Ngatoko and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 1039
•28 April 2021
Ngatoko and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1039 (28 April 2021)
Division:GENERAL DIVISION
File Number: 2020/6085
Re:Junior Ngatoko
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:28 April 2021
Place:Sydney
The decision under review is affirmed and therefore the applicant’s visa remains cancelled.
.............................SGD...........................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
MIGRATION – mandatory cancellation – failure to pass the character test – domestic violence – dispute as to primary facts – protection of the Australian community – best interests of minor children in Australia affected by the decision – expectations of the Australian community – fear of gang violence - non-refoulement - strength, nature and duration of ties to Australia – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Crimes Act 1900 (NSW)
Migration Act 1958 (Cth)
CASES
Commissioner of Police v Bowtell (No. 2) [2018] NSWSC 520
DOB18 v Minister for Home Affairs [2019] FCAFC 63
FYBR v Minister for Home Affairs [2019] FCAFC 185
Harris and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 753
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166
Omar v Minister for Home Affairs [2019] FCA 279
R v Tapaevalu [2019] NZHC 1867
Sergeant Gary Broadhurst v Nomads Motorcycle Club Incorporated [2018] NSWSC 71Tapaevalu v R [2021] NZSC 26
SECONDARY MATERIALS
Direction No. 79 – 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
Emeritus Professor P A Fairall, Senior Member
28 April 2021
INTRODUCTION
The Applicant is a 27 year old New Zealand citizen. On 4 October 2020, he applied to the Administrative Appeals Tribunal (the Tribunal) to review a decision of a delegate of the Minister made on 24 September 2020, not to revoke the mandatory cancellation of his visa, class TY Subclass 444 Special Category (Temporary), issued to him on 16 July 2016.[1] He has not travelled offshore since July 2016.[2]
[1] G2 at p 3.
[2] G24 at p 97.
The Applicant spent most of his first two decades in New Zealand, where he was born. He was raised by his grandparents, who passed away in 2015. He also fathered a child, but has no ongoing contact.
He appears to have spent some of 2015 in Melbourne working for his uncle, before returning briefly to New Zealand.[3] He returned in July 2016 and spent a few months with his sister and her two children in Brisbane before moving to Sydney in November 2016. On his second day in a new job a drop saw fell on his hand causing a serious injury.[4] He received a substantial compensation payout and has not worked since. The injury was very damaging to his physical and mental health.
[3] G24, at p 97; Transcript, 13 April 2021 at 18.
[4] G16 at p 80.
Over the summer of 2017 the Applicant shared a house in Sydney with a New Zealander I will refer to as ET. The Applicant knew ET’s brother from New Zealand.[5] He ‘bumped into’ ET in Sydney, and they decided to share a house - the Applicant, ET and his wife. ET was a patched member of the Nomads outlaw motorcycle gang.[6]
[5] Transcript, 13 April 2021, at 35.
[6] The Nomads are an outlaw motorcycle gang or ‘OMCG’: see Commissioner of Police v Bowtell (No. 2) [2018] NSWSC 520; Sergeant Gary Broadhurst v Nomads Motorcycle Club Incorporated [2018] NSWSC 71.
ET returned to New Zealand in 2017 and became involved in the illegal drug trade. He was murdered in April 2017. His wife was shot several times in the course of the attack but, remarkably, survived with two bullets lodged in her brain.[7] Three individuals are presently serving long sentences in New Zealand for murder and attempted murder.[8]
[7] R v Tapaevalu [2019] NZHC 1867.
[8] Tapaevalu v R [2021] NZSC 26.
The Applicant continued to associate with Nomad club members after ET returned to New Zealand. He became very friendly with another senior member he thought to be a retired leader, and used to drive him around regularly.[9] He became friends with this person. He did not become a full club member, but hung around the fringes. He received several[10] consorting warnings[11] from Strike Force Raptor, the specialised police unit set up to combat organised outlaw motorcycle gangs.
[9] Transcript, 13 April 2021, at 48-49.
[10] S2 at pp 31, 32, 34, 38–39, 40, 42; S21 at p 152.
[11] See Crimes Act 1900 (NSW), s 93X.
In 2017 and 2018 the Nomads were engaged in a turf war with another outlaw motorcycle gang, the Comancheros, and Strike Force Raptor was kept busy keeping the warring parties apart. On several occasions, the car the Applicant was travelling in was stopped and searched. He received further consorting warnings.[12]
[12] S2 at p 34.
His friend, the retired leader, was arrested at some point and the Applicant said that after that he ‘cut all ties’.
Once he got arrested, I think it was back in 2018, I cut all ties, and you know, I started moving on. I move in with my missus. I stopped seeing all of them. Like, you know, I just, like, I just thought the bloke was a good bloke, a good person, you know, despite being in a gang. I just hanged around him. But once he got arrested and he went to gaol, I cut ties and I did not hang around none of them. I moved in with my missus. And yes, moved forward. [13]
[13] Transcript, 13 April 2021, at 49.
