Paikea and Minister for Immigration and Border Protection (Migration)

Paikea and Minister for Immigration and Border Protection (Migration) [2017] AATA 1740 (17 October 2017)
Division:GENERAL DIVISION
File Number:2017/4539
Re:Tyson Paikea
APPLICANT

Minister for Immigration and Border ProtectionAnd
RESPONDENT

DECISION
Tribunal:Dr L Bygrave, Member
Date:17 October 2017
Place:Sydney

The decision under review is affirmed.
...........................[sgd].............................................
Dr L Bygrave, Member

CATCHWORDS
MIGRATION – mandatory visa cancellation – character test – substantial criminal record – imprisonment for 12 months or more – whether discretion should be exercised – protection of the Australian community – the best interests of minor children in Australia affected by the decision – expectations of the Australian community – other considerations – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 501, 501CA
CASES
Anaki and Minister for Immigration and Border Protection [2016] AATA 693
Do and Minister for Immigration and Border Protection [2016] AATA 390
SECONDARY MATERIALS
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Dr L Bygrave, Member
17 October 2017
INTRODUCTION

The applicant, Mr Tyson Paikea, is a citizen of New Zealand who first arrived in Australia at the age of 15 years on 9 December 2003. On 27 August 2010, he was granted a Class TY Subclass 444 Special Category (Temporary) visa.
The applicant’s visa was mandatorily cancelled under section 501(3A) of the Migration Act 1958 (Cth) (the Act) on 4 April 2017 on the basis that he did not pass the character test because he had been sentenced to a term of imprisonment of 12 months or more and therefore had a ‘substantial criminal record’ as defined in section 501(7) of the Act.
On 18 April 2017, the applicant made representations seeking revocation of the mandatory visa cancellation decision under subsection 501CA(4)(a) of the Act.
The Minister’s delegate decided on 18 July 2017 not to revoke the cancellation decision and, on 27 July 2017, the applicant lodged an application with the Administrative Appeals Tribunal (the Tribunal) seeking a review of this decision.
The matter was heard in Sydney on 5 October 2017. The applicant attended the hearing in person and gave evidence. He did not have legal representation.
BACKGROUND
The applicant was born in New Zealand in 1988. His father passed away from cancer when the applicant was about six years old. In a personal circumstances form dated 22 June 2017, the applicant stated that he, his older brother and younger sister were subsequently raised by their mother, ‘who at times struggled emotionally, financially’.[1] The applicant noted he had ‘a difficult upbringing without appropriate role models’.[2]
[1] Exhibit G, G3, p 60.
[2] Exhibit G, G3, p 54.
The applicant first came to Australia in 2003 when he was 15 years old and resided with relatives. He has travelled to New Zealand on four occasions since 2003; the last time was for six months in 2010. The applicant has attended school, played club and representative rugby, and been employed in demolition while living in Australia.
The applicant met his current partner in 2010 and they have two children together; a son aged four years and a daughter who is two years old.
Criminal record
The applicant’s National Police Certificate dated 9 May 2017 sets out the following criminal offences:
·30 April 2012 – conviction in Campbelltown Local Court: ‘destroy or damage property <= $2000-t2’, fined $500; ‘break and enter dwelling-house with intent (steal)’, placed on 12 months good behaviour bond.
·19 September 2012 – conviction in Campbelltown Local Court: ‘custody of knife in public place – first offence’, fined $500; ‘possess prohibited drug’, fined $250; ‘possession of equipment for administering prohibited drugs’, fined $250.
·7 November 2013 – conviction in Wollongong Local Court: two counts of ‘dishonestly obtain property by deception-t1’, fined $500 on each count.
·4 February 2014 – conviction in Gosford Local Court: ‘dishonestly obtain property by deception-t1’, fined $250; ‘assault occasioning actual bodily harm (dv)-t2’ and ‘common assault (dv)-t2’, placed on 12 months good behaviour bond; ‘destroy or damage property (dv)’, fined $400.
·25 March 2015 – conviction in Campbelltown Local Court: ‘break and enter house etc steal value <= $15,000-t1’, sentenced to nine months imprisonment.
·13 December 2016 – conviction in Campbelltown Local Court: ‘assault with intent to rob armed with offensive weapon-si’, sentenced to four years and six months imprisonment.[3]
[3] Exhibit G, G3, pp 20-21.
The applicant also has a record of traffic and road offences including driving while his license was cancelled and suspended.
A Pre-Release Report dated 5 July 2017 recorded the applicant’s institutional misconduct charges and punishments as:
·16 November 2015: ‘fight or other physical combat’, 2 days cells.
·15 December 2015: ‘tattoo’, 14 days off buy ups.
·29 September 2016: ‘assaults’, 3 days cells.
·6 February 2017: ‘fail prescribed urine test’, 42 days off contact visits.
·1 May 2017: ‘fail prescribed urine test’, 84 days off contact visits.[4]
RELEVANT LEGISLATION AND ISSUES
[4] Exhibit R1, p 449.
The power to revoke a visa cancellation
Pursuant to section 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if the Minister is satisfied the person does not pass the character test. A person is taken to not pass the character test if he or she has a ‘substantial criminal record’. A person who has been sentenced to a term of imprisonment of 12 months or more has a ‘substantial criminal record’ as defined in sections 501(6)(a) and (7) of the Act.
