Onwong'a and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2021] AATA 4631

Onwong'a and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4631 (14 December 2021)

Division:GENERAL DIVISION

File Number(s):      2021/6809

Re:Clifford Matwetwe Onwong'a

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr Robert Reitano, Member

Date:14 December 2021

Place:Sydney

I affirm the delegate’s decision refusing to revoke the cancellation of Mr Onwong’a’s Class WE Subclass 050 Bridging E visa.

..........................[sgd]..............................................

Mr Robert Reitano, Member

CATCHWORDS

VISA CANCELLATION – mandatory cancellation under s 501CA – whether an intensive corrections order counts as ‘imprisonment’ for the purposes of s 501 – whether there is another reason to revoke – protection of the Australian community – drink driving offences – expectations of the Australian community – strength, nature of duration of ties – outstanding study to be completed – decision under review affirmed.

LEGISLATION

Migration Act 1958 (Cth) s499, 501, 501CA

CASES

Brown v Minister for Immigration [2010] FCAFC 33

FYBR v Minister for Home Affairs [2019] FCAFC 185

Hands v Minister for Immigration and Border Protection [2018] FCAFC 225

SECONDARY MATERIALS

Direction 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.

REASONS FOR DECISION

Mr Robert Reitano, Member

14 December 2021

1. Clifford Matwetwe Onwong’a (Mr Onwong’a) entered Australia on 15 June 2016 at which time he held a Student (Class TU) (Subclass 573) visa. Mr Onwong’a most recent visa is a Class WE Subclass 050 Bridging E visa (the visa) which was granted to him when his earlier visa expired.

2. On 2 February 2021 a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) was satisfied that Mr Onwong’a failed the character test under s.501 in the Migration Act 1958 (Cth) (Act) because he had a substantial criminal record as the result of having been sentenced to a term of imprisonment of 12 months or more. Mr Onwong’a was, at that time, serving a full-time sentence of imprisonment in St Helier’s Correctional Centre at Muswellbrook in New South Wales for an offence against the laws of New South Wales. Both those things meant that the Minister was required by s.501(3A) of the Act to cancel the visa. At the same time, the Minister invited Mr Onwong’a to make representations to him about why the Minister should revoke the decision cancelling the visa, as he was also required to do by s.501CA(3)(b).

3. On 8 February 2021, Mr Onwong’a accepted the Minister’s invitation and made written representations about why the Minister should revoke the decision cancelling the visa. There was some further subsequent information provided to the Minister about why the cancellation should be revoked after that.

4. On 21 September 2021, a delegate of the Minister decided to refuse Mr Onwong’a’s request to revoke the decision cancelling the visa. The effect of that decision, if left in place, is that Mr Onwong’a will be required to leave Australia and return to Kenya.

5. Mr Onwong’a has asked the Tribunal to make a decision setting aside the revocation of the visa because he says that he does not fail the character test in the Act or, alternatively, because there is another reason the decision revoking the visa should be set aside.

6. I have decided that Mr Onwong’a does fail the character test in s.501 of the Act and that there is not another reason to set aside the decision to revoke the visa and I will affirm the delegates decision refusing the revoke the visa. I set out my reasons for that decision.

   BACKGROUND

7. Mr Onwong’a is 30 years old. He was born in Kissi in the Republic of Kenya (Kenya) and is a citizen of Kenya. Until he came to Australia in 2016, shortly before he turned 25 years of age, he had lived in Kenya for the whole of his life. His reason for coming to Australia was to achieve a better education and to ‘propel [him] to greater heights in [his] future career’. His focus was to study courses in business and commerce.

8. His mother, father, two sisters and brother live in Kenya. He has an aunty who he is close to who also lives in Kenya. Mr Onwong’a has some family in Australia, who are residents of Australia, including two aunts and three cousins. He also has several other aunts and uncles, cousins, nieces and nephews in Australia. All of his family, at least so far as those to whom he is close who live in Australia and in Kenya, are citizens of Kenya. Some of those living in Australia are permanent residents.

9. Since arriving in Australia, Mr Onwong’a has completed a Certificate III in Individual Support, which I understand to be relevant to his nursing work, and a Diploma in Business and Commerce. He is part way through completing a Bachelor of Business and Commerce at the University of Newcastle. He has another year to complete before he obtains his degree, but because he cannot do that at the University of Newcastle he has enrolled in the Polytechnic Institute of Australia where he will, if permitted to remain in Australia, be able to complete his degree.

10. He has worked in several different positions since he arrived in Australia including as a car wash attendant, a cleaner, a clerk with an insurance company, a support worker for youth for about one year, and as an assistant nurse in an aged care facility for about four years.

11. Also since arriving in Australia, Mr Onwong’a has accumulated a record of criminal offending that involves repeated offences of driving with a prescribed content of alcohol in his blood and driving whilst disqualified.

12. I will deal with some of the detail of Mr Onwong’a’s offending later, but for now it is only necessary to refer to the fact that on 18 July 2018, Mr Onwong’a was dealt with for offences of having driven a motor vehicle with a mid-range prescribed content of alcohol in his blood and driving whilst disqualified. He was sentenced to an aggregate term of 15 months imprisonment with an indicative term for each offence of nine months imprisonment. The formal orders in the Court Order Notice said that Mr Onwong’a was sentenced to an aggregate term of 15 months imprisonment. That sentence was to be served by way of an intensive corrections order in the community. I will say some more about the sentence later.