In October 2017 the Applicant formed an intimate friendship with Ms V, a social worker.[14] The relationship was unstable and Ms V had cause to call the police on several occasions.
[14] S2 at p 29.
There were a number of incidents in 2018. It appears that his life was unravelling. In February he was found unconscious under a parked motorcar, overdosed on drugs and alcohol. Ms V told police that they were in the process of breaking up, and that he had threatened to kill himself in previous weeks but she did not believe him.[15] He was revived by ambulance officers and taken to hospital. Ms V seemed to believe, understandably perhaps, that the Applicant needed counselling or treatment for his underlying mental health problems.
[15] S2 at p 33.
It seems that the relationship continued for a while. On 16 May 2018 there was another incident. The Applicant got very drunk and went home and had a loud argument with Ms V. This gave rise to a charge of stalk/intimidate.[16] On 11 June 2018 there was another row at home and the Applicant was said to have held Ms V in a bear hug. This gave rise to a second charge of stalk/intimidate.[17] On 22 July 2018 after the Applicant and Ms V attended a cinema, she became concerned about his mental state.[18] On the way home she tried to take him to the Cumberland Hospital. He reacted violently, pulling her out of the driver’s seat and commandeering the car, ultimately leaving her by the side of the road.
[16] G9 at p 35.
[17] G9 at p 35.
[18] G9 at p 36.
On 1 August 2018 the police attended at Ms V’s home in Fairfield to arrest the Applicant. She told police he was not there but allowed them entry.[19] He was found hiding in Ms V’s bedroom.
[19] S2 at p 24.
He was charged on several counts, including common assault (DV), stalk/intimidate, taking his partner’s car without consent, and resisting an officer in execution of duty.
He seems to have been granted police bail and an apprehended violence order (AVO) was put in place, with the usual restrictions on contact.
On 4 October 2018 he appeared for sentence. The magistrate noted that Ms V was there to support him and provide some insight into his afflictions. [20] The magistrate noted:
The defendant's partner, who is present before the Court and the complainant in all of these matters, is now a number of weeks pregnant to the child of the relationship. Mr Fang has, in support of the mitigating factors to which he referred in his submissions, tendered a report of psychologist, Kerry Watson, dated 2 October 2018. That speaks of the defendant having been heavily intoxicated in relation to those offences committed on 16 May 2018 but, more generally speaking, suffering from a depressive disorder of moderate severe symptoms including persistent depressed mood, generalised anxiety, decreased interest in previous enjoyed activities, irritability, agitation, reduced motivation, hopelessness, helplessness; generally matters indicative of a significant deterioration in his mental health. It is said that he has good prospects for rehabilitation and is genuinely remorseful and contrite, although that is to be, in some respects, weighed against the incongruent extracts referred to in the pre-sentence report.[21]
[20] G9 at p 35.
[21] G9 at p 38.
The Applicant was sentenced to twelve months imprisonment with a non-parole period of six months.[22] His parole release date was fixed at 31 January 2019.[23]
[22] G9 at p 40.
[23] G9 at p 40.
I refer to various notes made by corrections and parole staff in anticipation of his release to parole.[24] The notes suggest the following:
·The Applicant had his own accommodation in Parramatta, but Ms V (the victim of his 2018 offending) was living there, and there was an AVO in place; [25]
·Ms V had agreed to move out so that he could live there but as of the day before his release had not done so; [26]
·He had been declined crisis accommodation at Hope Hostel and Providential Homes, crisis accommodation for homeless men, and was not eligible for homelessness support (Link to Homelessness or ‘L2H’) from Family and Community Services; [27]
·As a non-citizen the Applicant was not eligible for crisis accommodation support from Centrelink; [28]
·Cumberland Police confirmed that there were no enforceable AVOs in place for the Applicant; [29]
·He told his parole officer that he did not want to reside with Ms V; [30]
·On the day following his release (1 February 2019) he was suffering from severe suboxone withdrawals; [31]
·He was also attempting to clear an outstanding warrant. [32]
[24] S20 at pp 120-123.
[25] S20 at p 120
[26] S20 at p 120
[27] S20 at p 120
[28] S20 at p 120
[29] S20 at pp 121, 123.
[30] S20 at p 122.
[31] S20 at p 122.
[32] S20 at p 122.
The Applicant was released from prison on Thursday 31 January 2019. It is not clear where he stayed that night. Apart from the pre-release note, there does not appear to be anything else to show that the Applicant had his own accommodation at Parramatta. He told the Tribunal that Ms V rang the Corrections Centre and said that it was okay for him to stay with her, and they met a train station and he went home with her.[33] Ms V seems to have been living at Guildford, which is on the southern side of Parramatta Road.
[33] Transcript, 13 April 2021, at 69.