Under section 501CA(4) of the Act, the Minister (and therefore the Tribunal on review) has the discretion to revoke the original cancellation decision if the Minister is satisfied that the person passes the character test or ‘there is another reason why the original decision should be revoked’.
The applicant has a ‘substantial criminal record’ and so does not pass the character test. This is not disputed by the applicant.
The Tribunal must therefore consider whether there is another reason to revoke the original cancellation decision.
When considering whether to revoke the cancellation decision, the Tribunal is required under section 499(2A) of the Act to have regard to the guidance contained in Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction).
The Direction sets out the policy of the government and includes a number of introductory statements including the expectation that non-citizens will obey Australian laws and behave in accordance with Australian community values and standards if they wish to retain the privilege of coming to or remaining in Australia.
The Principles set out in clause 6.3 of the Direction provide a framework to approach deciding whether to cancel a visa. The Principles state:
(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 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 consideration 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.
Informed by the Principles, the Tribunal must take into account the factors set out in Part C of the Direction in determining whether to revoke a mandatory cancellation of a non-citizen’s visa under section 501CA of the Act. The primary considerations are:
(a)protection of the Australian community from criminal and other serious conduct;
(b)best interests of minor children in Australia affected by the decision; and
(c)expectations of the Australian community.
Part C also sets out other considerations which must be taken into account. Other considerations relevant to this matter are:
(a)strength, nature and duration of the applicant’s ties to Australia; and
(b)extent of impediments if the applicant is removed from Australia.
Clause 8(2) of the Direction stipulates that information and evidence from independent and authoritative sources should be given appropriate weight in applying the primary and other considerations.
Protection of the Australian community
Clause 13.1(2) of the Direction states the Government’s commitment to protecting the Australian community from harm by non-citizens and requires that the Tribunal consider:
(a)the nature and seriousness of the applicant’s conduct to date; and
(b)the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.
I will first consider the nature and seriousness of the applicant’s conduct to date.
The applicant’s criminal record, which is set out in part in paragraph 9, shows he committed a number of offences between 2012 and 2016. Additionally, the New South Wales Police Force Criminal History – Bail Report shows the applicant first offended on 22-23 July 2008. The applicant was convicted for the offence of ‘break and enter house etc steal value <= $15,000-ti’ and sentenced to nine months imprisonment on 25 March 2015.[5]
[5] Exhibit R1, pp 10-11 and 22.
The applicant’s offences include violent criminal behaviour.
The applicant was involved in a domestic assault involving his partner’s step-father in May 2012, which resulted in him entering into a 12 months good behaviour bond in accordance with section 9(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW).[6]
[6] Exhibit R1, pp 350-351, 352-355.
The applicant participated in a robbery and assault on 28 June 2014 that was described in Judge English’s sentencing remarks on 13 December 2016 as follows:
…the victim was woken by a knock at his door. He got up and… he saw [the applicant] who he recognised and a second male standing at the door…
The victim…was wary at first but eventually agreed to let them in… the victim was someone who had previously supplied drugs…
…The offenders were allowed into the house [and] all three men sat on the lounge…[and] engaged in small talk… [Later, the applicant] punched the victim in the face…
The evidence…was that the offenders attended the victim’s home with the expectation of buying drugs… [The jury found] that when that goal was not achieved the offenders as part of a joint criminal enterprise took money from the victim. [The applicant]…took $450 from the wallet of the victim. [The applicant] had placed a pair of socks on his hands…and punched the victim again to the face…
[The offenders] walked off into the kitchen…[and] a conversation ensued about water and a toaster which frightened the victim even more. At that point the victim managed to escape.[7]
[7] Exhibit G, G3, pp 23-25.
Judge English found the applicant ‘was clearly the aggressor’ although opined the offending was opportunistic and displayed limited forethought or planning.[8]
[8] Exhibit G, G3, pp 26, 32.
At the Tribunal hearing, the applicant disputed some of the facts of this offence but conceded that he had gone to the victim’s home with the intent to purchase drugs and had subsequently assaulted and robbed the victim.
The applicant has been involved in and punished for two assaults while in jail. He told the Tribunal that he was present but not involved in the assault on 9 November 2015 and rather he ‘helped the victim’. He acknowledged he assaulted another inmate on 17 September 2016 when he approached him from behind and struck him with his right fist.[9]
[9] Exhibit R1, p 206.
The applicant did not dispute his criminal record at the Tribunal hearing. A written statement filed by the applicant on 29 September 2017 acknowledged his crimes were serious and violent, noted his shame and remorsefulness for his behaviour, and stated he has learnt from his mistakes.
Considering the relevant factors set out in clause 13.1.1 of the Direction, I find that:
