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

[2021] AATA 3284

NMHT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3284 (10 September 2021)

Division:GENERAL DIVISION

File Number(s):      2021/4224

Re:NMHT

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member M Griffin QC

Date:10 September 2021 

Place:Sydney

The decision under review is affirmed.

.................................[SGD].......................................

Senior Member M Griffin QC

CATCHWORDS

MIGRATION – mandatory cancellation of visa - Class TY Subclass 444 Special Category (Temporary) visa – where visa was cancelled under s 501(3A) because applicant did not pass character test – substantial criminal record - Ministerial Direction No. 90 – primary considerations – protection of the Australian community – seriousness of offending and future risk – family violence - best interests of minor children – expectations of the Australian community - other considerations – extent of impediments if removed – impact on victims - links to the Australian community – decision under review affirmed.

LEGISLATION

Migration Act 1958 (Cth) ss 499, 500, 501, 501CA

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166

SECONDARY MATERIALS

Direction No. 90 – 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

Senior Member M Griffin QC

1.       The Applicant is a citizen of New Zealand, born in September 1996, and came to Australia at age 2, in 1998. The Applicant has lived in Australia since that time apart from a few weeks when he returned to New Zealand.

2. The Applicant has committed a variety of offences which led to a delegate of the Minister deciding not to revoke a mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa. That decision was made on 17 June 2021 and the Applicant presently applies to this Tribunal for review of that decision under subsection 501(1) of the Migration Act 1958 (Cth) (the Act).

ISSUES

3.       The Applicant does not pass the character test because he has a substantial criminal record by virtue of having been sentenced to a term of imprisonment of 12 months or more: ss 501(6)(a) and (7)(c) of the Act. This is not disputed by the Applicant.

4.       The sole issue for the Tribunal's determination is whether it can be satisfied that there is another reason why the original decision should be revoked, such that the Tribunal may revoke the decision: s 501CA(4)(b)(ii) of the Act.

RELEVANT LEGISLATION AND POLICY

5.       Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: see s 501CA(1).

6.       Section 501CA(4) provides that:

(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.

7.       In Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38], North ACJ held that:

The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine  the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked.

8.       Section 501(6)(a) relevantly provides that a person does not pass the character test if the Applicant has a substantial criminal history. Section 501(7)(c) states that a person has a substantial criminal history if they have received a sentence of imprisonment of 12 months or more.

9.       The Applicant was sentenced to a term of imprisonment for more than 12 months. The Applicant does not pass the character test.

10.     Section 500(1)(ba) of the Act provides that applications may be made to the Tribunal or review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.

11.     The Minister has made a written direction pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (Direction No. 90). Section 5 of Direction No. 90 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly includes that:

(a)Australia has a sovereign right to determine whether non-citizens who are of character concern have a right to enter and/or remain in Australia. Being able to come 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 (paragraph 5.2(1));

(b)non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia (paragraph 5.2(2));

(c)the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community (paragraph  5.2(3));

(d)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age (paragraph 5.2(4));

(e)decision makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non- citizen's conduct or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community (paragraph 5.2(5)).

12.     Part 2 of Direction No. 90 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises four Primary Considerations and several specified, but non-exhaustive, Other Considerations, which must be taken into account.

13.     Pursuant to Part 2 of Direction No. 90, the Tribunal must, to the extent that they are relevant to this case, take the relevant considerations (both primary and other) into account and:

(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight (paragraph 7.1).

(2)Primary considerations should generally be given greater weight than the other considerations (paragraph 7.2).

(3)One or more primary considerations may outweigh other primary considerations (paragraph 7.3).

14.     These principles are of course dependent upon the facts and circumstances of each case.

15.     The primary considerations are:

(1)Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);

(2)Whether the conduct engaged in constituted family violence (Primary Consideration 2);

(3)The best interests of minor children in Australia (Primary Consideration 3); and

(4)Expectations of the Australian community (Primary Consideration 4).

16.     The Tribunal must also take into account other considerations insofar as they are relevant.

17.     These considerations include (but are not limited to):

a)International non-refoulement obligations;

b)Extent of impediments if removed;

c)Impact on victims;

d)Links to the Australian community, including:
i)   strength, nature and duration of ties to Australia;
ii)  impact on Australian business interests.

THE CHARACTER TEST

18.     As set out above, s 501(6)(a) of the Act provides that a person does not pass the character test if the person has a ‘substantial criminal record’ as defined in s 501(7) of the Act.