On Friday 1 February, after his release, he had a meeting with his parole officer, who made the following note:
Initial reporting following his release from custody yesterday. Offender presented as unwell (sweating and glassy eyes) and upon enquired admitted to experiencing withdrawals for ongoing use of suboxone while in custody. Stated that he used it because he was told "time would fly" while in custody. He didnt expect to feel this way afterwards. Has already made an appt to see his GP at Westmead at 1130am. Advised offender that there was a warrant out for his arrest as a result of him not appearing for a court matter. His non attendance as we know it was a result of him being in custody, so he was advised to hand himself into Police and present his parole order which confirms he was in custody during the time he was required to be at court. Offender stated he would do so following his medical appt…
Offender was advised that there are no active AVOs, ie. the non contact AVO between he and his partner is not active which means they could reside together if they wished. He stated he would rather not at this stage, he just wants to be on his own... [34]
Advised UL Tucker of offender's admissions to withdrawing from suboxone which he was using while in custody, and his intention to remain off this drug since his release. Advised also that there are no active AVOs that would prohibit the offender from contact or residing with his partner Natasha however offender reports she has moved out and he resides there alone would like it to remain that way (emphasis added) [35]
[34] S20 at pp 121,122.
[35] S20 at p 123.
Despite his recorded intention not to resume cohabitation with her, and to ‘be on his own’ and ‘get away from his old life’, it appears that the Applicant and Ms V resumed their relationship.
On Friday 1 February, they went together to Fairfield Shopping Centre in the early evening, where according to a Police Statement, they had a public row. They returned home and the arguing continued. He said that they were arguing about money because he had received some money and she spent it.[36] The Police Notes suggest that the source of conflict related to their relationship and whether Ms V was seeing other men. He deleted her phone contacts and took her phone. These events gave rise to a charge of stalk/intimidate.[37]
[36] Transcript, 13 April 2021, at 69, 70.
[37] S15 at p 91.
At some point that evening she called the police and inquired whether there was an active AVO in place. She did not give her address and the police were concerned about her safety.
The following evening, at around 6 pm on 2 February 2019, events occurred which led to his arrest on various charges.[38] The Police Notes suggest that at around 6 pm Ms V went into the back yard of her Guildford residence and screamed for help. Police were alerted (presumably by the neighbours) and attended the property. Their door knocking went unheeded, and fearing for the safety of Ms V, special police were called to secure entry. The Applicant was found upstairs in the bedroom. He was arrested and charged with common assault. Ms V had a minor injury to the nail bed of her finger (the artificial nail having become detached).
[38] S15 at p 93.
According to the Police Notes, Ms V told the police that she had not responded to their door knocking because she feared for her safety.
The Applicant was taken into custody and has been on remand, undergoing sentence, and then in immigration detention, since 2 February 2019.
The Applicant was charged with various offences including common assault (DV), resist officer in execution of duties, and stalk/intimidate. He was on remand for more than twelve months. Eventually, he pleaded guilty and came up for sentencing on 20 February 2020.[39]
[39] G10 at p 42.
On 20 February 2020, he was sentenced in the Local Court of New South Wales to an aggregate term of twenty months imprisonment with the non-parole period of fifteen months expiring on 2 May 2020.[40] He was sentenced on the basis that he intimidated Ms V in a shopping centre, and assaulted and intimidated her in her townhouse and damaged a wall by punching it, and shortly thereafter resisted police.
[40] S13 at p 79; G10 at p 42.
The learned magistrate noted that these offences occurred within 24-48 hours of being released from prison on parole, and that there were no special circumstances. The magistrate sentenced him to twenty months with a non-parole period of fifteen months.[41]
[41] G10 at p 42.
On appeal, the Parramatta District Court confirmed the orders made on 4 October 2018.[42]
[42] S1 at pp 4–7, pp 10–11.
VISA CANCELLATION
On 21 April 2020, a delegate of the Minister, being satisfied that he had a substantial criminal record, cancelled his visa under paragraph 501(3A) of the Migration Act 1958 (Cth) (the Migration Act).[43] When the non-parole period expired on 2 May 2020, he was transferred to Villawood Immigration Detention Centre.[44]
[43] G11 at p 44.
[44] S20 at p 147.
Under section 501CA(4) of the Migration Act a visa holder who has lost his or her visa may have it restored if the Minister is satisfied that even though he or she fails the character test, there is ‘another reason’ why the mandatory cancellation decision should be revoked.
On 24 September 2020, a Delegate of the Minister considered whether to revoke the mandatory cancellation under section 501CA(4).
The Delegate referred to the National Coordinated Criminal History,[45] noting that the Applicant was convicted on 4 October 2018 in the Local Court of New South Wales of:
• Common assault (DV) (three counts) – three months imprisonment, 10 months imprisonment and 12 months imprisonment respectively for each count
• Stalk/intimidate intend fear physical etc harm (domestic) (three counts) – three months imprisonment, 10 months imprisonment and 12 months imprisonment respectively for each count
• Contravene prohibition/restriction in AVO (domestic) (two counts) – 12 months imprisonment for each count
• Take & drive conveyance w/o consent of owner – three months imprisonment
• Fail to appear in accordance with bail acknowledgement (two counts) – conviction with no penalty
• Drive motor vehicle during disqualification period -2nd+off – three months imprisonment
[45] G7 at p 33.
