NSWQ and Minister for Immigration and Border Protection (Migration)
[2016] AATA 373
•3 June 2016
NSWQ and Minister for Immigration and Border Protection (Migration) [2016] AATA 373 (3 June 2016)
Division
GENERAL DIVISION
File Number
2016/1551
Re
NSWQ
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Deputy President Dr C Kendall
Date 3 June 2016 Place Perth The decision under review is affirmed.
....................[sgd]......................................
Deputy President Dr C Kendall
CATCHWORDS
SECTION 501 VISA REFUSAL – whether applicant passes character test – whether Tribunal should exercise its direction to deny visa – criminal record – protection of the Australian community from criminal and other serious conduct - expectations of the Australian community – impact on family members – discretion to deny visa exercised - decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) – sections 499(2A), 501
CASES
Brown v Minister for Immigration and Citizenship [2010] FCAFC 33
SECONDARY MATERIALS
Direction No 65 - Visa Refusal and Cancellation under s501 – paragraphs 6.1, 6.2, 6.3, 7, 8, 11 and 12.
REASONS FOR DECISION
Deputy President Dr C Kendall
3 June 2016
INTRODUCTION
This matter requires the Tribunal to determine whether the Applicant should be granted a Bridging E (Class WE) visa.
A delegate of the Minister for Immigration and Border Protection (the “Minister”) decided on 16 March 2016 that the Applicant should not be granted a Bridging E (Class WE) visa. That decision was made pursuant to s 501(1) of the Migration Act 1958 (Cth) (the “Migration Act”). The delegate found that the Applicant did not meet the “character test” in section 501(6)(a) of the Migration Act because he had a substantial criminal record. The delegate then determined that the Applicant posed an “unacceptable risk” to the Australian community and, having so found, exercised his discretion to refuse the Applicant’s visa request.
The Applicant has now appealed that decision to this Tribunal and asks that the delegate’s decision be set aside.
BACKGROUND FACTS
A summary of the background facts to this matter was provided by the Minister in a Statement of Facts, Issues and Contentions dated 29 April 2016 at paragraphs 2-16. That summary was not in dispute and is repeated, where relevant, below.
The applicant is a citizen of Zambia. He first arrived in Australia on 9 May 2008 as a dependent on his mother’s Temporary Business Entry (Class UC) visa (G4 at 13). He was 19 at that time. He is now 26.
Tragically, the Applicant’s mother was killed in a car accident one month after he arrived in Australia. This had a disastrous impact on the Applicant’s life. By his own admission, he began to drink excessively and his life spiralled out of control. In evidence, he revealed that he still blames himself for his mother’s death as she was killed after she dropped him off at a train station on his way to work. He admitted to having a serious drinking problem and hopes to be given an opportunity to address his “inner demons”. Between the time that his mother was killed and his placement in detention the Applicant accumulated 45 criminal convictions, ranging from driving offences (both driving without a licence and drink driving) to serious assault. The last of those convictions occurred just prior to the Applicant being placed in detention.
The Applicant’s father died when he was quite young. He now has three sisters living in Australia. His youngest sister was 14 when her mother died. She is now aged 21. One of the Applicant’s sisters is an Australian citizen, one of his sisters is a permanent resident and one of his sisters holds a student visa. By all accounts, the Applicant is close to all three sisters. He is particularly close to his youngest sister.
The Applicant was granted a Student (Temporary) (Class TU) visa on 23 February 2010. This visa was then cancelled on 20 July 2010 and the Applicant was granted Bridging E (Class WE) visas while the cancellation decision was reviewed by the Migration Review Tribunal (the “MRT”). The MRT ultimately reinstated the Applicant’s Student (Temporary) (Class TU) visa but this visa ceased to have effect on 29 September 2012 (G4 at 13).
The Applicant lived in Australia as “an unlawful non-citizen” from 29 September 2012 until 13 March 2015, when he was placed in an immigration detention centre. He has remained in detention since that time, save for the period between 14 April 2015 to 14 October 2015 when he served a prison sentence at a WA Correctional Facility (G4 at 13).
The Applicant lodged an application for a Protection (Class XA) visa on 17 December 2015. He also lodged an application for a Bridging E (Class WE) visa on 23 December 2015 (G6 at 23-59).
On 11 January 2016, the Department of Immigration and Border Protection (Department) obtained a copy of a National Police Certificate in relation to the Applicant, issued by the Australian Federal Police (G8 at 64-67). The National Police Certificate shows that the Applicant has an extensive criminal record between 2009 and 2015.
Overall, the Applicant has been sentenced to various terms of imprisonment totalling 31 months. As discussed below, this constitutes a “substantial criminal record” for the purposes of section 501(7) of the Migration Act.
ISSUES
The Tribunal must determine whether the Applicant passes the “character test” in section 501 of the Migration Act. If he does not, the Tribunal must then determine whether it should exercise the discretion in section 501 to refuse the Applicant’s visa.
LEGISLATION
Section 501 of the Migration Act deals with refusals or cancellations of visas on character grounds.
Pursuant to s 501(1) of the Migration Act, the Minister (or Tribunal upon review) may refuse to grant a visa to the applicant if an applicant does not satisfy the Minister that he or she passes the character test.