13. On 2 February 2021 Mr Onwong’a was in prison at St Helier’s Correctional Centre at Muswellbrook in New South Wales, serving a sentence of imprisonment of five months as result of an offence of driving whilst disqualified which he was sentenced for on 26 October 2020. He was notified that his visa had been cancelled that day.

14. I will refer to and consider some of the other facts that are relevant to specific matters that are relevant to this decision later.

    THE ISSUES

15. There are two issues to be considered both arise from s.501CA(4) of the Act. That section contains the only two bases upon which the Minister, and in this review the Tribunal standing in his shoes, may revoke the decision cancelling the visa.

16. Section 501CA(4) of the Act provides:

    (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.

17. Section 501CA(4) permits the Minister, and the Tribunal standing in his shoes in this review, to revoke a decision cancelling a visa on two particular grounds: first, if the person passes the character test in s.501 of the Act and second, if there is another reason why the decision cancelling the visa should be revoked. I will consider each ground separately.

    THE CHARACTER TEST

18. The character test is set out in s.501(6) of the Act, but it is not necessary for present purposes to set out the whole of the section.

19. Sub-section 501(6)(a) provides that a person does not pass the character test if the person has a ‘substantial criminal record’ as defined by subsection 7.

20. Sub-section 501(7)(c) provides that person has a substantial criminal record if ‘the person has been sentenced to a term of imprisonment of 12 months or more.’

21. Sub-section 501(12) provides that in s.501 ‘imprisonment includes any form of punitive detention in a facility or institution’. The definition does not take away the ordinary definition of ‘imprisonment’ but rather extends it to include the to the things to which the section refers presumably if they were not already contemplated by that definition.

22. Sub-section 501(12) defines ‘sentence’ to ‘include any form of determination of the punishment for an offence’. The definition of ‘sentence’ is also an extended definition that does not take away from its ordinary meaning.

23. Mr Onwong’a was sentenced to a term of 15 months’ imprisonment. Apart from the fact that the sentence was for Mr Onwong’a to be imprisoned for more than 12 months, the order by its terms ‘determined’ that his punishment for the offences he was convicted of was punitive detention in a facility or institution. It was punitive because it involved deprivation of his liberty and was responsive the fact of the commission of the offences. It was in a ‘facility’ or ‘institution’ because of the use of the word ‘imprisonment’. The intensive corrections order meant that he was not required to serve his 15-month sentence in a ‘facility’ or ‘institution’, but that did not at all take away from or change the sentence that was imposed.

24. The question here is much the same as the question dealt with by the Full Court of the Federal Court of Australia in Brown v Minister for Immigration [2010] FCAFC 33. The context in Brown concerned a suspended sentence rather than an intensive corrections order, but the reasoning there applies in the same way here. In Brown the Full Court held that the focus of s.501(7)(c) and (d) was upon the length of the time for which a person is sentenced and not the manner the sentence is to be, or subsequently may be, served. This was because the sentence imposed and the length of the sentence reflected the quality of the offence, in particular its seriousness.

25. Mr Onwong’a was sentenced to a term of imprisonment of 15 months, that is, imprisonment for more than a period of 12 months, within the meaning of s 501(7)(c). That sentence of imprisonment remained the determination of his sentence, regardless of the fact that sentence was subject to an order containing conditions that it could, or at least part of it could subject to the conditions being met, be served in the community.

26. The sentence meant that Mr Onwong’a had a substantial criminal record because he had been sentenced to a term of imprisonment of 12 months or more which, in turn, means that he failed the character test in s.501.

27. Mr Onwong’a suggested that he did not fail the character test because Direction 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction), which I will refer to and explain the relevance of shortly, at ‘Annex A – Application of the character test’ at Section 1 ‘Overview of the character test - Mandatory visa cancellation’ in paragraph (2)(k) provides that the term ‘serving a sentence of imprisonment on a full time basis does not include periodic detention or home or residential detention’. It is, however, clear that that part of the Direction is not dealing with the character test, but rather addresses the requirement in s.501(3A)(b) requiring the Minister to be satisfied that Mr Onwong’a ‘was serving a full-time sentence of imprisonment in a custodial institution’, which he was at the time the Minister cancelled the visa. That paragraph of the Direction does not inform the words ‘has been sentenced to a term of imprisonment of 12 months or more’ or the word ‘imprisonment’ in s. 501(3A)(a) but rather informs the question about whether the person is in fact serving a sentence in prison at the time of cancellation.

28. Mr Onwong’a also suggested that he did not fail the character test because of s.501(7)(d) which provides ‘the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more’. That suggestion also fails because of what I have already said about his sentence of imprisonment of 15 months, which on its own is more than 12 months imprisonment.

29. Having found that Mr Onwong’a fails the character test, it is necessary to consider the more involved question concerning whether there is another reason to revoke the decision cancelling the visa. That is the only other basis that is available for revoking the decision to cancel the visa.

    IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?

30. The Tribunal must consider whether it is satisfied that ‘there is another reason why the original decision [the decision to cancel the visa] should be revoked’. That issue requires identification of a rational or reasoned basis or justification for undoing the visa cancellation.

31. The Minister has issued the Direction. The Tribunal is required by s.499(2A) of the Act to comply with the Direction when it performs its functions and exercises it powers. Consideration of whether or not a decision cancelling a visa should be revoked is one of the Tribunal’s functions and involves the exercise of the Tribunal’s powers.