The Delegate also noted that he was convicted on 20 February 2020 in the Local Court of New South Wales of:
· common assault (DV),
· resist officer in execution of duty,
· two counts of stalk/intimidate intend fear physical etc harm (domestic).
· Destroy or damage property <=$2000 (DV), Mr NGATOKO was sentenced to an aggregate term of 20 months imprisonment, with a non-parole period of 15 months.
On 24 September 2020, the delegate made a decision not to revoke the mandatory cancellation (‘the reviewable decision’).[46]
[46] The letter dated 25 September 2020 informing the Applicant of this decision incorrectly states that the decision was made on 24 September 2020 (see G3 at p 9) whereas it was in fact made on 21 April 2020 (G11 at p 44). Nothing turns on this.
THE TRIBUNAL HEARING
On 4 October 2020, the Applicant applied to the Tribunal for review of the reviewable decision.
The Tribunal heard the application on 13 April 2021 by telephone. It was not possible to establish a videoconference link due to telecommunications difficulties. The Applicant was self-represented. He was the only witness.
The Tribunal was provided with the Respondent’s Statement of Facts, Issues and Contentions dated 25 November 2020 as well as a substantial body of material: 130 pages of documents provided under section 501G of the Migration (the “G documents”); 189 pages of supplementary documents relating to offending history; and 165 pages of further supplementary documents consisting of IHMS Health Records. The Applicant had paper copies of these documents with him during the hearing.
DIRECTION NO. 79
In exercising the discretion under subsection 501CA(4), the Tribunal is bound to comply with Direction No. 79 (‘Direction’), which is designed to assist the Tribunal in weighing the various considerations that must be taken into account. This matter was heard two days before the new Direction No. 90 came into effect.
Direction No. 79 contains rules and principles relating to the weighting of the various considerations. I expressly note for example the principle that a non-citizen who has committed a serious crime, particularly against women, should generally expect to forfeit the privilege of staying in Australia.
The Direction identifies certain factors, so-called ‘primary’ and ‘other’ considerations. I note that primary considerations should generally be given greater weight than ‘other’ considerations. However, any one factor may be determinative in the particular circumstances of the case, regardless of its classification.
PRIMARY CONSIDERATIONS
Protection of the Australian community: PC1
The first primary consideration is the protection of the Australian community.
The gravamen of the Applicant’s offending is the offences which arose within a domestic context, and for which he was sentenced to in October 2018 and February 2019 to a total of 32 months of imprisonment. But I note that there are various driving offences in his criminal record, and other minor matters such as fare evasion. He was questioned at length about his entire record during the hearing.[47] I also note that in addition to his Australian criminal record, he has a criminal record in New Zealand.[48] However, most of this offending occurred while he was a minor and it was provided in confidence and I have not included it in this assessment. I do however attach some significance to the fact that this offence history was not disclosed to immigration officials when he arrived from New Zealand in July 2016. The Applicant said that he did not think that he needed to disclose these offences because they related to his behaviour as a minor.
[47] Transcript, 13 April 2021, at 49 and following.
[48] G 8 at p 34.
The Tribunal is required to assess the seriousness of his offending, considered as a whole. I note that the Tribunal’s jurisdiction is founded on the visa cancellation which occurred as a result of the sentences imposed on 20 February 2020.
I have set out in chronological order the facts relating to the domestic violence offending.
I am prepared to accept that some of the Applicant’s reported behaviour (such as the incident at the cinema on 22 July 2018) may suggest the existence of an underlying mental health problem. There is however no direct medical evidence before the Tribunal to support that hypothesis,[49] although there is some indirect evidence. A pre-sentence report makes reference to him seeing a psychologist for PTSD following his workplace injury.[50] The Applicant has consistently and vigorously denied that he suffers from any mental illness.
[49] S2 at p 26.
[50] S11, at 75; Transcript, 13 April 2021, at 80 and following.
Unfortunately, the clinical assessment by Kerry Watson, psychologist, dated 2 October 2018 referred to by the magistrate in sentencing remarks in 2018 was not made available to the Tribunal, although some sense of it may be gained from the sentencing magistrate’s comments.[51] The Respondent’s solicitor stated that it was not provided as part of the summons material.
[51] G9 at p 38.
I am also prepared to accept that the lack of half-way house accommodation, coupled with his ongoing medical issues with drug withdrawals, were in some sense part of the context in which the second lot of offending occurred.
The context within which the offending occurred is not to be ignored. It appears that after serving six months of the twelve month sentence imposed in 2018, the Applicant was released to parole and to what was, in effect, a state of accommodation uncertainty (or homelessness) while he was suffering from withdrawals from Noxone, a drug to which he had become addicted to whilst in prison. The coordination between corrections and the parole office and the police appears to have occurred at the very last minute.[52] I note that according to what he told the parole office he did not wish to live with Ms V and wanted to live alone but she collected him from Parramatta station and they went to her place in Fairfield.