Subsection 501(6) of the Migration Act provides that a person does not pass the character test if the person has “a substantial criminal record”.
Subsection 501(7) of the Migration Act provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more.
Once it has been determined that an applicant does not pass the pass the character test because, for example, they have a substantial criminal record, the Tribunal must then determine whether to exercise its discretion to deny the visa requested under section 501(1) of the Migration Act. When doing so, the Tribunal must direct its attention to Direction No 65 - Visa Refusal and Cancellation under s501 (“Direction 65”) (as required by s 499(2A) of the Migration Act).
Direction 65 was issued by the Minister on 22 December 2014 and is binding on all decision-makers from that date. Direction No. 65 provides guidance to decision-makers on the exercise of their discretion to deny a visa.
Relevantly, the Preamble to Direction 65 at paragraph 6.1 provides as follows:
6.1 Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2)Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
Paragraph 6.2 then provides general guidance for decision makers, as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
Paragraph 6.3 then outlines principles which inform the exercise of the Tribunal’s discretionary powers in relation to visa refusal and cancellation:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Under Section 2 of Direction 65 (“Exercising the Discretion”), paragraph 7 provides guidance as to how decision makers should exercise their discretionary powers when determining whether to grant a visa. That paragraph reads:
7. How to exercise the discretion
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
a)must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa ….
Paragraph 8 then provides:
Taking the relevant considerations into account
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
Part B, relevant to the facts of this case, then sets out considerations that are relevant in exercising the discretion in section 501(1) of the Migration Act. It provides:
Part B
11 Primary considerations - visa applicants
(1) In deciding whether to refuse a non-citizen’s visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian Community.
11.1 Protection of the Australian community
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. 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.
11.1.1 The nature and seriousness of the conduct
(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, decision-makers must have regard to:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
c)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197 A of the Act;
d)The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501 (6)(c), is considered to be serious;
e) The sentence imposed by the courts for a crime or crimes;
f)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
g) The cumulative effect of repeated offending;
h)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
i)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
11.1.2The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle 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 likelihood that it may be repeated may be unacceptable.
(2)In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(3)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending; and
ii.evidence of any 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); and
iii. the duration of the intended stay in Australia.
(4)Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.
11.3 Expectations of the Australian Community
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.
Finally, paragraph 12 of Direction 65 outlines “other considerations” that may be relevant to the Tribunal when determining whether to exercise its section 501 discretion. These include, relevantly, the impact on family members of any refusal to grant a visa.
EVIDENCE
The Applicant appeared before the Tribunal via video link from a detention facility, where he has been detained since March 2015. He was not legally represented. The Tribunal did, however, have access to submissions made on his behalf by a migration agent in proceedings before a delegate for the Minister (G10). The Applicant also prepared a written statement, outlined below.
The Minister was represented by Ms Ladhams. As required, the Minister prepared a bundle of G documents comprising 133 pages. That material was provided to the Applicant prior to the hearing of this matter. As noted above, the Minister also provided a detailed Statement of Facts, Issues and Contentions.
Applicant’s criminal record
The Tribunal was provided with a copy of the National Police Certificate (G8 at 60) issued by the Australian Federal Police dated 11 January 2016. That Certificate records the Applicant’s criminal record between 25 November 2008 and 14 April 2015 as follows:
Court
Court Date
Offence
Court Result
Perth Magistrates Court
14 Apr 2015
No authority to drive - never held and disqualified
Imprisonment: 6 months 1 day concurrent from 14 Apr 2015. License disqualified for 9 months. Cumulative.
No authority to drive - never held and disqualified
Imprisonment: 6 months 1 day concurrent.
Breach of community based order 18 Dec 2013
Imprisonment: 3 months concurrent from 14 Apr 2015.
Breach of community based order 18 Dec 2013
Imprisonment: 1 month concurrent from 14 Apr 2015.
Excess 0.08g/100ml
Fine $1600. License disqualified for 30 months. Concurrent.
Excess 0.08g/100ml
Fine $1200. License disqualified for 17 months. Concurrent.
False name and address
Convicted. Fined $200.
Breach of bail granted undertaking
Imprisonment: 3 months concurrent from 14 Apr 2015.
Perth Magistrates Court
15 Sep 2014
Person who breaches cro or community order without reasonable excuse (3 counts)
Convicted. No penalty imposed.
Perth Magistrates Court
18 Dec 2013
Obstructing public officers
Community based order 12 months. Concurrent.
Breach of police order; restraining orders
Community based order for 12 months. Concurrent.
Breach of community based order
No further order: order satisfied.
Perth Magistrates Court
16 Oct 2013
Unlawfully assault and thereby did bodily harm with circumstances of aggravation
Community based order for 12 months. Concurrent.
Perth Magistrates Court
22 Aug 2012
No authority to drive - disqualified/suspended
Fined $2000. License disqualified for 9 months Cumulative.
False name (driver)
Fined $200.
Perth Magistrates Court
09 May 2011
No authority to drive - disqualified/suspended
Imprisonments 6 months 1 day suspended on entering bond to be of good behaviour 9 months. License disqualified for 9 months. Cumulative.
No authority to drive - disqualified/suspended
Imprisonment 6 months 1 day suspended on entering bond to be of good behaviour 9 months. License disqualified for 9 months. Cumulative.