32. The Direction contains principles which provide a framework to decide whether a decision to revoke a cancellation of a visa should be made, and ‘considerations’ that the decision-maker must address and consider where they are relevant. The principles inform the matters to be considered by the decision-maker. It is not necessary to set out the principles, but I will refer to them where necessary.

33. The Direction has two categories of matters the Tribunal is required to consider: ‘primary considerations’ and ‘other considerations.’ The ‘primary considerations’ are:

    ·the protection of the Australian community from criminal or other serious conduct;

    ·whether the conduct engaged in constituted family violence;

    ·the best interests of minor children in Australia; and

    ·the expectations of the Australian community.

34. The ‘other considerations’ include:

    ·international non-refoulement obligations;

    ·the extent of impediments if a non-citizen is removed from Australia;

    ·the impact on victims;

    ·links to the Australian community including the strength, nature and duration of ties to Australia; and impact on Australian business interests.

35. The class of ‘other considerations’ is not closed so that other things may be considered as ‘other considerations’ in particular cases.

36. The Direction says, ‘primary considerations should generally be given greater weight than the other considerations.’ The use of the word ‘generally’ contemplates cases where it may be appropriate not to do that.

37. The Direction requires the decision-maker to take into account the matters referred to in the Direction as ‘considerations’ where they are relevant to the decision and in doing so, lays down specific aspects of the matters that must be taken into account.

38. The obligation to take matters into account carries recognition of the fact that there must be ‘real consideration of the circumstances of the people affected … confronting what is being done to people.’[1] The need to have actual consideration of matters is important because of the subject matter with which the decision is dealing, which involves potentially a person’s exclusion from Australia. It need only be said that the far-reaching ramifications of such a decision that has such a significant consequence, particularly for people in the community and especially for an applicant seeking to have a visa cancellation revoked, are important and inform the need to consider matters earnestly, carefully, and deliberatively.

    [1] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3].

39. I will consider matters that are relevant to each of the relevant primary and other considerations in turn.

    PRIMARY CONSIDERATIONS

    PROTECTION OF THE AUSTRALIAN COMMUNITY

40. The Direction requires that I ‘keep in mind that the Australian Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens’. I am required to have regard to the fact that remaining in Australia is a privilege that confers the expectation that non-citizens will obey and respect Australian law and institutions and will not harm the community. There are two aspects to this consideration: the nature and seriousness of the conduct of an applicant, and the risk the community faces should that applicant re-offend.

41. Mr Onwong’a has committed nine criminal offences, four of which involve driving with a prescribed content of alcohol which was high on two occasions, mid-range on one occasion and low range on one occasion. It is necessary to set out some of the detail of the criminal offences in order to consider the seriousness of the offending.

42. On 1 July 2017, Mr Onwong’a was breath-tested after he ran into two cars near his neighbour’s house. Mr Onwong’a does not remember much else about what happened. He returned a high range reading.

43. On 20 July 2017 Mr Onwong’a was convicted of the offence of driving with a high range prescribed concentration of alcohol in his blood – first offence and failing to give particulars to the owner of damaged property. Mr Onwong’a was convicted of both offences, placed on a good behaviour bond for two years and disqualified from driving for a period of six months, which was the minimum period of disqualification that accompanied the offence. The offence of driving with a high range prescribed concentration of alcohol for the first time had a maximum sentence of 18 months’ imprisonment.

44. On 3 December 2017, Mr Onwong’a was subjected to a mobile breath analysis test. He returned a negative result, but it was discovered by police officers who had stopped him that he was driving while disqualified.

45. On 8 February 2018, Mr Onwong’a was dealt with for the offence of driving whilst disqualified. The good behaviour bond for the earlier offences was called up because it had been breached. Mr Onwong’a was sentenced to 150 hours community services for the earlier driving with a high range prescribed concentration of alcohol in his blood – first offence and fined $300 for the drive whilst disqualified offence. He was disqualified from driving for a further 12 months because of the most recent offence.

46. On 25 April 2018, Mr Onwong’a was found in his vehicle slumped over the steering wheel with the engine running. He was eventually subjected to a breath analysis test. He returned a reading indicating a mid-range prescribed content of alcohol. He was, of course, by reason of his earlier disqualification, driving whilst disqualified yet again.

47. On 18 July 2018, about six months after he was sentenced for his previous offences, Mr Onwong’a was dealt with for offences of having driven a motor vehicle with a mid-range prescribed content of alcohol in his blood and driving whilst disqualified. I have already referred to the sentence which was an aggregate term of 15 months imprisonment with an indicative term for each offence of nine months’ imprisonment. An order was made so that the sentence was to be served by way of an intensive corrections order. The intensive corrections order had some conditions attached to it. There was also a further period of disqualification from driving imposed of 9 months as well as some consequential orders. It was made clear to Mr Onwong’a by the sentencing Magistrate that if he breached the intensive corrections order, he would go immediately to prison to serve his sentence for at least six weeks, at which time he would go before the parole authority.

1. On 29 March 2019, Mr Onwong’a was once again pulled over by the police. He was subjected to a blood alcohol test and returned a result of 0.619 grams of alcohol per 210 litres of blood – a high range prescribed content of alcohol. He was, of course, disqualified from driving at that time.