19.     For the purposes of the character test, a person has a substantial criminal record under s 501(7)(c) of the Act if the person has been sentenced to a term of imprisonment of 12 months or more.

20.     In circumstances where the Applicant has been sentenced to imprisonment of 12 months or more, the Applicant satisfies the definition in s 501(7)(c) of the Act and therefore fails the character test.

Background to offending

21.     Set out below is a summary of the Applicant’s offending since he was a child, having first committed violent offences of assault occasioning bodily harm in company in June 2011. These details appear in the Respondent’s outline and as to the convictions, are not contested by the Applicant, although during the course of the hearing the Applicant made certain submissions about the extent of his involvement in the offending and his responsibility for that offending, particularly in relation to the latter offences which related to domestic violence and his mother and brother.

3.The Applicant is a citizen of New Zealand, born [in] September 1996. The Applicant    first entered Australia [in] November 1998, aged 2: GD 84.

4.The Applicant has been convicted of the following charges while a minor…(GD 36–38):

4.1.[in] 2011, Assault occasioning abh in company of other(s)

4.2.[in] 2013, Shoplifting, Common assault and Affray

4.3.[in] 2013, Shoplifting and Robbery in company

4.4.[in] 2013, Behave in offensive manner in/near public place/school and

Resist officer in execution of duty

4.5.[in] 2014, Robbery in company (four counts), Possess graffiti implement with intent to damage or deface and Damage/deface any premises/property with graffiti implement, and

4.6.[in] 2014, Learner not accompanied by driver/police officer/tester, Learner driver not display “L” plates as required, Negligent driving (no death or grievous bodily harm) and Drive with middle range PCA - 1st off.

5.On the evening of 18 February 2019, the Applicant was at his residence and consumed an amount of methamphetamine. He then became aggressive towards his mother and his brother. During the ensuing physical altercation with his brother, the Applicant threw a shoe which hit his mother in the head. One of his punches also hit his mother in the head: GD 53–56. On 5 April 2019, the Applicant was convicted of Common Assault (DV) (two counts) and placed on a Community Corrections Order (CCO) for 18 months. An Apprehended Domestic Violence Order (ADVO) was issued in relation to the Applicant: GD 36.

6.On the evening of 8 April 2019, the Applicant’s brother informed the police that the Applicant was on illicit drug. While on the phone to the police, the Applicant threatened to harm his brother: Respondent’s Tender Bundle (RTB) 25. As a result, on 23 May 2019, the Applicant was convicted of convicted of Contravene prohibition/restriction in AVO (Domestic) and Stalk/intimidate intend fear physical etc harm (domestic) and sentenced to an 18 month Intensive Correction Order (ICO). He was also found to be in breach of the CCO imposed on 5 April 2019 for his common assault convictions: GD 35–36.

7.It appears that on 21 July 2019, the Applicant had a physical altercation with his brother-in-law during which occurred in the presence of the Applicant’s sister and her children: RTB 23.

8.Between 30 November 2019 and 6 February 2020, the Applicant committed further offences, including larceny and breach of ADVO: RTB 3-22. On 17 September 2020, the Applicant was convicted of Larceny (six counts), Shoplifting and Contravene prohibition/ restriction in AVO (domestic) and sentenced to an aggregate 24 months imprisonment, with non-parole period of eight months: GD 32–35.

Evidence at hearing

22.     The Applicant gave evidence and was cross-examined during the course of the hearing and also made oral submissions, many of which he read from pre-prepared notes.

23.     The Applicant impressed as someone who was not unintelligent and perfectly capable of not only comprehending the proceedings but during the course of his evidence, adapting his evidence to present himself in the most favourable light.

24.     The Tribunal formed the view that the Applicant gave evidence that was self-serving, inconsistent at many junctures during the course of his evidence and was, at times, quite evasive.

25.     Furthermore, explanations as to his conduct within the prison/detention regime and his handling of illicit articles, both by receipt and attempting to throw them over the fence into another yard in the detention centre, was more than implausible. In fact, his evidence was risible in some of its aspects. The Tribunal formed the view that the Applicant was not a witness of truth and regards the evidence of the Applicant, particularly in terms of his reform and the question of his risk of committing future offences, as carrying little weight.