Excess 0.08g/100ml
Fined $1200. License disqualified for 14 months. Concurrent.
Excess 0.08g/100ml
Fined $1000. License disqualified for 9 months. Concurrent.
Perth Magistrates Court
08 Nov 2010
Unlawfully assaulted with circumstances of aggravation
Intensive supervision order for 9 months. Concurrent.
Perth Magistrates Court
17 Sep 2010
No authority to drive - disqualified/suspended
Fined $500. License disqualified for 9 months. Cumulative.
Drive vehicle contrary to compliance notice (conditions)
Fined $600
Unlicensed vehicle (owner/driver)
Fined $200
No authority to drive – disqualified/suspended
Fined $400. License disqualified for 9 months. Cumulative.
Perth Magistrates Court
03 Jun 2010
Person who breaches cro or community order without reasonable excuse
Fined $200.
Person who breaches cro or community order without reasonable excuse
Fined $200.
Person who breaches cro or community order without reasonable excuse
Fined $200.
Breach of community based order (order 3.6.09)
Community based order for 8 months. Concurrent from 3 Jun 2010.
Breach of community based order (order 3.6.09)
Community based order for 8 months. Concurrent from 3 Jun 2010.
Breach of community based order (order 3.6.09)
Community based order for 8months. Concurrent from 3 Jun 2010.
Perth Magistrates Court
29 Apr 2010
No authority to drive – never held
Fined $500. License disqualified for 3 months. Cumulative.
Excess 0.08g/100ml
Fined $1500. License disqualified for 12 months.
Perth Magistrates Court
15 Apr 2010
Excess 0.08g/100ml
Fined $1200. License disqualified for 8 months.
Excess 0.8g/100ml
Fined $1000. License disqualified or [sic] 7 months.
No authority to drive – never held
Fined $100.
Joondalup Magistrates Court
1 Feb 2010
No authority to drive – never held
Fined $400. License disqualified for 3 months.
Perth Magistrates Court
3 Jun 2009
Aggravated assault occasioning bodily harm (3 charges)
On each charge. Community based order for 12 months.
Fremantle Magistrates Court
20 Jan 2009
No authority to drive
Fined $200. License disqualified for 3 months. Concurrent
Perth Magistrates Court
13 Jan 2009
Excess 0.05g/100ml
Fined $150.
No authority to drive
Fined $200. License disqualified for 3months. Concurrent.
Perth Magistrates Court
5 Nov 2008
Excess 0.08g/100 ml
Fined $500. License disqualified for 4 months. Concurrent
False name (driver)
Fined $300. License disqualified for 3 months. Concurrent.
No authority to drive
Fined $200. License disqualified for 3months. Concurrent
Excess 0.05g/100ml
Fined $150. License disqualified for 3 months. Concurrent
No authority to drive
Fined $150. License disqualified for 3 months. Concurrent.
A useful summary of this criminal record was outlined in the Department of Immigration and Border Protection’s “Submission for Decision to Delegate of the Minister for Immigration and Border Protection” dated 16 March 2016 (T4 at 12). Relevantly, that summary highlights the following in relation to the Applicant’s criminal record:
16.On 14 April 2015, Mr ... was convicted in the Perth Magistrates Court of the following offences for which he was sentenced as shown:
•No authority to drive - never held and disqualified - six months and one day imprisonment, licence disqualified for nine months;
•No authority to drive - never held and disqualified - six months and one day imprisonment;
•Breach of community based order - three months imprisonment;
•Breach of community based order - one month imprisonment;
•Breach of Bail Granted undertaking - three months imprisonment
17.On the same date, Mr ... was also convicted of two counts of excess blood/breath level (0.08g) and providing a false name and address, for which he was fined a total of $1800 and his licence was disqualified for 30 and 17 months respectively.
18.On 9 May 2011, Mr ... was convicted in the Perth Magistrates Court of two driving offences - No authority to drive - disqualified/suspended and was sentenced on each count to six months and one day imprisonment. He was also placed on good behaviour bonds and his licence was disqualified.
27.Mr ... has been convicted in the Perth Magistrates Court of the following offences which are considered to be especially serious due to their violent nature:
•2009 - Aggravated assault occasioning bodily harm (three counts)
•2010 - Unlawfully assaulted with circumstances of aggravation.
•2013 - Unlawfully assault and thereby did bodily harm with circumstances of aggravation.
33.Mr ... has a criminal history in Australia spanning seven years. He commenced offending in November 2008, just over six months after his first arrival and has over 45 convictions recorded against his name. His offending is mostly driving related however he has also engaged in violent behaviour and breached the provisions of community orders on several occasions.
In oral evidence before this Tribunal, the Applicant was cross examined extensively on the nature of his driving offences and the circumstances surrounding his convictions for assault. The Tribunal notes the following further details in relation to the Applicant’s convictions.
The Applicant has been sentenced to a total of 31 months imprisonment. Some of this time was suspended, and some of it cumulative, with the effect that he served six months in prison. His offending has been quite frequent, with approximately 45 offences in a period of less than eight years, between November 2008 and April 2015. Further, his offending continued right up until he was taken into immigration detention.
The offences for which the Applicant has been sentenced to a term of imprisonment relate primarily to driving offences. There is also a breach of a conditional order and a breach of a bail undertaking. There are numerous driving offences related to drink driving. He has also been convicted on at least three occasions of aggravated assault causing bodily harm.