[52] S20 at p 120-123.
There is some evidence that Ms V was motivated in part by sympathy for the Applicant or a desire to assist him from a mental health perspective. I note that she visited him throughout his 2018 incarceration and visited him again on 6 February 2019 after he was taken into custody for the second set of offences.[53] The visit of 6 February 2019 is odd, given the circumstances of his arrest on 2 February 2019.
[53] S19 at p 105.
While the Police Facts tend to focus on matters of infidelity, with associated notions of controlling behaviour, the Applicant’s evidence to the Tribunal highlighted the issue of money. He said that he had received a settlement from an insurance company and she had spent it.[54] It is not necessary in these proceedings to determine where the seeds of their conflict lay. Acrimony about money or infidelity led to chronic instability; and what can only be described as a dysfunctional relationship.
[54] Transcript, 13 April 2021, at 69.
I have considered the various factors required to be taken into account in the Direction, such as the sentences imposed, the trend of increasing seriousness, and the risk factors to individuals and the Australian community as a whole.
The salient fact remains that the Applicant was sentenced on 20 February 2020 to twenty months imprisonment for the most recent offending, which led to the visa cancellation, and the Tribunal is not at liberty to impugn the conviction or sentence.[55] And again I note the principle in Direction No. 79 that crimes of a violent nature against women are viewed very seriously, regardless of the sentence imposed.
[55] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202.
I am satisfied that in the present case the protection of the Australian community weighs heavily in favour of non-revocation of the mandatory cancellation.
Best interests of minor children in Australia affected by the decision: PC2
A second primary consideration relates to the best interests of minor children in Australia. According to the sentencing magistrate, Ms V said that she was carrying his child when he was sentenced on 4 October 2018. The Applicant told the Tribunal that this was a lie.[56] I proceed on the assumption that he does not have a child in Australia to which this consideration might be applied.
[56] Transcript, 13 April 2021, at 87.
The Applicant said that he has a sister who lives in Brisbane and she has three minor children, ranging in age from two to ten. She does not live with the father of her children, who has other children.[57] The Applicant hopes to reside with his sister and help her with the children.[58] I noted above that the Applicant lived with his sister in Brisbane for a short period in 2016.
[57] Transcript, 13 April 2021, at 24.
[58] Transcript, 13 April 2021, at 23.
I note that in May 2020 the sister provided a supporting reference.[59] She describes him as a ‘role model’ and ‘a father figure’ for her children and asks for a chance for her children to have him back with them. It is a loving and compassionate reference to which I have due regard.
[59] G19 at p 86.
An objective assessment is that it is very unclear that the children’s best interests are served by ongoing contact with the Applicant.
The Applicant’s past behaviours, as illustrated by his offending, have been unpredictable and potentially dangerous. The sort of behaviour that led to his convictions for domestic violence offences poses a serious risk to any young family. Moreover, he has developed a drug dependency in prison.
The company he has kept especially in Sydney is problematic. The connection with an outlaw motorcycle gang has exposed him to risk.
There is nothing to suggest that their mother is not able to manage their welfare.
As matters stand, it is idealistic but not realistic to believe that ongoing contact with the children is necessarily in their best interests.
I cannot find that the best interests of minor children favour revocation of the mandatory cancellation.
I find that this primary consideration is at best neutral.
The expectations of the Australian community: PC3
In relation to PC3 (the expectations of the Australian community) it is well established that this consideration cannot weigh in favour of any applicant; the degree to which it weighs against an offender in any particular case varies according to the seriousness of the offending.[60]
[60] FYBR v Minister for Home Affairs [2019] FCAFC 185.
In the present case, the Applicant’s offending involved violence or threats of violence against Ms V and this weighs heavily against him. Visa holders who commit offences of a domestic nature against women may expect to have their visa cancelled and in the absence of other compelling factors they can expect to be removed from Australia.
There is perhaps something arising from his mental health that detracts from the moral blameworthiness of his offending. It appears that Ms V considered that he required assessment and possible treatment.
…she reckons - you know, she said they keep staring at me. And I said, actually do you reckon they’re talking about me or why do they keep staring at me, what’s - are they (indistinct words). And there was like three or four odd people that keep staring at me.
I’ve seen some of the health records and from what I’ve seen they seem to be - do you have any sense of whether you have ever suffered from mental problems or a mental breakdown. Do you think this incident (indistinct) or not?---Yes, like, I’ve had a few - like, a few instances about - you know, breaking down and that, like, it’s - yes, there’s lots of effects of the medication that I’ve been prescribed from 2015 - like, prior to all of this I was healthy, I never - you know, took drugs, I never done nothing, but I don’t know if that anti-depression is the problem here because I wasn’t - you know, taking it at the time (indistinct words) - like, it was a bit over exaggerated because I was just asking her whether you think the people are staring at me, were they staring, you know. And she took it upon herself to say, you’re crazy, you’re crazy, which made me agitated - like, because I know I’m not crazy, you know. And for her to go straight to the hospital it did make me upset and it did make me angry, and I didn’t want to go - all I wanted to do was go home and she refused it.[61]
[61] Transcript, 13 April 2021, at p 61.