26.     There is a body of evidence of misbehaviour by the Applicant after he was taken into custody and during detention immigration detention.  There is no reason to suppose that the evidence of those custodial officers who supervised the Applicant should not be accepted. The Applicant denied any knowledge that there were drugs in prison/immigration detention and denied seeing any person use any such illicit substances. The common experience of this Tribunal, having heard so much evidence concerning that type of activity, is that the Applicant's evidence cannot possibly be accepted and was in fact quite implausible. In fact, the Applicant was found to have had what is apparent to the Tribunal, some form of illicit substance, probably ice, in his cell which he shared with others. The Tribunal simply does not believe, having regard to the Applicant's past history of methylamphetamine use, that the Applicant did not know of its presence and the real likelihood is that he was a participant in the use of that substance.

27.     The Applicant was given a job whilst in custody and dismissed on account of theft. The explanation which the Applicant gave, that is, that he deliberately stole in order that he be “fired” from the job because he did not like preforming the job was incredible in the extreme. The Tribunal finds that the Applicant deliberately lied to the Tribunal about the circumstances of the dismissal in an attempt to avoid imputations against him for stealing. Deliberately lying to the Tribunal, as the Applicant has been found to have done, is a serious matter which must affect his overall credibility, particularly as it relates to his so-called reformed behaviour.

28.     The Tribunal considers that the Applicant is, in fact, a very practised but rather unconvincing liar whose untruths are easily able to be uncovered.

29.     The point of these statements and conclusions reached by the Tribunal is that the Tribunal is not at all satisfied that the Applicant has abandoned his interest in illicit substances which leads to a conclusion that may satisfactorily be made that the Applicant has reformed little in respect of drug-use or at least his interest and association with those who would use drugs.

30.     Support for the view the Tribunal has formed as to the concerns the Tribunal has about the acceptability of the Applicant’s evidence and his disposition to tell untruths, is to be found in the statement of one of his “supporters” whose statement the Applicant provided late at the time of hearing but was, nonetheless, admitted in an artificial way by adjourning the hearing until 30 August 2021 in order to receive that evidence. A statement by the mother of the Applicant once again received and accepted by the Tribunal and regarded as particularly relevant was received as evidence in the same fashion.

31.     The statement of his “supporter” referred to above contains the following:

The biggest problem with NMHT would have to be his lying which is disgusting because he is a compulsive liar which has gotten him into trouble a few times and I hope he has learnt from it. Cause When it comes to NMHT he tends to want to be a people pleaser.

When in reality he needs to be himself and realise there's nothing wrong with being YOU …

if you try be someone your not especially here In this environment someone will pull you up and pick out all those flaws and expose you for something you are not.

32.     The Applicant claims that his behaviour has largely been the result of the death of his father. The Tribunal understands and appreciates that submission, and it may well be the case that the father's death has had some impact upon the Applicant. However, the Tribunal does not accept that its effect and the dimensions of it have continued to be responsible for all his later conduct, including the offences committed against his brother and mother. The Tribunal also notes that the Applicant commenced offending in 2011, two years prior to his father's death. The Applicant was approximately 14 years of age at the time of the commencement of his offending.

33.     The Tribunal further accepts that the Applicant did not commence using illicit substances/drugs until he was approximately 18 years of age. Furthermore, the Tribunal recognises that there should be some amelioration of responsibility for childhood offending, particularly for someone as young as 14 years of age. Nonetheless, in this case, what is worrying about the Applicant’s offending is that it commenced at that young age and continued with the series of offences set out above. The Tribunal recognises that the history of offending is not continuous and that there are periods where there is no evidence that the Applicant has committed offences. It is, however, correct in the Tribunal's opinion, to consider that the offending has increased in seriousness with the most serious offences being violence of a domestic nature which involve both his brother and mother.

34.     As to the last offence, it is clear enough that the circumstances reveal that the Applicant did not deliberately set out to injure his mother, however, the Applicant is, of course, criminally responsible for behaviour which led to his mother being hit during the course of a transaction with his brother.

35.     As to this last offence, police had to be called and the Tribunal infers that both the mother and the brother were in fear of the Applicant’s behaviour and conduct.

36.     What looms large and what is considered extremely serious by the Tribunal is that the Applicant breached a court order which was an Apprehended Violence Order (AVO) and which, in its terms, forbade him to enter the premises where his mother and brother lived. During the course of evidence, the Applicant was asked about this breach and it was absolutely apparent that the Applicant had no real sense of the seriousness of his breaching behaviour. This is a worrying aspect in relation to future risk of offending which is dealt with below in the relevant consideration.

37.     Another relevant matter in the April evidence before the Tribunal is that aspect of evidence that relates to the Applicant's mental health. The Applicant claims to suffer from anxiety and depression. His behaviour since he first committed offences may suggest other undiagnosed issues. That, however, may be put to rest when the Tribunal considers evidence before it contained in a report dated 28 July 2020.