In relation to these assaults, under cross examination the Applicant explained that he was intoxicated when these events occurred. He explained that one of the assaults (that being in October 2013) involved his then girlfriend and that it resulted from an argument he had had with her. He explained that he restrained her and held her down in order to try and reach “a mutual understanding”. He also indicated that he may have slapped her. The National Police Certificate reveals that the Applicant’s girlfriend sustained an injury on that occasion. As noted further below, it appears that this offence occurred while the applicant was undertaking a violence rehabilitation program with “Families Without Fear”. The evidence shows that there was a further domestic incident not long after this one in December 2013. On that occasion, the Applicant was not charged with assault, but he was issued with a 72-hour restraining order, which he subsequently breached by returning to the home he shared with his girlfriend.
An assault-based offence is also recorded as having occurred in November 2010. The Applicant explained that this involved an assault on a male friend of similar age. In his words it involved hitting and “a punch up” at a house party. The conduct was sufficiently serious for others attending the party to call the police.
A set of assault charges also occurred in June 2009. Having again been drinking heavily, the Applicant assaulted two women at a party after a dispute about the cleanliness of a bathroom. By his own admission, the Applicant restrained one woman and pushed another. After leaving this party, the Applicant returned the next morning, some 10 hours later, and was told that one of the victims would be pressing charges. He proceeded to push and shove that female victim again, thereby committing a further assault.
Applicant’s witness statement
The Applicant prepared a witness statement dated 29 January 2016 (G14 at 82), which reads as follows:
· I was born on the 16th September 1989, in Lusaka Zambia.
· I have no right to reside or enter any other countries.
· I first arrived in Australia on the 09th May 2008 under a 457 visa, sponsored under B… (mother).
· I was only 19 years of age when I first arrived.
· I flew into the country with one of my siblings. A (sister) who is now an Australian citizen.
· A month plus into my stay in Australia, I lost my mother … in a car crash on the 1st May 2008.
· I lost my father (…) at a very young age whilst my family and I still resided in Zambia, B then decided to migrate to Australia, a few years after.
· She enrolled herself into university to study Bachelor of science.
· After her graduation she was sponsored by the Freemantle Hospital as she worked there as a Registered Nurse.
· After my mother’s death, I fell off the wagon and resorted to alcohol consumption. I fell into a deep depression and everything that mattered to me seemed not to any more.
· All the misery turned into nightmares and restless nights, could not help but blame myself for her death for she had to drop me off at the nearest train station so I could make it in time for work. I was the only one that saw her alive that morning. I lost my focus and became a slave to the alcohol, which turned into driving under the influence, drinking out of a broken system made me angry and violent sometimes. I got into trouble with the law. I also got help from counselling sessions at Relationships Australia, communitycare and serynian house which I successfully completed.
· I was also advised I could not stay on my mother’s visa after she had passed on so I applied for a student visa.
· I then enrolled myself into TAFE to study electro technology .
· I had quite a lot on my plate being in a country I did not understand much about. I was young with no real drive and focus so I could not finish my studies for I had not saved enough to get me through the course.
· I have been unlawful in the country for quite a few years.
· Living unlawful in Australia has been an extreme challenge for me, an eye opener for I got to a stage I needed to fix my life but it was impossible to do so without a valid visa, I could not go to university or work in as much as I wanted to.
· I believe my mother’s death has had a great impact on how my life has turned out.
· I admit I have done things that I am not so proud of.
· I believe the last chapter of my life has not been written yet, my time is limited and I do not want to waste my life.
· I have the courage to follow my heart and intuition to become a better me.
· I want to help bring the awareness of drink driving into the community, for I personally lost a parent to a car crash I do know exactly how that can affect one’s life.
· I want to farther my studies and complete my course so I could at least positively contribute to the Australian community, I know I am going to have some ups .and downs but l refuse – to give up on myself easily.
· I have made my declaration to take full responsibility of my life, I have accepted where I am, I understand there is nothing in my past I can change, I accept the responsibility that lies ahead of me.
· I am fully aware of the seriousness of my past offences and I take foil responsibility of my actions.
· I am sincerely sorry to all those who have been affected by it; my family and friends, most of all for putting the community at risk.
· I personally lost my mother to an accident and only God knows I could not live with myself knowing I had caused such a tragedy to another family for I know first-hand what something like that can do to one.
· If granted the visa I will respect all rules, conditions and boundaries imposed.
· I am prepared to follow, provide and comply with all which the department requests, recommends or suggests of me, obey and abide to the law regardless.
Extract from Applicant’s Personal Details Form dated 29 January 2016 (G15 at 90)
An extract from this form, completed by the Applicant, reads as follows:
Do you have any concerns or fears about what would happen to you on return to your country of citizenship? If yes, please describe your concerns and what you think will happen to you if you return.
All my immediate family (most) are in Australia and I have no one I can return to in Zambia, my welfare will be affected to an extent I will be homeless, no food, education or even have anyone there. My extended family is unknown of there where about and Australia is my new home.
NOTE - If you want to provide any additional information, you can use this blank page and the other side of this sheet, and/or attach further sheets to this form.