However, there is little objective material before the Tribunal pointing to an underlying mental health condition and the Applicant denied that he was mentally unwell.
I note that there are extensive medical IHMS records covering the period February 2020 to the present.[62] They record his growing addiction to buprenorphine. Psychological support reports contain a reference to a threat of self-harm,[63] but overall his risk assessment was low.[64] In 2020, he appears to have been admitted to hospital for physical ailments on two occasions but discharged.[65]
[62] See Respondent’s Further Supplementary Records.
[63] FS11, at p 159.
[64] FS8, at p 153.
[65] FS3, at p 136; FS9, at p 154.
An overall clinical report states:
Background: On review, describes a history of depression in 2017 prior to prison. Cut his left thumb in a workplace injury. Was off work long term on worker's compensation. Was seeing a psychologist and states he was begun on an antidepressant. Admits he was drinking heavily at the time. States this is where his issue with opiates began as he was on pain relief. Had suicidal ideation but made no attempts. Junior did not receive any treatment when in prison. However, admits he sourced occasional Mirtazapine off other inmates to help sleep. Since at VIDC states his mood has been okay. Does not like environment and is keen to get visa and move forward with his life. States he occasionally has sleep problems. GP charted Mirtazapine PRN and Junior has used once with good effect. Admits he has been in a rut and states he knows he needs to return to exercising. Concentration okay. No hallucinations or paranoia. No suicidal ideation.
…Engages reasonably despite stating he is unsure why he is been booked to see a psychiatrist. Fluent speech. Affect euthymic and reactive. No formal thought disorder. No reported psychosis and none inferred by behavior. No suicidal ideation. Insight intact.
No current evidence of depression or other mental illness. Not psychotic. - Past history of depression in context of serious workplace injury. However, was also drinking alcohol regularly which would have contributed to low mood. - Risk to self low.[66]
[66] FS1, at p 2.
Moreover, the period between the grant of his visa in July 2016 and his first incarceration in 2018 is a little over two years. The roots put down in Australia are planted on rocky ground.
Overall, I am satisfied that the expectations of the Australian community weigh heavily in favour of non-revocation of the mandatory cancellation.
OTHER CONSIDERATIONS
Other considerations identified in the Direction relate to:
(a)International non-refoulement obligations: OC1
(b)Strength, nature and duration of ties: OC2
(c)Impact on Australian business interests: OC3
(d)Impact on victims: OC4
(e)Extent of impediments if removed: OC5
International non-refoulement obligations: OC1
Direction No. 79 states that
(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.
Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
I have referred above to the killing in New Zealand of the Applicant’s former housemate, ET. The Applicant told the Tribunal that he was concerned that he personally might be targeted because of his past association and friendship with ET. He said that he had been informed by New Zealand detectives who travelled to Australia that he, the Applicant, was the last person to communicate with ET before he was murdered.[67] However, he was reassured by detectives involved in the case that his name had not been mentioned in the criminal court proceedings. [68] It appears that the detectives gave the Applicant an email address and phone number to contact them should he wish to.[69] It appears that the offenders had taken ET’s mobile phone from him before killing him, a matter referred to by the sentencing judge.[70]
[67] Transcript, 13 April 2021, at 29.
[68] Transcript, 13 April 2021, at 30.
[69] Transcript, 13 April 2021, at 32.
[70] See R v Tapaevalu [2019] NZHC 1867, at [9].
I note that in Omar v Minister for Home Affairs [2019] FCA 279, Mortimer J stated, at [82]:
[I]f the person makes representations that she or he is a person to whom Australia has non- refoulement obligations, and sets out a serious and substantive basis in fact and in law for that representation, part of the statutory task involves consideration of that representation, just as it does any other serious and substantive representation advanced by that person.
The Applicant did not raise a non-refoulement claim in specific terms; however, he did raise the possibility that he may be targeted by those who orchestrated the killing of ET.
The solicitor for the Respondent conceded that, in principle, the risk of exposure to gang violence if removed to a particular country might in some circumstances engage Australia’s international non-refoulement obligations. However, she did not think that the facts raised a credible claim, and in any event, the Applicant was at liberty to apply for a protection visa.
The Applicant’s ability to make a valid application for a protection visa (under section 501E(2)(a) of the Migration Act) does not excuse the Tribunal from giving consideration to his representations as to harm.[71]
[71] See Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166 ; referring to Minister for Home Affairs v Omar (2019) 272 FCR 589; [2019] FCAFC 188, at [44].