38.     The Applicant is presently not on any medication which suggests not that he is being untreated but that he simply does not need medication. It cannot be supposed that those who are charged with the Applicant’s care would be so negligent as to refuse medication for him. Furthermore, the Applicant did not complain of the need for medication but simply gave evidence that he was not on any medication for any mental health issue.

39.     The evidence to which the Tribunal refers below concerns the Applicant's contact with mental health professionals and his subsequent behaviour after having been seen by those professionals.

40.     The psychology case note of 28/07/2020 is evidence of particular concern demonstrating manipulative and mendacious behaviour and attitudes amongst other worrying conduct.

41.     It is relevant, in the Tribunal’s opinion, to set out some passages from the report referred to above to give some flavour to the Applicant and his conduct and questions concerning his credibility.

Behaviour: Inmate did not maintain appropriate eye contact during session. He appeared distracted by movement of staff within the pod and noise coming from outside of the pod. He was noted to frequently look at officers sitting in the pod office. On one occasion, inmate was non-responsive to questions as he was attempting to look out of the pod. Restless in his seat and would bounce his legs up and down or fidget with the pen and Psychology Participant Information Statement. On one occasion he was noted to be doodling on the information statement. Inmate was vague and inconsistent with information provided about his mental health. During session there were multiple occasions when inmate would attempt to confirm with custodial officer that was in the vicinity about when inmate had been seen by other staff members. Inmate appeared to be engaging in negative impression management in order to meet his perceived need of obtaining medication.

Appearance: 23 year old male who appeared age appropriate. Of average height and weight. Messy and sparsely growing black beard. Short and neat curly black hair with shaved sides and back. Dressed in long sleeved jumper and pants which were weather appropriate. Adequate hygiene.

Consent form: Psychology Participant Information Statement read and explained to inmate. Voluntary nature of psychology, consent and limitations to confidentiality were discussed. Inmate consented to engage in psychology service. Inmate signed Consent Form 2A: Psychology.

Session summary of issues identified based on file-review and inmate's self-report:

Inmate seen at table in pod area of Darcy block, pod 3. Discussed inmate?s [sic] psychology referral with inmate. He stated that he wanted to be reviewed for medication. When writer clarified the role of psychology, inmate then requested that writer refer him to the psychiatrist.

Mental Health State

Inmate reported having been diagnosed with depression and anxiety. He stated that he had obtained this diagnosis when he had been admitted to a mental health ward for a period of 1-2 months in 2015. Inmate's self-report of his mental health was inconsistent with medical records that indicated that he had been diagnosed with drug induced psychosis and had been admitted for a few days. Inmate was vague about prescribed medications that he had been on while in the community.

Inmate reported sleep impairment and reported that he was sleeping from 9pm to 3am each night. He stated that once he is awake he is unable to go back to sleep. He advised of experiencing 'bad dreams' however when asked to described a dream that he had, inmate was initially unable to provide an answer and then described a dream vaguely. Inmate reported decreased appetite which was again inconsistent with his report later in session that he would eat food frequently as a way to distract himself.

Attempted to engage inmate in psychological intervention however inmate was dismissive and would frequently state that he needed medication for his mental health.

Suicide/Self-harm/Harm to others

Inmate denied current ideation, intention or plans of suicide/self-harm.

In regards to inmate's command auditory hallucination, inmate stated that he is worried that he will hurt other people. He reported having been involved in fights with other inmates. When concern was raised about inmate's risk of harm to others in regards to his request to have his PRNA status removed so that he can move to the main gaol, inmate then stated that he would not act on these AH as he would not want to risk moving back to segregation.

Medical

Inmate reported nil current physical health concerns.

Current adjustment and support

Inmate stated that he was finding it difficult being on PRNA. He reported that he wants to be able to mingle with other inmates. Inmate stated that he feels isolated. When asked whether he knew the reason he was placed on PRNA, inmate stated that it was because of something his brother had done. He reported that he is not on speaking terms with his brother and as such does not see why he has to be PRNA.

Inmate identified his mother and his older sister as his main supports. He stated that they put money into his gaol account for him. Inmate described them as supportive.

AOD

Inmate initially denied substance use in the community however when asked about file information that indicated that inmate had been using methamphetamine in the community, inmate then advised that he had been using methamphetamine. He was dismissive of his substance use.

Future plan

Inmate stated that his main focus at the moment was to obtain medication and to have his protection status changed so that he can be housed with other inmates.