Your partner/ children/ relatives or any other person can provide letters of support for you, describing what the effect your removal from Australia would have on them, if they wish to do so. Letters can be enclosed with this form or sent separately.
My mother was put to rest at the Pinnaroo Valley Memorial park, Padbury, Western Australia.
I have so far missed one of her memorial services and I have been greatly affected by it emotionally.
Her grave sight [sic] is all I have. I ask if this can be put into consideration. I have lost her once and if I cannot attend her memorial services it would be like me losing her over again.
Reference letters
The Applicant also filed and relied on a series of letters in support of his visa application. These were from family members and community organisations.
These references included a letter from the Applicant’s youngest sister (undated) (G11 at 77), which reads as follows:
My name is A, ...'s youngest sister. Both ... and I arrived here in Australia in May of 2008, with big hopes and dreams of a better life. Following our arrival, life looked like it was heading in the right direction, finally being reunited with our mother and siblings after four years of separation. The reunion was lovely end warm, my heart felt at home.
Prior to that, our mother had left all her children in the care of our new retired, frail and ill grandmother whom she supported financially as well Whilst our older siblings joined our mother here in Australia two years later, my brother remained my protector. Our bond only grew stronger and as much as I longed to be with mother, he kept me focused on the better future we looked forward to once our mother had enough money for us to join tier. Bare [sic] in mind I was only 9 when my mother left for Australia and, ..., at age 15, managed to take up responsibility and made sure I never felt lonely and always held my hand when I did
Two months after our arrival, we weren’t expecting a sudden change in our lives and it's safe to say our lives were turned upside down, What looked to be a start: of a better life felt like the end of the world. I couldn't, and sometimes still can't comprehend why events happened the way they did. Our mother, the only breadwinner of the family, was involved in a fatal car accident, we were on our own.
Without trying to dig too much in the past, I'd like to express that all of us siblings grieved in different ways and picking up as if the tragic event never happened was even harder, and I’d like to think even harder on ... as he was the last person to see our mother that morning. The accident occurred after she had dropped him off at a train station as he was heading to work. It has only occurred to me that deep down he couldn’t help but blame himself for that morning.
... is a hardworking person who has unfortunately found the bottle and poor company to have been a distraction in his life. With the current events that have occurred, including spending this amount of time in detention, I believe he is a changed man. Throughout my visits I see a different person who wants to better himself and make a positive outcome out of this dreary situation. He talks about returning to school, changing his circle, attending AA meetings to curb his alcohol problem and just being a good and noble individual in the community. I hardly doubt he would continue on the path he was prior to this eye-opening circumstance if he is given the opportunity to return into the Australian community. Just as he was a positive influence in my younger days, I aim to be his positive influence from now on and forever and I hope that my belief in him is enough for you to believe that he wants to be a better individual.
Family is really important to me and moving to a foreign country, my brother has played a big part in helping me adjust and make Australia feel like home, I’m saddened just at the thought of not having him a few minutes away from me. It has been a hard adjustment for me in the last year since his admission into the detention centre. Amongst other personal struggles was facing at the time of his admission and at present time I got in really bad shape (mentally) that I had to see a counsellor at Curtin University (where I’m completing my Bachelors degree) to help me cope. I felt helpless not knowing how I could help him when he has always helped me yet he put me first when he found out how I was dealing with it all. He’s my protector and, having lost our father 14 years ago, ... has been a symbol of a father figure in my life. It would be devastating for me to not have him close to me and it would cause immense emotional strain in my life that just the mere thought of it brings me to tears.
Whilst focusing on how my life would be affected if he left the country, I’d also think of how his life would change for the better if he is given that opportunity to stay here in Australia. There is not much else left in our home country for us, there is nothing for us to claim our own. When our father passed on in 2002, our mother sold all our possessions in order for her to make a life for us here in Australia. A great sacrifice for her children. The opportunity … gets here to better himself is so much better than the poverty and struggle he would face if he went back to Zambia. Only those who have chosen to return on their own volition are born from affluent homes, of which we are not.
The Tribunal also notes a letter from the Applicant’s oldest sister (G12 at 80), which reads:
I was recently made aware of ...'s case and all the charges against him, I was not aware of all these incidents until his arrest in April 2015. I was also only informed about his visa status by the agent handling his case. ... has never been very open about his visa status to me as he continued to live in denial since the passing of mum.
When Mother left Zambia in 2004 after selling everything we had in the hopes that she can better hers and her children's future, she left us in the care of her mother who provided us with accommodation, she continued supporting us from overseas with a bit of money that was left over from the sales of the property. In 2005 I joined mum in Australia, leaving ... and A back in Zambia with our grandmother. ... took the responsibilities of looking after A, he took the role of dad and he did it beautifully as he was always there for A. He has always been a responsible man from way back he was even a high school head boy at the school he was.
Since mum's passing which even though he has never opened up to share his deep feelings left him very devastated. We all grieved differently sad to say my brother found solace in drinking alcohol while trying to be strong for our youngest sister and making sure she never felt lonely. ... played a big role in helping our young sister such that none of us realised that he needed a shoulder to cry on too.