In determining whether there is a serious and substantive basis in fact for a non-refoulement claim it is necessary to consider the nature of the threat in question. ET was apparently murdered because of his dealings with a rival outlaw motorcycle gang in relation to drug related activities. The New Zealand sentencing judge said:
The male victim in this case, [ET], had lived in Australia for some years. He returned to New Zealand and became involved in dealing methamphetamine. It is clear from the evidence that he sought to make contact with the Comancheros organisation because he viewed it as a source of methamphetamine that he could sell on to others. At that stage he was obtaining methamphetamine from other sources in Auckland and selling it, it would seem, in the South Island. [72]
[72] See R v Tapaevalu [2019] NZHC 1867, at [6].
There is no evidence to suggest that the Applicant was in any way involved in dealing in drugs. He was not mentioned at the trial of those charged and convicted of ET’s murder. There is no evidence that he was a member of any outlaw motorcycle gang, although he did associate with past and present members of the Nomads from time to time. A mere friendship with ET would seem to be a slender basis for fearing reprisals.
It is not inconceivable that a high degree of lawlessness together with a well-founded fear of gang related violence, based on a specific and identifiable threat, [73] may support a non-refoulement claim under the ICCPR or the CAT.[74] But the Applicant’s claim is based on the fact of a single murder, together with an association with the murdered victim, in what is otherwise a peaceful society.
[73] For a Canadian case involving fear of gang related violence in El Salvador see: Jose Contreras v. Canada, Human Rights Committee, Communication No. 2613/2015, Views of 12 May 2017, UN Doc. CCPR/C/119/D/2613/2015, paras. 8.2, 8.7-8.11: see <accessed 20 April 2021>.
[74] Harris and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 753 (1 April 2021), per Member Burford, at [203] et seq.
The situation in New Zealand falls well short of establishing in objective terms the requisite degree of violence. This is so despite the occasional outbreak of violence between outlaw motorcycle gangs, or isolated acts of terrorism, not matter how tragic, which occur on both sides of the Tasman. Moreover, it is not possible to determine whether it would be safer to stay in Australia or be in New Zealand.
In my opinion, the Applicant’s expressed concerns do not provide a ‘serious and substantive’ factual basis for engaging Australia’s international obligations, and therefore it is not necessary to consider whether the Applicant’s concerns are capable of characterisation as a non-refoulement claim. [75]
[75] DOB18 v Minister for Home Affairs [2019] FCAFC 63, per Robertson J at [191].
However, the question whether the risk of harm, or more precisely, the fear of harm, is relevant to any other consideration, such as the impediments he will face if removed, is considered below.[76]
[76] Omar v Minister for Home Affairs [2019] FCA 279.
I therefore find that OC1 is neutral.
Strength, nature and duration of ties: OC2
The Applicant has lived most of his life in New Zealand and came to this country on a permanent basis at the age of 21. He has lived in Australia on a more or less permanent basis since 2015 and continuously since July 2016.
At the time of his arrival in 2016 he had an uncle in Melbourne and two sisters in Australia. His immediate family in Australia presently consists of his sister and her three children in Brisbane, his uncle in Melbourne, and various cousins, who are over 18. I note his desire to return to Brisbane and help his sister with the children.[77] His other sister has returned to New Zealand with her three children.
[77] Transcript, 13 April 2021, at 24.
I note that after his relationship with Ms V came to an end, he had a brief romantic involvement with a woman he met before going to prison. Although they were still friends, the potential for something more had been put on hold due to the circumstances. He told the Tribunal that he thought she would be pretty upset if he were sent back to New Zealand, but he had not wanted her to put her life on hold. [78]
[78] Transcript, 13 April 20201, at 13-14.
I note that he worked for his uncle in 2015, and hoped to be employed there in the future, as a steel construction worker. He said that his uncle’s wife had explicitly stated that he would have a job in the family business, and that he would be welcomed with open arms.[79] Unfortunately, the uncle’s letter to the Minister did not refer explicitly to a job offer.[80]
[79] Transcript, 13 April 20201, at 22.
[80] Transcript, 13 April 20201, at 22.
However, as noted above, since his most recent arrival in July 2016, he has spent just over half that time in prison or immigration detention. He has been deprived of liberty continuously (with a two day break) since 4 October 2018.
Nevertheless, I find that his ties with Australia are not insubstantial and weigh moderately in favour of revocation of the mandatory cancellation.
Impact on Australian business interests: OC3
This consideration is not relevant to the present proceedings.
Impact on Victims: OC4
The essence of the offence of stalk/intimidate is the psychological damage done to the person being targeted, including a possible interdependency held together by psychological or physical violence.
I note Ms V’s written unsworn statement that he did not hit her, and that she did not want the police to charge him, and that they ‘pushed the charges without me’.[81]
[81] G18, at p 85.
I note the Applicant’s evidence that Ms V made up a story about being pregnant, presumably in the belief that it would help the Applicant.[82] He also said, with disarming frankness, that Ms V arranged for a reference to be obtained from a sporting club but said that he was not known to the signatory of the letter.[83] He seemed confused about which sporting club the letter was from.[84] I am reluctant to criticise someone who did not give evidence to the Tribunal, but I cannot attach much weight to Ms V’s letter or the letter of reference.[85]
[82] Transcript, 13 April 20202, at 87.