2. On 25 July 2019 Mr Onwong’a was convicted for driving with a high range prescribed content of alcohol and driving whilst disqualified for both of those offences. He was sentenced to four months imprisonment and disqualified from driving for 12 months. It seems, although it is not at all clear, that that at least some of the sentence was to be served concurrently with the balance of the intensive corrections order. Mr Onwong’a was in prison until 24 November 2019.

3. On 12 June 2020, in the early hours of the morning, Mr Onwong’a was driving when he was stopped by a police officer for the purpose of a mobile breath analysis test. He told the police officer he did not have a driver’s licence or any identification. He was taken to a police station. He told the officer at the police station that he had understood that he had been disqualified from driving for a year and he thought that the period had elapsed. It is not clear why he thought that, given that he had been disqualified less than a year earlier. He says that the reason he did not have a licence was because he did not know he had to reapply for a licence after his disqualification period had lapsed. The problem with his explanation is, of course, the disqualification period had not lapsed at all. In any event, he was breath tested and he returned a reading 0.060 grams per 210 litres of blood – a low range prescribed content of alcohol for the purpose of the relevant offence.

4. On 26 October 2020 Mr Onwong’a was dealt with for the offences of driving with a low range prescribed content of alcohol and driving whilst disqualified. He says that his legal representative did not explain his reason for driving whilst disqualified, which was the reason I have set out earlier, even though he told his legal representative about it. Of course, it is difficult to see how that explanation would have been mitigatory given that he was still within the disqualification period when he was stopped. He was sentenced to five months imprisonment the offence of driving whilst disqualified and fined $1000 for the driving with a low range prescribed content of alcohol offence. He was disqualified from driving for a further period of 12 months.

5. It is next necessary to consider the serious of the offences. The offence of driving with a prescribed content of alcohol is a serious one because driving whilst intoxicated by alcohol carries with it potential serious consequences, which can involve death and injury to members of the community. It might be said that the two high range offences involved a greater risk than the others, but they are all serious offences. That the offences are serious is reflected by the fact that Parliament has set a maximum penalty for second offences of 2 years imprisonment for high range driving with a prescribed content of alcohol and 12 months for mid-range driving with a prescribed content of alcohol.

6. In Mr Onwong’a’s case, he was punished by way of a 150 hours community service order for his first high range offence after initially being given the benefit of a good behaviour bond. For his second offence, involving a mid-range prescribed content of alcohol, his punishment was an aggregated 15-month term of imprisonment, but which had an indicative sentence of nine-months imprisonment, was which was to be served by way of an intensive corrections order and a four-month term of imprisonment for his second high range offence. All of those sentences are significant sentences in the criminal justice system, but especially the latter two involving, as they do, the deprivation of liberty of the individual for significant periods of time, even though the 15 month sentence was, ultimately, permitted to be served in the community.

7. There is another aspect of these offences that makes them more serious, which is the fact that they were repeated, it would seem, almost annually over four years. The frequency with which the same kind of serious offence has been committed makes the offending all the more serious, as does the accumulated effect because it involves continuously exposing the community to the significant risk of death and personal injury that is occasioned by drink driving. It also reflects something of a complete disregard for the welfare of the community.

8. Mr Onwong’a has also committed four offences of driving whilst he was disqualified from driving over more or less the same period of time. The offences are also serious albeit, perhaps, not as serious as the drink driving offences. There are two matters that make them serious. The first is that they involve someone driving who, for one reason or another, has been proscribed from driving presumably because they present a danger in doing so. Second, the offence involves a defiance of the authority of the court that imposed the punishment. Again, Parliament has considered such offences as serious ones prescribing a maximum penalty of 6 months imprisonment for a first offence and 12 months imprisonment for a second and subsequent offence.

9. Mr Onwong’a was punished for his first offence of driving whilst disqualified by a fine. His second offence saw him receive a punishment aggregated with his mid-range drink driving offence of 15 months imprisonment with an indicative sentence of nine months which was to be served by way of an intensive corrections order. His third offence saw an aggregate term of imprisonment of four months and for his most recent offence he received a sentence of five months imprisonment.

10. As with his drink driving offences, these offences are more serious because they have been repeated over and over during a four-year period. They demonstrate, when taken together with his drink driving offences, a continued and repeated disregard for the authority of the law and of behaviour that jeopardizes public safety. The offences when considered together reflect serious criminal offending, involving wilful and continuous disobedience of the law. I am satisfied that the offending conduct is very serious.

11. Next, I am required to consider the risk to the community should Mr Onwong’a be permitted to remain in the community and if he were to engage in further offending. There are two aspects to this: the first is the nature of the harm to individuals or the Australian community should Mr Onwong’a engage in further offending, and the second is the likelihood of Mr Onwong’a engaging in further criminal offending, having regard to information and evidence concerning that and evidence of rehabilitation.

12. The nature of the harm to the Australian community should Mr Onwong’a commit further offences of the same kind is likely to involve putting at risk the safety of members of the public using roads with the possible consequences of death or serious injury. Those consequences of drink driving go very much without saying. Although it is true that to date Mr Onwong’a’s drink driving and driving whilst disqualified has had no practical consequence, other than some damage to property, the reality is that the likelihood of such harm is very real especially in light of the fact that drink driving is one of the significant contributors to traffic accidents in Australia.

13. Next, I must consider the Applicant’s likelihood of re-offending, which requires me to have to take into account information and evidence about the risk of re-offending and evidence of rehabilitation achieved by the time of this decision. There are several matters that are relevant.