The passing of mum had a very devastating impact on us in different ways, while my brother found solace in alcohol, I was quite suicidal, on one occasion I felt so hopeless that my only solution was to drown myself and just end it all. I was found by the police after my friend tipped them about my strange facebook post in 2009, several occasions I have found myself in a very dark place wishing my mother was still alive. As for my brother I want to believe he only drinks to numb his pain. Our dreams our hopes were all shuttered on that dark day when our mother who was the only pillar we had died, it made it worse us been [sic] in a foreign country and knowing for sure that we had nothing left in Zambia to go back to.
I believe my brother has had a lot of time to rethink his behaviour and is remorseful for everything he has done. I cannot say for sure how he is going to change but I know he regrets his behaviour and he is capable of turning his life around.
The Tribunal also notes a letter from the Applicant’s brother-in-law (G13 at 81), which reads:
I am writing as …’s brother in-law and would like to passionately appeal to the Australian Government to consider letting … remain here in Australia. Deporting him to Zambia will cause him significant economic hardship that would threaten his capacity to subsist and fend for himself.
The reality is that when … arrives in Zambia, he will immediately be confronted with significant challenges Zambian youth face including high unemployment rates, poor quality of education and educational opportunities, none existent social and healthcare support, limited civic engagement opportunities and high HIV prevalence rates. According to the Central Statics office website in Zambia, only 11.3% of the population of 14.4 Million are formally employed. Furthermore, only 9% of the youth population are formally employed. The reality then is that the majority of the youth fail to find jobs despite having attained tertiary qualifications and many end up engaging in bad vices such as beer drinking, prostitution, criminality, drugs and many other antisocial behaviours that undermine the stability of society in general and destroys the individual in particular.
That is the reality that awaits … on his return to Zambia. His Situation is even more dire because he does not possess any tertiary qualification to enable him compete for a job in the tightly contested job market While he has family in Zambia, none has the economic ability to provide him with food, shelter and clothing.
My appeal is for him to be allowed to remain in Australian as he stands a better chance of reforming himself and make a positive contribution to the Australian community unlike rendering him destitute by deporting him.
I look forward to your favourable consideration.
The Tribunal also notes a letter from the organisation “Zambians Living in Western Australia” (G21 at 98), which, relevantly, reads:
Introduction
The Organization of Zambians Living in Western Australia (OZALIWA) an incorporated not-for-profit association representing the Zambian community in WA as well persons in the general WA community who have an interest in the objectives of the Association.
….
Reference
Mr … has been a member of the Zambian community in Western Australia since 2008 when he arrived in Australia to live with his mother (now deceased) and 3 sisters.
He has attended various community events organised by our organisation and on the basis of those interactions, has presented as a well mannered member of our community.
I understand that the Department has been made fully aware of Mr …’s tragic circumstances and the difficulties he has faced since arriving in Australia.
In particular, the death of his sole surviving parent soon after his arrival in Australia caused a downward spiral, culminating in the present situation where he faces potential deportation to Zambia.
The death of his mother not only deprived Mr … of the financial means to complete his education and make the most of the opportunity to live in Australia. It has also had a devastating emotional impact on him which, in addition to poor friendship choices and alcohol abuse, led to various criminal penalties being levied against him in the intervening years.
Save for some distant relatives and an elderly grandmother, Mr … has no immediate family left in Zambia and no means to secure any form of emotional or financial support, should he be sent back. We note also that this may also have an adverse impact on his immediate family, in particular his younger sister for whom Mr … has taken on the role of a father figure.
I am informed that the prospect of being separated from his only surviving immediate family has had a sobering effect on Mr … and he is determined to start afresh, make the most of the opportunities on offer and become a positive and law abiding contributor to the West Australian community.
As a community, we are disappointed that Mr … finds himself in this position, in part due to the fact that more support should have been provided by our community and this organisation, after the death of his mother. In that regard, we as a community are prepared to take every step within our means to ensure that Mr … becomes a productive and law abiding member of the broader community.
On this basis, we respectfully ask that due regard be given to Mr …'s unfortunate personal circumstances in the consideration of his character, and his application to stay in Australia.
Employment and Education History
The Tribunal notes letters from the Applicant’s former employers, as follows:
·Employment letter from Chandler McLeod dated 27 January 2016 (G16 at 92)
·Employment letter from Nursing Australia dated 19 January 2016 (G17 at 93)
·Employment letter from My Flex Health International dated 20 January 2016 (G19 at 95)
During oral testimony, the Applicant gave evidence that he had also been employed by Woolworths and Performance Paving.
In relation to his education, the Applicant gave evidence that when he lived in Zambia he was a top student and head of his class in high school. In Australia, he enrolled in a course at TAFE but had to withdraw because he could not afford the fees and was struggling with transportation to and from college.
Applicant’s access to counselling services
In evidence, the Applicant indicated that he had attended four counselling/support programs. These were:
1)Relationships Australia: Relationships Australia is a leading provider of relationship support services for individuals, families and communities. The organisation offers services that include counselling, family mediation and a range of family and community support and education programs.
2)Communicare: Communicare is a not-for-profit organisation offering community support services. Relevantly, it offers a residential domestic violence men's behaviour change program and a behaviour change program to men who have been abusive in their intimate partner relationships. Participants who have recognised Alcohol and Other Drugs issues may also have access to Communicare’s Co-morbid Alcohol and Other Drugs/Domestic Violence (AOD/DV) Prevention and Intervention Program.