Actions taken:

I.         Visual assessment of inmate's cell. Cell was neat, tidy and clean.

II.        Following termination of session, when writer consulted with pod officers regarding inmate, pod officers who had returned inmate to his cell informed writer that inmate had laughed and told them that he does not experience any perceptual disturbances

III.       Consultation with MH nurse who stated that psychiatrist had assessed inmate on the 15/07/2020 whom had found that inmate did not have concerns that needed to be addressed by Mental Health

42.     In the Tribunal’s opinion, this paints a worrying picture of the Applicant’s manipulative and dishonest conduct to those whom he wishes to impress. The Tribunal will not be misled by such behaviour as the Applicant has attempted to use before the Tribunal in his assertions of remorse, change of behaviour, conduct and appreciation of his past offending. The Tribunal will look and judge those issues which are relevant to its considerations based upon objective evidence and any evidence of the Applicant which is supported, in itself, by other acceptable, objective evidence.

43.     All of the above matters referred to, in a general way, reflect the view formed overall of the Applicant by the Tribunal and affect its consideration of a number of the relevant considerations required to be made under Direction No. 90.

EXERCISING THE DISCRETION

44.     In exercising the discretion in s 501CA(4) of the Act, the Tribunal must comply with Direction No. 90 (see s 499(2A) of the Act) which sets out the relevant considerations.

Primary Consideration 1 – Protection of the Australian community

45.     Paragraph 8.1 of Direction No. 90 provides:

(1)    When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

46.     Paragraph 8.1(2) of Direction No. 90 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.

The nature and seriousness of the Applicant's conduct to date

47.     Sub-paragraph 8.1.1 of Direction No. 90 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes:

a)without limiting the range of offences that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community (sub-paragraph 8.1.1(1)(a)(i)- (iii)):

(i)violent and/or sexual crimes;

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

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

b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious (sub-paragraph 8.1.1(1)(b)(i)-(iv)):

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

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

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

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

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

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

e)the cumulative effect of repeated offending;

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

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

The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

48.     Paragraph 8.1.2 of Direction No. 90 provides that decision-makers must have regard to the following:

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

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

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

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

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

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

c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

Seriousness of offending and future risk

49.     Paragraph 8.1.2(2)(b) of Direction No. 90 requires the Tribunal to have regard to the likelihood of the person engaging in further criminal conduct, including evidence of re-offending and rehabilitation.

50.     The Applicant’s offending, when considered overall, is not nearly as numerous or serious as other persons the Tribunal often has to consider in applications of this kind.

51.     The Tribunal recognises that the Applicant is a relatively youthful offender and his offending was not continuous, although the offences describe an increasing level of violence. The nature of the offending involves property offences and also offences of violence, often related as they are, in the offences of robbery and assault occasioning bodily harm. Furthermore, the Applicant seems to have been unimpeded and unaffected by the AVO which was meant to control his behaviour. The circumstances of the breach and the timing of the breach, consequent upon the original AVO having been made, present a very concerning picture of the Applicant's behaviour.

52.     During the course of the Applicant’s evidence, the Applicant showed little real appreciation of the consequences of his offending nor indeed did he present a particularly convincing state of remorse. The only remorseful aspect of the Applicant’s behaviour was that he recognised the predicament in which he was in and the likelihood of being deported.

53.     Although according to the Applicant's mother and brother, they wish him to remain in Australia, and inferentially have forgiven him, such forgiveness by his family members is not determinative. The objective features, violent behaviour of any kind, must not be condoned, particularly in circumstances made the worst because it was violence affected against members of his own family, including his mother. This consideration is also particularly relevant in relation to the specific domestic violence consideration under Direction No. 90. The Tribunal, in making these comments, recognises that there was limited family violence perpetrated by the Applicant. It is not as though there was a lengthy history of such violence. But, nonetheless, the Tribunal considers the dimensions of that violence particularly serious.

54.     The Applicant says that he is reformed. The Applicant points to having completed a course whilst in custody which was a course concerning men's health. This, according to the Applicant, demonstrated a determination to seize opportunities to practically demonstrate a change of attitude and steps towards rehabilitation. Furthermore, the Applicant says that it was not possible for him because of his particular situation and because of the COVID-19 pandemic, to access any other more specific educational courses relating to drug and alcohol abuse and violence and anger management. The Tribunal is prepared to accept that the Applicant's attempts are genuine and there is some demonstration of steps to reform.