14. First, the extensive history of repeated offences of the same kind over a relatively short period (five years) fairly suggests Mr Onwong’a is likely to re-offend. In general terms past conduct is a fair indicator of future conduct especially, perhaps, where it cannot be put down to some singular aberrant isolated instance. The psychologist report which I refer to below confirmed the general principle that past conduct is a good indicator of future conduct.

15. Second, that conclusion is confirmed by the fact that Mr Onwong’a has not been deterred by criminal punishments of an escalating and serious kind, which most recently have involved successive periods of imprisonment, and which historically saw him reoffend, even with the spectre of going straight to prison hanging over his head. In fact, when he was sentenced in July 2018, the sentencing Magistrate could not have been clearer as to the prospect of what would follow from continued offending of the same kind, namely imprisonment.

16. Third, when he was most recently sentenced in October 2020 the sentencing Magistrate referred to a sentencing report that indicated that Mr Onwong’a minimised his responsibility for his offending, did not take responsibility for his offending and did not have a clear understanding of the laws of New South Wales. For those reasons, the sentencing Magistrate could not be satisfied that Mr Onwong’a would not re-offend. That is information that would suggest that Mr Onwong’a is likely to reoffend.

17. Fourth, in late 2018 Mr Onwong’a was referred by his general practitioner to an organisation known as ‘The Psych Establishment’. He had around a dozen fortnightly sessions with a psychologist. The sessions stopped because the health insurance funding for them had stopped. The sessions were for ‘anxiety and depression’, which was later identified as one of the issues that needed to be dealt with to reduce the risk of recidivism. That Mr Onwong’a participated in those sessions reflects some commitment on his part to dealing with at least one of the things that needed to be addressed to reduce the risk of repeat offending. That is something that points against the likelihood of repeat offending, but as things turned out, Mr Onwong’a offended again following these sessions, so the usefulness of them as an indicator that Mr Onwong’a will not offend again in future is much diminished.

18. Fifth, there was in the evidence a report prepared by a registered psychologist in July 2019 that dealt with, amongst other things, Mr Onwong’a’s risk of reoffending. The psychologist relied on the level of service inventory; a tool often associated with predictions of risk for reoffending although, as the report identifies, it is mainly used with management rather than risk predication. The ‘level of service’ required for Mr Onwong’a was, using the tool, predicted as being ‘low’.

19. Nonetheless the level of service inventory scores for Mr Onwong’a, it was said, ‘still suggest several dynamic risk areas of concern’ and that Mr Onwong’a would benefit from continued engagement with those ‘who present pro-social; attitudes and behaviours’ and with ‘further connection to his own culture’ and members of the local Kenyan community. The report identified a number of ‘concerns’, namely the history of substance abuse, the ‘distress’ associated with his then ‘legal circumstances’, the expectations of his family and academic pressure as well as his mental health issues with depression and anxiety. Aspects of the report were consistent with what some of the things that Mr Onwong’a suggested were associated with some of his offending, such as the ‘distress’ that was caused to him by his mother’s illness in 2017. But it cannot be considered that this was the only cause of his offending, because it was repeated and continued long after that.

20. That report also suggested that while Mr Onwong’a continued to engage in psychological intervention, remains abstinent from alcohol, maintains stable employment, continues to engage with pro-social peers from the local Kenyan community, continues to attend university and engages with his general practitioner for the purpose of medication review, the risk of recidivism ‘is likely to remain low’. The report also recorded the need for those supporting Mr Onwong’a to be aware of the potential of his risk increasing as his environment changes and to ensure his environment remains stable.

21. The report is not conclusive as to the risk of repeat offending because of its identification of the ‘dynamic factors’ and concerns that might impact on repeat offending. Also, of course, Mr Onwong’a was unable to maintain at least one of the conditions necessary for the risk to remain low - abstinence from alcohol. It would seem he re-offended, following the production of the report, at least for that reason. The report firmly suggests that the risk is real because of the very many concerns it expresses, and the conditions that it imposes for the risk to be considered low.

22. Sixth, there are some things that suggest Mr Onwong’a has taken some other steps, albeit that some of them are very recent, to address or minimise his likelihood of reoffending. In this regard, Mr Onwong’a says he has put ‘a lot of effort in ensuring he doesn’t reoffend’. He refers, in particular, to the fact that he has taken steps to voluntarily participate in drug and alcohol counselling and education in traffic laws. In August and September 2020, he participated in a voluntary outpatient Drug and Alcohol Counselling service offered by the New England Local Health District. In February 2021, whilst in prison, he completed the Equips Foundation Program, a 20-session program designed to assist people deal with their choices and behaviour. Mr Onwong’a also undertook a seven-hour course Drug and Alcohol Abuse 101 on 8 November 2021 and was assessed by Odyssey House on 18 November 2021 and engaged in their Alcohol and Other Drugs Recovery Program 2, an online residential treatment program, from 19 November 2021.

23. I do not really understand why education in traffic laws is something that Mr Onwong’a considers necessary given that he knew after his very first offence, if he did not know before, he should not be drinking and driving and that, at least by his last offence, he knew that driving whilst disqualified involved a fairly simple arithmetic calculation that someone studying towards qualifications in business and commerce should have been able to do. Nonetheless, his willingness to engage in such things demonstrates some commitment by him to take action to ensure he does not offend against the traffic laws again.