·The applicant’s offences include committing violent offences. The applicant was sentenced to four years and six months imprisonment for his most recent offence of assault and robbery. He has been involved in two assaults while in jail, most recently in September 2016, for which he has pled guilty and been punished.
·The applicant’s record of criminal offending shows he has been involved in 15 offences since 2008 and reflects a pattern of repeat offending that has become increasingly serious and violent.
·There has been a cumulative effect due to the applicant’s repeated offending and he has continued to offend despite warnings from police and the judicial system.
I am satisfied that the frequency and cumulative effect of the applicant’s criminal offending is a matter of serious concern. I find that the nature and seriousness of his offending weighs heavily against him.
I must also consider the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.
The sentencing remarks of Judge English on 13 December 2016 articulated a correlation between the applicant’s drug use and his offending and aggressive behaviour. The remarks noted:
His drug addiction involves the use of cannabis, ecstasy, cocaine and then ice. He acknowledged that as a result of his abuse of ice, that he was mixing with negative peers, not eating properly, not working and neglecting his parental responsibilities.[10]
[10] Exhibit G, G3, pp 28-29.
On 5 July 2017, a Senior Community Corrections Officer at the Outer Metropolitan Multi-Purpose Centre at Windsor completed a Pre-Release Report regarding the applicant’s potential release to. This report recommended the applicant’s:
…illicit substance use and issues in relation to aggression appear to contribute toward his offending behaviour. In custody, he has continued to engage in aggressive behaviour having been charged twice in relation to assaults and he has provided two urine samples indicating illicit substance use. Given his poor behaviour, he has regressed from a C2 security classification to a C1. Furthermore, the [applicant] has not completed any offence targeted programs to address his offending behaviour…The [applicant] has been assessed as suitable for IDATP [Intensive Drug and Alcohol Treatment Program]…
…Community Corrections does not recommend release to Parole at this time. It is considered beneficial that the offender remain in custody to complete the IDATP and demonstrate a significant period of compliance and stability prior to any release to Parole.[11]
[11] Exhibit R1, p 454.
At the Tribunal hearing, the applicant provided limited insight into his criminal offending and aggressive behaviour. He acknowledged his heavy drug use has contributed to his poor behaviour and said he stopped using drugs when he was first imprisoned. I accept that his Drug Analysis Reports dated 26 November 2014 and 16 July 2015 showed ‘nil detected drugs’.[12] The applicant told the Tribunal he resumed using drugs while incarcerated as a coping mechanism; he returned positive results for drug analysis on 6 February 2017 and 29 April 2017.[13]
[12] Exhibit R1, pp 236-237.
[13] Exhibit R1, pp 103 and 194.
In July 2017, the applicant began the Intensive Drug and Alcohol Treatment Program (IDATP). He told the Tribunal the IDATP is helping him by providing strategies and he is learning to not respond aggressively but rather remove himself from potentially difficult situations. He said he was continuing to use drugs in prison but reducing his use.
Having regard to the applicant’s Pre-Release Report completed only three months ago, which noted his regression of security classification and lack of compliance and stability, I am not persuaded that the applicant will not reoffend should he be released into the Australian community. This is further supported by the applicant’s limited insight into his offending behaviour and his continuing drug use while incarcerated. While I note the applicant may respond positively to the IDATP as he continues and completes the program, there is no evidence before the Tribunal at this time to support this outcome.
In considering the nature of the harm and potential risk to the Australian community if the applicant were to reoffend in the future, I am mindful of the nature and seriousness of his past criminal offences and particularly his offences of common and domestic assault.
On balance, I find that the protection of the Australian community weighs heavily against revoking the cancellation decision.
The best interests of minor children in Australia affected by the decision
Clause 13.2(4) of the Direction sets out the factors that the Tribunal must consider in relation to whether revoking the cancellation decision is, or is not, in the best interests of a child affected by the decision. Relevant to this matter are the nature and duration of the relationship, the extent to which the applicant is likely to play a positive parental role, the likely effect any separation would have on the child, and whether there are other persons who already fulfil a parental role.
The applicant has two minor children, a son who is four years old and a daughter aged two years, who are Australian citizens. They reside full-time in Australia with their mother, also an Australian citizen and the applicant’s partner since 2010. As these children are under the age of 18 years, I must consider their best interests.
The applicant’s written statement filed with the Tribunal on 29 September 2017 set out his future hopes for his children and noted his:
…children are very young, [his son] is about to start primary school and [his daughter] is about to start pre-school. I hope I get the chance to watch them grow up. My children are still very young and I know I have not been a good role model but I hope to rectify that and I am allowed the opportunity to be a good father.[14]
[14] Exhibit A1.