3)Families Without Fear (discussed further below); and
4)Cyrenian House: Cyrenian House is a not-for-profit non-government organisation that has been operating within the alcohol and other drug (AOD) sector since 1981.
The Applicant indicated before this Tribunal that he did not complete the program with Relationships Australia. He did complete the program with Communicare. The Applicant attended three counselling sessions at Cyrenian House.
All of these programs, other than that involving Cyrenian House, were undertaken as a result of court or police referrals.
The Tribunal notes a letter from Families without Fear (at G19), which reads as follows:
This letter is an attestation to ….’s attendance at the Families without Fear program from 30th of July 2013 through to 29th October 2013.
Families without Fear is a 13 week intervention program offered to men in the community who have perpetrated family and domestic violence. The program provides participants the opportunity to address abusive behaviours with the aim of moving towards safety for their (ex)partner, children or other family members.
Although the Applicant has attended at Cyrenian House, which is a facility that assists people with alcohol-related dependency issues, he only attended three sessions. It does not appear that the Applicant received any counselling in relation to his substance abuse issues from any of the other organisations he attended. If he did, that counselling was limited. Before this Tribunal, the Applicant indicated that he had not been drinking while in detention and he was keen to address his alcohol consumption issues once back in the community. He indicated that much of his criminal record could be related to his drinking problems. He expressed considerable remorse for what had happened.
CONSIDERATION
Does the Applicant pass the character test?
The Applicant has convictions for which he has received custodial sentences totalling more than 30 months. This constitutes “a substantial criminal record” as per section 501(7) of the Migration Act. It is irrelevant that the Applicant only served 6 months in gaol. As the Full Federal Court explained in Brown v Minister for Immigration and Citizenship [2010] FCAFC 33; (2010) 183 FCR 113, 117 at [114] per Nicholas J, the fact that the Applicant was sentenced to a term of imprisonment for longer than twelve months satisfies the requirements of the sub-section regardless of whether the sentence was executed or completed.
As per section 501(6), the Applicant does not pass the character test. There is thus no doubt that the discretion in s 501 to refuse a visa on character grounds has been enlivened.
Should the discretion to refuse the Applicant’s visa be exercised?
In exercising the discretion, the Tribunal is required to take into account Ministerial Direction 65, the relevant sections of which are outlined above.
As per Direction 65, the Tribunal is required, in exercising its discretion, to take into account three primary considerations where they are relevant:
1)the protection of the Australian community from criminal and other serious conduct;
2)the best interests of minor children in Australia; and
3)the expectations of the Australian community.
There are also secondary considerations that the Tribunal can take into account where relevant. These include Australia’s international non-refoulement obligations and the impact of a visa refusal on the Applicant’s family members.
The Protection of the Australian community from criminal and other serious conduct
There are two aspects of this primary obligation that the Tribunal needs to consider when exercising its discretion:
1)the nature and seriousness of the Applicant’s conduct; and
2)the risk to the Australian community.
In relation to the nature and seriousness of the Applicant’s conduct, the Tribunal notes that the majority of the Applicant’s offences for which he was sentenced to a term of imprisonment are driving related. Related to those offences is a breach of a conditional order and a breach of a bail undertaking. It is noted that some of these driving offences relate to driving while over the alcohol limit. This is significant. Driving while under the influence is indeed a serious issue and one that few in this country should be expected to tolerate. The risks associated with it are serious and sometimes disastrous, resulting in loss of life or physical injury.
Further, the Applicant has been convicted on at least three occasions of aggravated assault causing bodily harm. Based on the evidence before it, the Tribunal finds that these were violent offences and are to be viewed quite seriously. The Applicant has showed a clear disregard for the physical and psychological safety of those around him. The excessive consumption of alcohol offers no excuse in this regard as it offers little comfort to those who were assaulted by the Applicant when he was intoxicated.
The length of the Applicant’s record is something the Tribunal takes quite seriously. As correctly noted by counsel for the Minister before this Tribunal, the Applicant’s offending has been frequent. He has had approximately 45 offences in a period of less than eight years and has faced court on 16 separate occasions. Further, his pattern of offending continued until he was detained in an immigration detention facility.
Noting paragraph 11.1.1 of Direction 65, the Tribunal finds that Australia has a low tolerance of any criminal or other serious conduct by visa applicants, reflecting that there should be no expectation that people who engage in criminal or other serious conduct should be allowed to come to, or remain permanently in, Australia. The Australian community takes issues of this sort quite seriously and has every right to do so. The Tribunal finds that the conduct outlined above is criminal and serious conduct and the community must be protected from it.
These considerations support the exercise of the discretion to refuse to grant the Applicant a visa.
Risk to the Australian Community
In relation to this issue, the Tribunal notes that submissions made by the Minister in its Statement of Facts, Issues and Contentions as follows:
33…. the following considerations are relevant, taking into account paragraph 11.1.2 of Direction No 65:
33.2.The nature and harm to individuals or the Australian community has the potential to be significant if the applicant were to engage in further criminal or other serious conduct. If the applicant commits further assaults, the potential harm to individuals is physical injury. If the applicant engages in further driving offences, including driving under the influence of alcohol, there is a risk that he may cause a motor vehicle accident, which may cause physical injury or death to other individuals.