24. I give some weight to these things, but it needs to be cautiously approached. The things he did in November 2021 might have been responsive to the approaching hearing before the Tribunal. There is nothing before the Tribunal to account for the delay - it is not at all clear that, if those things could have been done in November 2021, why they could not have been done earlier. Another reason for being guarded about giving too much weight to the effect of those courses lays in the fact that in December 2017 Mr Onwong’a completed the Traffic Offenders Rehabilitation Course, and in July 2019 the Sober Driving Programme, yet he appears to have learnt little from either course as he re-offended only a short time after.

25. None of that is to suggest that Mr Onwong’a has not benefited from the things he has done to change his ways. It is largely unknown and speculative whether that will assist him greatly, but it points in a particular direction. I cannot, however, given the significant unknowns and the fact that such programs undertaken in the past have been unsuccessful in preventing Mr Onwong’a from re-offending, give it a great deal of weight. I will give some weight to the fact that those courses may have benefited Mr Onwong’a and may operate to mitigate the risk of his re-offending to some extent. It is also not possible to give them a great deal of weight in circumstances where the results of them are, in a practical way, completely unknown. Nonetheless, the counselling and courses are factors that point against repeat offending, but not heavily so.

26. Seventh, Mr Onwong’a accepts he has a problem with alcohol and is committed to continuing the process of education and rehabilitation. He says he is taking Declinol to help him ‘to gain control over alcohol’ and has been and is under the care of a psychologist ‘but still awaiting directions’ from that psychologist. He says he has a support network involving his local community to assist him. He certainly has some friends, some of whom have provided references and evidence to the Tribunal, who are likely to help him. It needs to be said, however, that that network did not deter him from reoffending in the past.

27. He has been involved in programmes whilst in prison to deal with decision making and life choices which are designed to help him. Associated with these things, Mr Onwong’a says he accepts responsibility for his actions, understands the effect and dangers associated with them and ‘wants to assure you that [he] will not disregard the traffic law and will not drink and drive ever again’. He says he is remorseful for his conduct in the past. Those things suggest that there are some things that point against him reoffending.

28. Eighth, it should not be forgotten that Mr Onwong’a has been in prison or in detention for more than a year as a result of his most recent offences. That period of incarceration and detention is likely to have had some deterrent effect, albeit like with the previous matters it is difficult to, except instinctively, measure the effect of that deterrence. That, together with his obvious desire to remain in Australia, are factors that operate at least conceptually to moderate any risk of reoffending. Again, their actual impact in a practical way is unknown.

29. The question about Mr Onwong’a’s risk of re-offending is, as is often the case, a complex one. In my assessment, having regard to the matters I have set out above, the risk is a real risk because of the history of repeat offending over a relatively short period. The risk is moderated by some of the matters I have referred to. The likelihood of him reoffending is in the middle to high range of probabilities. One thing is certainly clear: given his history of offending and his history of offending in a context where he has taken steps to prevent the prospect of re-offending, the risk of him re-offending is very real.

30. I am satisfied that the nature and serious of Mr Onwong’a’s criminal conduct is very serious. I am satisfied that the consequences of any reoffending are likely to be serious. I am satisfied that the likelihood of him reoffending is real, albeit not high. The protection of the Australian community is a weighty consideration which stands firmly in the way of revocation of the decision cancelling the visa.

    FAMILY VIOLENCE

31. There is no claim that Mr Onwong’a has in any way been involved in any conduct involving family violence and as such this consideration is not relevant.

    BEST INTERESTS OF MINOR CHILDREN

32. Next, I am required to consider the best interests of minor children who may be affected by the decision to either revoke or not revoke the cancellation of the visa. The Direction provides that I consider the best interests of children under the age of 18 years when I make my decision. I must only consider the interests of any such children individually to the extent that their interests may differ.

33. Mr Onwong’a has several nieces and nephews in Australia, two of whom he is ‘close’ to who he gave some evidence to the Tribunal about. They are a niece, aged four years of age, and a nephew, aged nine years of age. His relationship with them is not parental. He has only had an ‘in person’ relationship with them since his arrival in Australia, and obviously that was very much interrupted and curtailed by his time in imprisonment and subsequent detention. When in the community, he came to Sydney from Newcastle about once a month and spent time with them. Since he commenced his imprisonment, he has spoken to them on the phone once every few weeks.

34. It is unclear what role Mr Onwong’a will play in their lives in future should he remain in Australia but whether it is positive or otherwise is a little speculative, reliant upon whether he reoffends again and whether he would be able to stay out of prison. He will probably be able to maintain contact with them from Kenya. Their views about him remaining in Australia are not known, but it is probable that they would prefer to have him in their lives.

1. I am satisfied that the best interests of each of the minor children weighs in favour of revocation given the likely impact upon the children due to the loss of their uncle from their lives in Australia. The limited nature and duration of the relationship and the non-parental role that Mr Onwong’a plays in their lives means that I consider that this consideration moderately weighs in favour of revoking the cancellation of the visa.

   EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

2. This aspect of the Direction means that I must give weight to the expectations of the Australian community, the expectations that people who are allowed to live and be in Australia will obey Australian laws and that where someone who has been permitted to stay in Australia:

   …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 to not allow such a non-citizen to enter or remain in Australia.

3. In some cases, this will mean that not revoking the cancellation is:

   …appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the non-citizen should not … continue to hold a visa.

4. I must decide what weight is to be given to the community expectation of not revoking a decision to cancel a visa ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.’[2] This involves an evaluation about how strong this factor is in the particular circumstances of the case.