[83] G21 at p 89.
[84] Transcript, 13 April 20202, at 24-25.
[85] G18 at p 84-85, 89.
There is however no evidence before the Tribunal of any specific harm to victims, and therefore this consideration is neutral.
Extent of impediments if removed: OC5.
The Direction refers to
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
e) Any social, medical and/or economic support available to them in that country.
There are no cultural obstacles to his integration into New Zealand society.
There is material which suggests that during his period in prison or immigration detention he became dependent on amphetamines and buprenorphine. There is no evidence that the Applicant used recreational drugs before his incarceration. This is a troubling state of affairs, for it must be accepted that those with substance abuse issues face greater challenges in relocation and in finding employment and accommodation.
In terms of support systems in New Zealand, the Applicant has a sister in New Zealand who, until recently, lived in Australia with her three children. The Applicant did not think that he could expect much sympathy from her if he were removed; but nevertheless, she would provide a point of familial contact and potential stability for him.
I note that the Applicant has said that he has a son in New Zealand. According to a pre-sentence report the boy is now 11 years old.[86] He said that he had no contact with his son and the relationship with the mother had ‘moved on’.[87] Nevertheless, the fact that he has a son in New Zealand is not to be discounted as an important bond with that country.
[86] S11, at p 74.
[87] Transcript, 13 April 2021, at 13.
The Applicant is relatively unskilled, although I note that he did do a course in prison relating to ‘barbering’.[88]
[88] Transcript, 13 April 2021, at 73.
In terms of impediments that the Applicant may face if removed to his home country, I refer to the circumstances surrounding the murder of ET referred to above. Clearly this is a matter that weighs heavily on the Applicant. He told the Tribunal that he was very concerned that the people who directed the killing of his friend ET would target him upon his return to New Zealand.
Without in any way wishing to diminish or exaggerate the danger raised by this issue, as noted above, it is simply impossible to know whether he faces a greater danger in Australia or New Zealand, or indeed, any danger at all. His best protection is to stay clear of all gang related activities, on both sides of the Tasman.
I accept that his fear of gang related violence is real and relevant to the impediments he might face. It is impossible for the Tribunal to assess the risk of harm per se; and the dilemma highlights the dangers for anyone involved in, or flirting around the edges of, organised crime. However, I think that from a psychological perspective, his fear about gang reprisals if returned to New Zealand should be accorded some weight. There is some danger that his internal belief that he will be more easily targeted in New Zealand may have a negative effect upon his psyche.
I note that there are legal mechanisms involving returning offenders to New Zealand and the Applicant will be subject to ongoing parole supervision.[89] This does not detract from the hardship that the Applicant may face if returned to New Zealand.
[89] See the Returning Offenders (Management and Information) Act 2015 (NZ): <accessed 14 April 2021>
Despite the positive factors identified above (his family ties and cultural ties), I find that overall the impediments he will face if returned to New Zealand in establishing himself and maintaining basic living standards, weigh moderately in favour of revocation of the mandatory cancellation.
CONCLUSION
I am satisfied that two of the primary considerations (PC1 and PC3) weigh heavily against revocation of the mandatory cancellation; and that the primary consideration relating to minor children (PC2) is neutral.
Two of the ‘other’ considerations weigh moderately in favour of revocation of the mandatory cancellation.
· OC2 (the nature and strength of ties) weighs moderately in favour of revocation of the mandatory cancellation;
· OC5 (the extent of impediments if returned) weighs moderately in favour of revocation of the mandatory cancellation;
The remaining ‘other considerations’ are neutral.
My overall assessment is that the two primary considerations outweigh the two ‘other’ considerations.
I find that the Applicant has a substantial criminal record and does not pass the character test, as defined in section 501(6) of the Migration Act.
I have reviewed the material before the Tribunal, and the Applicant’s evidence, and I am not satisfied that there is ‘another reason’ why the mandatory cancellation of his visa should be revoked under section 501CA(4).
Therefore, his visa remains cancelled.
I am confident that this is the correct and preferable decision. The Applicant’s life in Australia has been marred by misfortune, much of it self-imposed. At 27 years of age, he is still a young man. His relationship difficulties and associations with outlaw motorcycle gang members have brought him to the attention of law enforcement.
If, in his home country, he can avoid dysfunctional relationships, criminal gangs and self-medication, he will be able to close this unfortunate chapter of his time in Australia, spent mostly in prison or detention, and start a new life, without the perennial threat of removal to New Zealand hanging over his head.
The Tribunal expresses the hope that he will embrace that challenge.
DECISION
The decision under review is affirmed and therefore the applicant’s visa remains cancelled.
I certify that the preceding 119 (one hundred and nineteen) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member
..................................SGD......................................
Associate
Dated: 28 April 2021
Date of hearing: 13 April 2021 Applicant: Mr Ngatoko, Self-represented Solicitors for the Respondent: Ms Saunders, Minter Ellison
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