55.     The Applicant has not been out in the community and has not been placed in a position where the temptations to violence or illicit drug-use have presented themselves. The Applicant says that his family have recognised change in him in their interactions with him which have been largely through electronic devices, both speaking to him and seeing him on a screen. This is some objective evidence that the Tribunal accepts demonstrates some change in the Applicant. In fact, the many and varied statements of support for the Applicant by his family members, including a cousin and a brother-in-law who has offered the Applicant a job should he be released, are accepted by the Tribunal as having some positive bearing on the Applicant, on the likelihood of some rehabilitation and the fact that in their collective opinion, he is a young person who is worthy of a second chance.

56.     The Tribunal accepts what these witnesses say as to the Applicant, in the sense that it is their collective and personal views of him. However, the overwhelming evidence, in the Tribunal's opinion, is that there is insufficient substantial evidence of real reform to a standard that would satisfy the Tribunal that the Applicant is no risk of future offending.

57.     In fact, the future offending that the Applicant may be predicted to follow is a class of offending involving both violence and property offences, such offending unrelieved by sanctions and Court-ordered controls such as AVOs which the Applicant has demonstrated in the past he is capable of breaching.

58.     Upon balance, the Tribunal is comfortably satisfied that the Applicant presents a real risk of future offending because he has not, in fact, fundamentally reformed, although there is of course some evidence of steps taken in this direction. The Applicant’s past offending is particularly serious and considered together, those matters, overall, lead to a conclusion that this consideration weighs extremely strongly against the Applicant.

Primary Consideration 2 – Family violence committed by the non-citizen

59.     Paragraph 8.2(1) of Direction No. 90 provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.

60.     Paragraph 4(1) defines family violence to mean "violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful".

61.     Primary Consideration 2 is relevant in circumstances where (paragraph 8.2(2)):

a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence (sub-paragraph 8.2(2)(a)); and/or

b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen has been afforded procedural fairness (sub-paragraph 8.2(2)(b)).

62.     Paragraph 8.2(3) of Direction No. 90 provides that, in considering the seriousness of family violence engaged in by the non-citizen, the following factors must be considered, where relevant:

a)the frequency of the non-citizen's conduct and/or whether there is any trend in increasing seriousness (sub-paragraph 8.2(3)(a));

b)the cumulative effect of repeated acts of family violence (sub-paragraph 8.2(3)(b));

c)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (sub-paragraph 8.2(3)(c)):

(i)the extent to which the person accepts responsibility for their family violence related conduct (sub-paragraph 8.2(3)(c)(i));

(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.2(3)(c)(ii));

(iii)efforts to address factors which contributed to their conduct (sub- paragraph 8.2(3)(c)(iii)); and

d)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour. (sub-paragraph 8.2(3)(d)).

63.     The Tribunal accepts that the Applicant has not indulged in a lengthy history of domestic violence. However, the domestic violence in this case, which behaviour conforms to the relevant definition, is particularly serious because it was perpetrated against the Applicant's brother and his aged mother who, on material before the Tribunal, is not in good health.

64.     A particularly serious aspect of this violence is that the behaviour was foreseen and in that way, a Court-ordered AVO was put in place to protect persons from the Applicant’s possible conduct. That order had absolutely no effect on the Applicant and he breached that order by serious offending of the very type contemplated in the order.

65.     Domestic violence in any dimension is serious, and perpetrated against family members, including the Applicant's mother, makes that offending more serious.

66.     It is sufficient to state that this consideration weighs against the Applicant although in doing so, the Tribunal recognises that there should in no sense be a type of “double accounting” because that same conduct has already been considered under the previous consideration.

Primary Consideration 3 – Best interests of minor children in Australia

67.     Paragraph 8.3(1) of Direction No. 90 provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision.

68.     This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made (sub-paragraph 8.3(2)).

69.     Paragraph 8.3(3) provides that the best interests of each child should be given individual consideration to the extent that their interests may differ.

70.     Paragraph 8.3(4) provides a list of factors to be considered in determining the best interests of the child, which includes:

a)the nature and duration of the relationship between the child and Applicant. 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) (sub-paragraph 8.3(4)(a));

b)the extent to which the Applicant 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 (sub- paragraph 8.3(4)(b));

c)the impact of the Applicant's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child (sub- paragraph 8.3(4)(c));

d)the likely effect that any separation from the Applicant would have on the child, taking into account the child's or Applicant's ability to maintain contact in other ways  (sub-paragraph 8.3(4)(d));

e)whether there are other persons who already fulfil a parental role in relation to the child (sub-paragraph 8.3(4)(e));

f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child) (sub-paragraph 8.3(4)(f));

g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or has otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally (sub-paragraph 8.3(4)(g)); and

h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct (sub-paragraph 8.3(4)(h)).

