter that weighs either for or against the revocation of the cancellation of the visa.
Extent of impediments if removed
The applicant stated in evidence that since he was voluntarily removed on 18 April 2016 he has had some difficulty in adjusting to life in New Zealand. However, he has New Zealand citizenship, he is in regular employment and he has accommodation with a relative. I accept what the applicant has said that he has minimal funds because he is on the minimum wage. However, this other consideration is not a matter that weighs either for or against the revocation of the cancellation of the visa.
Other
I am satisfied that there are no further other considerations relevant to deciding whether or not to revoke the cancellation of the applicant visa. I note that under paragraph 14 of the Direction there is a reference to the other considerations not being limited to those set out above, but in my assessment, there are no other considerations which are relevant here.
CONCLUSION
I find that there is an unacceptable risk that the applicant will again commit serious offences if he were allowed to return to Australia. I also consider that the expectations of the Australian community are that he would not be allowed to remain in Australia. These are factors which weigh heavily in favour of not revoking the cancellation of the applicant’s visa.
There are factors which weigh in favour of revoking the cancellation of the visa. These are the best interests of minor children in Australia, and also the strength, nature and duration of the applicant’s ties to Australia. However, these considerations are not outweighed in my assessment by the primary considerations referred to above which weigh heavily in favour of not revoking the cancellation of the applicant’s visa.
My conclusion is that I am satisfied that the applicant does not pass the character test in the Act. Nor am I satisfied that there is any reason why the original decision to cancel the applicant’s visa should be revoked. As such, I affirm the decision under review.
I would like to acknowledge the courtesy of Mr and Mrs Souter who appeared to support the applicant and who had indicated that they are aware of the right of the applicant to seek judicial review of the decision of the delegate to decline to issue an evidentiary notice under s 37 of the Citizenship Act. I might say that I find this a difficult decision having regard to the fact that the applicant was born in Australia. I have given serious consideration to this fact, but I do not consider there is any other conclusion I can reach.
DECISION
I affirm the decision under review.
I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD ................................[sgd]........................................
Associate
Dated 27 September 2016
Date(s) of hearing 31 August 2016 Advocate for the Applicant Mr W Souter Solicitors for the Respondent Mr A Gerrard, Australian Government Solicitor
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Charge
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Restitution
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Statutory Construction
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