   [2] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [77] (per Charlesworth J).

5. The nature of the criminal offending, as I have observed, is very serious because of its repetition over about four years. The conduct if repeated and the harm likely to be caused if it were to be repeated is also potentially serious. Mr Onwong’a has been in Australia for a relatively short time, about five and half years, but he has spent about 18 months of that time in prison or in detention. He came to Australia when he was in his mid-twenties. It cannot be said he came to Australia at a young age, or that he has been in Australia for a long time such that it would moderate the expectations of the community. I do not consider that his continued studies in Australia are a significant factor that would moderate the expectations of the Australia community because his offending is very serious.

6. I am satisfied that the expectations of the Australia community weigh firmly against revocation because the risk of his reoffending is unacceptable, especially when regard is had to its likely consequences and there are no significant countervailing considerations that weigh against those things.

   OTHER CONSIDERATIONS

   INTERNATIONAL NON-REFOULEMENT OBLIGATIONS

7. I am required to consider Australia’s international non-refoulement obligations, which involves a duty not to forcibly return, deport or expel a person to a place where the person will be at risk of harm. The obligation is found in various international instruments to which Australia is a party which are the Convention Relating to the Status of Refugees, the Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights.

8. I am required to give weight to this consideration by engaging with the circumstances confronting the Applicant and what is really being done to him. When weighing this consideration, I need to be satisfied that a non-refoulement obligation exists; and second, I need to determine what are the consequences of it in a practical legal way.

9. The question of whether an obligation exists or not is dependent upon whether any fear of harm is well founded; that is, whether it has sound basis in fact.

10. Mr Onwong’a says that he fears being displaced because of the election that will take place in 2022 because of what happened to him and his family in 2008, that he has fears associated with tribal clashes and violence which can lead to death and fears of death threats to him ‘for coming home without achieving anything’. He also fears of rejection by his own family and lack of accommodation and unemployment.

11. I do not consider that any of these things are well founded fears mainly because there is little evidence that in contemporary Kenya, they will be matters that in a practical sense will confront Mr Onwong’a. The evidence about them is a little self-serving and not corroborated. The fact that there was violence associated with election about 13 years ago is not, on its own, sufficient to suggest that that there will be violence next year. There was no elaboration on the nature of any tribal clashes, what would cause them, where they would be, and how they would play out in a way that exposed Mr Onwong’a to a risk of harm. Likewise, the threat to Mr Onwong’a’s life for not achieving ‘anything’ lacks any real detail about how or why it might emerge. It is sufficient to note that it’s premise of ‘not achieving anything’ is not supported by the studies that Mr Onwong’a has completed in Australia, albeit that he will not have completed his most recent course of study. It is difficult to accept, and I do not accept, that his family in Kenya, his parents and siblings, will not offer him accommodation and assistance upon his return, a matter to which I return later when considering Mr Onwong’a’s impediments to returning to Kenya.

12. On the limited information available to the Tribunal, I am not satisfied that Mr Onwong’a has a well-founded fear of harm such to engage any non-refoulement obligation. As such, this consideration does not have any weight either in favour of or against revocation of the cancellation of the visa.

    EXTENT OF IMPEDIMENTS IF REMOVED

13. I am required to consider the extent of any impediments that confront Mr Onwong’a in establishing and maintaining a basic living standard for himself in his home country. The basic living standard referred to in the Direction is by reference to that which is available to other citizens of that country. I am required to consider age, health, language and cultural barriers, and social, medical, and economic support that may be available.

14. Mr Onwong’a is a young man being 30 years of age. He speaks English and Swahili which are both the national languages of Kenya. He is relatively healthy. He suffers from asthma. He most has suffered from anxiety and depression at least since about September 2018. It is likely that that is something that will present a problem in establishing himself in Kenya again, but I do not think it is the kind of thing that he will not be able to deal with and overcome, especially given that his close family will be available to help him. He did say that his mother was ill and that will provide some difficulty for him on return, but I doubt that will be significant given that family illness and infirmity is a fact of life that most people deal with at one time or another in their lives.

15. Mr Onwong’a has only been away from Kenya for about five and a half years. He spent all of his life in Kenya before coming to Australia so he will be well aware of how life is lived in Kenya. As I have said, he has his immediate family in Kenya who will undoubtedly assist him to establish himself. Although he originally said he feared rejection from his family, he candidly said in his evidence during the hearing that he had been in contact with his family and told them what was happening to him. He also said that his family would offer him accommodation upon his return to Kenya. He will have available to him all of the same social supports so far as welfare is concerned as other citizens of Kenya.

16. It may be accepted that Mr Onwong’a will suffer some embarrassment, at least initially upon his return, at having failed to complete his degree in Australia. That will pass as his life moves on and is unlikely to present any obstacle to him re-establishing life in Kenya.

17. For these reasons this consideration weighs only very slightly in favour of revocation.

    LINKS TO THE AUSTRALIAN COMMUNITY

18. The Direction requires that attention be paid to Mr Onwong’a links to the Australian community. There are two categories that need to be addressed, first the strength, nature and duration of ties in Australia, and second, the impact on Australian business interests. There was no suggestion that business interests are relevant.

19. So far as Mr Onwong’a’s ties to the community are concerned, I must consider how long he has lived in Australia but giving ‘less weight’ where the offending started ‘soon after’ arrival in Australia and ‘more weight’ where ‘time… has [been] spent contributing positively to the Australian community’. I must also consider the strength, duration and nature of familial and social links with Australian citizens, permanent residents and others entitled to remain in Australia indefinitely.