Written statements provided by the applicant on 22 June 2017 also mentioned he is motivated to rehabilitate in order to have a positive future with his family, and to financially and physically support his partner to raise their children.[15]
[15] Exhibit G, G3, pp 56-64.
The applicant’s partner provided written statements dated 28 April 2017 and 1 October 2017, and gave evidence at the Tribunal hearing. She described the applicant’s close relationship with his children, including his daughter who has been born since his incarceration. She said the applicant speaks to her and their children on the phone most days, and they visit him in jail when possible. Recently, this has been either monthly or bi-monthly because she relies on public transport to travel to the prison, some distance from her home, and their son is attending pre-school. Visits this year have also been affected by the applicant’s punishment of ‘off contact visits’ due to failing prescribed urine tests.
At the Tribunal hearing, the applicant’s partner said she was unaware of his drug use and violent offending until she attended his court hearings. She acknowledged she had not co-habited full-time with the applicant since early 2013, although they remained a couple albeit with some periods of separation. This is perhaps unsurprising given both the applicant and his partner’s young age; she is currently 22 years old. If the applicant was allowed to remain in Australia, his partner confirmed he would reside with her and their children.
I also considered character references provided by relatives and friends, which speak positively about the applicant and his role as a father.[16] However, few of these references refer to the applicant’s criminal behaviour and drug use, and I therefore place limited weight on these references.
[16] Exhibit G, G3, pp 70-78.
Having regard to the Direction, I note the applicant plays a positive parental role in the lives of his children. Although he has been incarcerated for the duration of his daughter’s life, she knows him as her father and speaks with him regularly on the phone. The applicant’s son also has maintained a relationship with his father despite his absence and separation. Both children attended the Tribunal hearing and interacted comfortably with their father. Given the length of his incarceration and his children’s young age, the maintenance of these relationships is to the credit of the applicant and particularly his partner.
I accept that separation of the applicant from his children due to cancellation of his visa would adversely affect his children. Based on the evidence before the Tribunal, I find that the best interests of minor children weigh for revoking the cancellation decision.
The expectations of the Australian community
The Direction states that the Australian community expects non-citizens to obey the law. It also notes that non-revocation may be appropriate because the nature of the character concerns or offences are such that the community would expect that the person should not hold a visa (clause 13.3(1)).
The Direction does not refer to studies or other evidence which would enable me to formulate a precise view of public attitudes and values. I note a previous decision by the Tribunal, which states:
A decision-maker is, to some extent, required to guess at the community’s expectations… I must form my view having regard to contents of the Direction (which is, after all, a statement prepared by the community’s elected representatives), the sentencing remarks of the court and common sense. As I begin my deliberations, I assume the Australian community would be fair-minded and mature… The community would certainly not be vengeful. The applicant has already been punished for his offence, and the community would not want to see visa cancellation misused to inflict further punishment. I would also expect the community to be conscious of the length of time the applicant has lived in Australia and other circumstances which might assist the community to form a proper judgment about the individual and what should be done [emphasis added].[17]
[17] Do and Minister for Immigration and Border Protection [2016] AATA 390, [23].
Having regard to the Principles in clause 6.3 of the Direction (and set out in paragraph 18 above), I am mindful the Australian community anticipates a nuanced and balanced approach to considering the extent to which the applicant is a member of the Australian community even though he is not a citizen. The deliberation of Australian community expectations involves ‘bringing appropriate perspective and proportionality to bear in the assessment of risk’.[18] I therefore consider any positive contributions the applicant has made to society, such as employment, community activities and/or family relationships; and weigh this against his adverse and antisocial behaviour.
[18] Anaki and Minister for Immigration and Border Protection [2016] AATA 693, [89].
At the Tribunal hearing, the applicant said he has lived in Australia for 13 years; he attended school in Sydney and was employed in demolition. He has organised employment upon his release from prison and this claim is supported in character references from his relatives. There are also statements from the applicant and some of his relatives that he played representative rugby when he was younger.