71.     The Applicant disclosed in evidence that there are six nephews and nieces, all of whom are relevant to this consideration. Their ages range from 17 years of age to about 2 years of age. Two children are the son and daughter of the Applicant’s sister, L. Their ages are 17 and 9 years of age, a male and female. The other two males and two females are aged 13, 10, 4 and 2 years of age. The Applicant says that he treats the children ‘as if they were his own children’. Although this may sound surprising, culturally it is quite clear, from what his family says, that the relationship of the male uncle with his nieces and nephews is regarded as important. The Applicant sees himself in an important role with these children and the Tribunal accepts that from the children's point of view, this is undoubtedly the case and important for them to have him in their lives as a male figure.

72.     Not a great deal of evidence was given about the separate relationships which the Applicant had with each child but it is sufficient to say that the Tribunal accepts that he had a relationship and continues to have a relationship with each child, differing depending upon the ages of the children. Furthermore, the Tribunal accepts that he had actual contact with the children and was practically involved in their lives before he went to prison. The Applicant says that even the youngest child who is under 2 years of age, is a child with whom he has, since being in custody, formed a relationship commensurate with the child's age. The Applicant says, and the Tribunal accepts, that the Applicant has had contact via social media with those children since being in custody and detention.

73.     The Tribunal accepts that the children would experience a real sense of loss should the Applicant be returned to New Zealand. It would be in the children's best interests to have their uncle physically as part of their lives and to be able to enjoy a relationship with him, particularly in the cultural atmosphere of the extended family to which the children and the Applicant belong. Although the children could maintain a similar relationship via social media, to that which is presently enjoyed while the Applicant is in custody, it is no substitute for face-to-face contact and interaction. The Tribunal further accepts that the Applicant will sense a loss of those children in his life should he be returned to New Zealand.

74.     Overall, this consideration weighs strongly in the Applicant's favour.

Primary Consideration 4 – Expectations of the Australian community

75.     Paragraph 8.4(1) of Direction No. 90 provides as follows:

The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.

76.     Paragraph 8.4(2) also provides that it may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

(a)   acts of family violence; or

(b)   causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

(c)    commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial, abuse/material exploitation or neglect;

(d)   commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

(e)   involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

(f)    worker exploitation.

77.     The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).

78.     This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).

79.     This consideration has been the subject of extensive judicial discussion and ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185). Although these principles are discussed in relation to the former Direction No. 79, those principles are not relevantly different in principle with respect to Direction No. 90.

80.     It is not for the Tribunal to substitute its own view for the expectations of the Australian community by reference to the Applicant’s circumstances. The Tribunal rather, must give effect to the “norm” stipulated in Direction No. 90 at 13.3(1). per Stewart J and Charlesworth J (93); (100 to 104); (68).

81.     The Tribunal recognises that the Applicant has been a long-standing member of the Australian society having lived all his life in Australia since he was 2 years of age. Furthermore, there is evidence that he has worked and therefore, contributed to Australian society. Nonetheless, the extent of the Applicant’s offending, particularly with reference to domestic violence, leads to a conclusion that this consideration must count against the Applicant.

OTHER CONSIDERATIONS

82.     A decision-maker must also take into account Other Considerations where relevant. These considerations include (but are not limited to) (paragraph 9(1) Direction No. 90):

a)international non-refoulement obligations;

b)extent of impediments if removed;

c)impact on victims;

d)links to the Australian community, including:

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

(ii)impact on Australian business interests.

International non-refoulement obligations

83.     The considerations at paragraph 9.1 of Direction No. 90 include (but are not limited to):

(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 Convention and Protocol non-refoulement obligations.

(2)In making a decision under s 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct.

(3)However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa.

(4)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa in a request to revoke the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).

(5)International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.

(6)It may not be possible at the section 501/section 501CA stage to consider non­refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non­refoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.

(7)Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the non­citizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.

(8)If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international non­refoulement obligations.

84.     There is no evidence to indicate that this consideration is relevant to this review.

Extent of impediments if removed

85.     Paragraph 9.2(1) of Direction No. 90 provides:

(1)Decision-makers must consider the extent of any impediments that the non­citizen 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.