33.3.The applicant has expressed remorse for his conduct and says in his statement that he has accepted responsibility for his actions. He has attributed much of his conduct to his problems with alcohol. The applicant in his statement and his younger sister in her statutory declaration both suggest that he now changed for the better and the applicant says that he will obey the law if he is granted a visa.
33.4.The applicant has also provided evidence that he completed a program with Families Without Fear.
….
34.The respondent contends that, on balance, considerations relating to the protection of the Australian community support the exercise of the discretion to refuse to grant the applicant a visa. The applicant has an extensive record over a 7 year period and he continued to offend right up until the time he was taken into immigration detention. His offences include violent offences, which are viewed as serious, and the potential consequences to individuals and the community if he continues to reoffend are significant. Although the applicant has undertaken a program with Families Without Fear and says in his statement that he will obey the law if granted a visa, taking into account the frequency of the applicant’s offending until the time he was taken into immigration detention, there remains a real possibility that he will reoffend.
Before this Tribunal, the Applicant stressed that he was deeply remorseful for what had happened. He also stressed that much of his past behaviour resulted from a problem with alcohol and that he was now of the opinion that he had dealt with his demons and the violence that resulted from the tragedies of his youth. The Tribunal also notes the statements by his family that he is now reformed and the evidence from the Zambian community that they will seek to assist the Applicant when he is released from detention.
In relation to the Applicant’s rehabilitation history, the Tribunal expresses concern that the Applicant committed a serious assault even after attending four separate rehabilitation programs, all directed at addressing anger and violence related issues. This is significant. The Tribunal further notes that despite having a clear problem with alcohol, the Applicant has done little to address this issue.
In the circumstances, the Tribunal is not persuaded that the Applicant will not reoffend in the future and, in so doing, put the Australian community at risk. These considerations support the exercise of the discretion to refuse to grant a visa to the Applicant. The Tribunal agrees with counsel for the Minister before this Tribunal that the potential for serious harm to members of the community, the lack of effective rehabilitation and the untested nature of the Applicant’s claims to have been reformed and his desire to turn his life around are such that there is a risk to the Australian community if the Applicant is granted a visa.
The best interests of minor children in Australia
This is not an issue in relation to this matter as there is no evidence that there are any minor children living in Australia whose interests will be negatively affected if the Applicant is denied a visa.
Expectations of the Australian community
In relation to this issue, the Tribunal notes the principles set out in paragraph 6.3 of Direction 65 (outlined above) and paragraph 11.3(1) of Direction 65 in relation to the expectation that non-citizens will obey Australian laws. As detailed above, the offences for which the Applicant was convicted are both numerous and serious. Some involve driving while under the influence. Others involve violence directed at the Applicant’s girlfriend, other women and friends. All cover a span of many years and reveal a lack of respect for the laws and institutions central to social cohesion and good governance in this country. In these circumstances, the Tribunal finds that the Australian community would not expect the Applicant to be granted a visa.
Other considerations
Having regard to the other considerations outlined in paragraph 12 of Direction 65, the Tribunal notes that the only consideration relevant to the hearing of this matter is that which asks the Tribunal to examine the impact on family members should the Applicant’s visa be denied. The Tribunal agrees with counsel for the Minister that any issues, such that they exist, in relation to Australia’s non-refoulement obligations will be addressed elsewhere. Noting the provisions of paragraph 12.1(4) of Direction 65, this issue does not need to be considered in the present case. The Applicant’s protection claims will be assessed separately. He has review rights and is exercising his review rights in relation to a protection visa. If ultimately it is found that the Applicant is owed protection obligations by Australia, any issues in relation to character will be considered again and the non-refoulement obligations will be considered at that point.
In relation to the impact on family members, the Tribunal notes the comments made by the Applicant’s youngest sister, now aged 21. The Tribunal expresses considerable sympathy for her. She will, not surprisingly, given how close she is to her brother and given their shared experiences, feel a deep sense of loss and distress if he is deported. While noting this, however, the Tribunal also notes that the Applicant’s youngest sister is not a minor and is not financially dependent on the Applicant. She also has access to two other sisters in Australia and appears to be well settled in this country, having successfully enrolled in a university course. While this young woman may well suffer some adverse emotional consequences if her brother returns to Zambia, the Tribunal does not find that this consideration outweighs the primary considerations outlined above.
The only other issue that this Tribunal has been asked to address (as it was raised by the Applicant during the hearing of this matter) relates to the degree of hardship he will face if he returns to Zambia. In that regard it is noted the Applicant has few remaining relatives in that country and does not have a university qualification to assist him in the employment market. The Tribunal also notes, however, that the Applicant did live in Zambia until he was 18 and was, by all accounts, respected and well-adjusted there.
On the evidence, the Tribunal finds that while the Applicant will face some hardship upon his return to Zambia, this consideration does not outweigh the primary considerations outlined above.
CONCLUSION
For the reasons outlined above, the decision under review is affirmed.
I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr C Kendall. ............[sgd D Brodie]...........................
Administrative Assistant
Dated 3 June 2016
Date of hearing 27 May 2016 Representative of the Applicant In person (unrepresented) Representative of the Respondent Ms A Ladhams Solicitors for the Respondent Australian Government Solicitor
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