20. Mr Onwong’a has been in Australia for about five and a half years. He has spent nearly 18 months of that time in prison or in detention. His offending started 13 months after his arrival. It continued at intervals since then until he was imprisoned in late 2020. Those things weigh against giving this consideration much weight at all.

21. He has been employed for most of his time in Australia, for much of the time as an assistant nurse in an aged care facility. His employment also included a period as a youth support worker. His contribution to the elderly and their families and to youth is significant. His references concerning his work speak of the fact that he was ‘valued member of our team’. That contribution is an important one and weighs in favour of this consideration supporting revocation of the cancellation. 

22. He completed courses of study in Australia and was, until he went to prison, completing his Bachelor of Business degree. He has contributed to his church and has participated in his local community including the local African community in Newcastle. He played soccer. He has helped his cousin, who has come to Australia from Kenya, settle in Australia and through that made a valuable contribution to the community. All of these things suggest Mr Onwong’a has made a contribution outside of paid employment to the community.

23. Mr Onwong’a has five aunts and uncles, seven cousins and four nieces and nephews in Australia. They are permanent residents of Australia. The references he has provided from the Hunter African Communities Council as well as from his friends show that he has some close ties in the community to Australian citizens and permanent residents.

24. Mr Onwong’a in his short time in Australia has through his employment contributed to the community especially through his care as an assistant nurse for the elderly. That must be balanced against the fact that his offending conduct commenced only shortly after his arrival in Australia and continued over several years. It is clear he has some familial ties and other social and friendship ties with Australian citizens and residents but again the balancing exercise against his short time here and his offending means that they should not be given substantial weight.

25. I am satisfied that this consideration weighs moderately in favour of revocation of the decision cancelling the visa.

    THE NEED TO COMPLETE HIS STUDIES

26. This ‘other considerations’ do not preclude consideration of other matters that might be relevant to any decision to revoke the cancellation. In this regard Mr Onwong’a referred in his material to the sacrifice his parents had made for him to obtain an education and the hardship they had suffered in doing so. He said that they were ‘highly dependent on [his] future outcome of education and employment’. He said that his siblings had suffered from the lack of a better education so that he could get a better education. He also said that it would cause him some ‘emotional distress not to be able to complete his studies’.

27. These are all matters that weigh in favour of revoking the decision to cancel the visa, although in the view I take, not strongly so for a number of reasons. First, Mr Onwong’a has the benefit of the studies he did complete: his certificate in support and his diploma in business and commerce and that part of the degree he has completed to date. Second, albeit a little speculative, there is probably be some likelihood that he will be able to complete his studies elsewhere, perhaps in Kenya. In that respect all may not be lost. Third, although the emotional distress is understandable, they are things that in time will pass. Fourth, all of those things are not, in any event, sufficient to outweigh the need to protect the Australian community and the expectations of the Australian community.

28. This consideration weighs slightly in favour of revocation of the decision to cancel the visa.

    THE VISA CANCELLATION SHOULD DECISION SHOULD BE AFFIRMED

29. I have found that the protection of the Australian community weighs firmly in favour of non-revocation of the visa cancellation. I consider that the consequences of Mr Onwong’a re-offending, should he do so, to be serious and would threaten the welfare of the community. The prospect that Mr Onwong’a will reoffend is real, and although moderated by some of the things I have referred to earlier, is significant enough to mean that the protection of the Australian community is a weighty consideration against revocation of the decision to cancel the visa. I have also found that the that the expectations of the Australian community weigh against revocation. So far as the other primary considerations are concerned, the best interests of minor children weighs slightly against revocation. The primary considerations weigh heavily against revocation.

30. So far as the other considerations are concerned, I have found that Mr Onwong’a’s ties to the community, in particular his familial relationship with his extended family comprising his aunts, uncles, cousins, nieces and nephews and his relationships with Australian citizens and residents to weigh in favour of revocation, but only moderately so, given the short time that he has been in Australia and the fact that much of that time has been marred by fairly regular offending. The impediments to his return to Kenya weigh only very slightly in favour of revocation, especially given the presence of his immediate family there and the fact that before coming to Australia he lived there for all of his life. I have found that matters connected to his completing his studies in Australia weigh slightly in favour of revocation.

31. I have also found that the consideration of Australia’s non-refoulement obligations does not weigh one way or another, so far as revocation is concerned, and that the other nominated considerations in the Direction are not relevant.

32. The primary considerations involving the protection of the community and the expectations of the community outweigh the other primary considerations involving the best interest of minor children, and even when the primary considerations are weighted with all of the other considerations, they are still matters that heavily weigh against revocation of the decision cancelling the visa. There is not another reason to revoke the decision cancelling the visa.

    DECISION

33. I affirm the delegate’s decision refusing to revoke the cancellation of Mr Onwong’a’s Class WE Subclass 050 Bridging E visa.

I certify that the preceding 114 (one hundred and fourteen) paragraphs are a true copy of the reasons for the decision herein of Mr Robert Reitano, Member

...............................[sgd].........................................

Associate

Dated: 14 December 2021

Date(s) of hearing:	1, 2 and 6 December 2021
Applicant:	Self-represented
Solicitor for the Respondent:	Ms S. Prasad, Minter Ellison