86.     The Applicant is a youthful 25-year-old man who has lived the entirety of his life in Australia. Should he be removed to New Zealand, the Applicant would not have to deal with any issues of language but may have to adjust culturally to a somewhat different life. A real impediment, the Tribunal recognises for the Applicant, is that he has no appreciable relationship with any persons in New Zealand and initially, at least, he would arrive entirely alone without support.

87.     The Tribunal infers, therefore, that there would be emotional, cultural and economic difficulties for the Applicant if removed to New Zealand. The Tribunal also recognises that he would arrive in New Zealand without any family support and possibly, without immediate accommodation. These factors would also contribute to a general concern by the Applicant and therefore, exist as an impediment to his removal from Australia.

88.     The mental health issues claimed by the Applicant will be suitably dealt with by the New Zealand health system.

89.     Initial difficulties experienced by the Applicant, should he be removed to New Zealand, the Tribunal concludes, are not insuperable.

90.     Overall, these considerations bear some weight in the Applicant's favour.

Impact on victims

91.     Paragraph 9.3(1) of Direction No. 90 provides:

Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims…

92.     The brother and mother of the Applicant have provided statements in support of the Applicant and the Tribunal infers, by that support, forgiveness for his actions in respect of them. There is no other relevant evidence in the proceedings relating to any other victims. The attitudes of the brother and mother provide a limited basis for this consideration to weigh minimally, therefore, in the Applicant’s favour.

Links to the Australian community

93.     Reflecting the principles of Direction No. 90 at paragraph 5.2, decision-makers must have regard to Direction No. 90, paragraphs 9.4.1 to 9.4.2 provided below.

9.4.1.   The strength, nature and duration of ties to Australia

(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non­ citizen has to the Australian community. In doing so, 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.

94.     The Applicant has lived in Australia all his life since he was 2 years of age apart from a short period of weeks when he returned to New Zealand. He regards himself as an Australian citizen. The Applicant’s large, extended family also live in Australia and it is clear on the evidence, that he has a close relationship with all his family members.

95.     His mother and brother who were victims of his act of domestic violence, the Tribunal infers, have forgiven his behaviour and actively desire that he remain in Australia.

96.     The Applicant has worked in Australia in warehouses in a labouring capacity but not since 2017. He has, therefore, contributed to Australian society in that way.

97.     There are cultural influences at play in the Applicant's family. His mother, who on some of the material is said to be in ill-health, says that she needs her son, the Applicant, to fulfil the role as male head of the family, as the Applicant is the oldest male member of the mother’s family. The Applicant has also fulfilled the role of uncle, the Tribunal accepts, in relation to his various nephews and nieces.

98.     Clearly, the Applicant has very strong ties to Australia. Although the Applicant has some family members both on his maternal and paternal side who reside in New Zealand, he has had no appreciable contact with them.

99.     It is undoubted that should the Applicant be returned to New Zealand, the many family members who have provided satisfactory character references for him will keenly sense his loss, particularly his mother, brothers and sisters, and their children. Likewise, it is undoubted, on the Applicant’s evidence, that he will experience a great sense of loss should he be removed from Australia and from his family. The Tribunal has already noted the particular familial cultural influences at play.

100.    The Applicant claims to suffer from mental health issues and to the extent that he may need to resort to mental health services, he would no doubt feel more comfortable pursuing that course in a country with a health system more familiar to him.

101.    All of these matters, the Tribunal conclude, give strong weight to this consideration being assessed in the Applicant's favour.

9.4.2    Impact on Australian business interests

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

102.    There is no evidence to indicate that this aspect of this consideration is relevant to this review.

CONCLUSION

103.    The Tribunal is cognisant, in this case, of some very powerful factors in the Applicant's favour which include not only his family connections and the interests of his nieces and nephews but also the Applicant’s consequential loss of family should he be removed from Australia.

104.    However, in this case, the Tribunal considers of significant importance the domestic violence offending, together with an earlier series of other violence and property offences and particularly, the breach of the AVO. The Tribunal's view that the Applicant has not demonstrated a suitable level of reform and the consequential view, therefore, that the Applicant is a risk of future offending, taken together with the serious past offending, lead to the conclusion that there is no other reason for the original decision to be overturned.

Order

105.    The decision under review is affirmed.

I certify that the preceding 105 (one hundred and five) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

................................[SGD]........................................

Associate

Dated: 10 September 2021 

Date(s) of hearing:	25 August 2021 and 30 August 2021
Applicant:	In person
Solicitor for the Respondent:	Mr M Gao, Australian Government Solicitor