The applicant refers to his partner and children as a positive and motivating influence. At the Tribunal hearing, his partner spoke about how she and the applicant have become closer since his incarceration as they have communicated about their vulnerabilities. The applicant’s partner wrote in her statement on 1 October 2017 that she is ‘prepared to do anything [she] can to help him’.[19]
[19] Exhibit A2.
The applicant’s criminal record has been extensively described in my consideration of protection of the Australian community. I believe the Australian community would have limited patience with the applicant’s behaviour given the seriousness of his crimes and his continuing use of drugs in prison.
The Australian community may have some understanding of the applicant’s difficult childhood and view this as a mitigating factor in his offending behaviour. However, the only information before the Tribunal regarding the applicant’s upbringing is a few brief sentences in his written statements. I also find that these circumstances do not excuse his criminal offending.
On balance, I am satisfied the third primary consideration counts against revoking the mandatory cancellation under s 501CA of the Act.
Other considerations
While the primary considerations carry particular weight, the Direction acknowledges at clause 14 that other considerations must be taken into account where relevant.
There are no international non-refoulement obligations in this matter. The Tribunal was not provided with any evidence about the impact of the applicant’s removal on any Australian business interests. There is no evidence of any impact on victims from the applicant’s criminal behaviour.
I now consider the strength, nature and duration of the applicant’s ties to Australia and the extent of impediments if he is removed to New Zealand.
The applicant provided a written statement on 29 September 2017, which set out he has lived in Australia for 13 years.[20] He has extended family in Australia and remains close to two aunts and uncles and his cousins who reside in Australia. His family members have offered support for the applicant, his partner and their children if he is released into the Australian community.
[20] Exhibit A1.
At the Tribunal hearing, the applicant said his mother and sister reside in New Zealand but he has no contact with them. The applicant’s brother also lives in New Zealand; he noted that he currently has lost contact with his brother but would try to find him if he returns to New Zealand.
The most significant tie to Australia is the applicant’s relationship with his partner and children. His partner’s written statement on 1 October 2017 stated:
…if the decision is made that he goes back to [N]ew Zealand I feel that the relationship between me and his children will only be damaged with the distance as my father is terminally ill with cancer and I need to stay in the country to take care of him, my dad cannot leave the country with his illness and only wishes to see his daughter get married before he passes and his grandchildren to have their family back together for good.[21]
[21] Exhibit A2.
The applicant’s partner also provided evidence about her own health condition; she has cystic fibrosis that results in periodic hospitalisation due to infections and pancreatitis.
I find that consideration of the applicant’s ties to Australia weigh in his favour.
The impediments to removing the applicant from Australia rely on his separation from his partner, children, extended family and friends. He has no medical conditions that could not be treated within the New Zealand health system. There is no information before the Tribunal that he would not be able to live and work in New Zealand.
While I am satisfied the applicant’s removal from Australia would be extremely challenging for his partner and their children, I note they would be able to continue speaking by telephone as they have done for the past almost three years that he has been in jail. The applicant’s partner also told the Tribunal that she may consider moving to New Zealand with their children in the long-term. I accept this would be very difficult in view of her father’s terminal illness, her own health concerns and leaving her extended family in Australia.
Apart from separation from his partner and children, I find that there are no other substantial impediments that would prevent the applicant re-commencing a life in New Zealand.
CONCLUSION
I have already indicated the first and third primary considerations weigh strongly against the applicant. The second primary consideration weighs for the applicant.
In regard to the other considerations, the applicant’s ties to Australia weigh strongly in his favour and the impediments weigh against him. However, the weight I must give these other considerations is low and they do not outweigh the primary considerations.
In these circumstances, it is not appropriate for me to revoke the decision to cancel the applicant’s visa.
DECISION
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 Dr L Bygrave, Member.

..........................[sgd]..............................................
Associate
Dated: 17 October 2017

Date of hearing: 5 October 2017

Applicant: In person

Solicitors for the Respondent: Mr A Keevers, Sparke Helmore

[2017] AATA 1740

17 October 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Date of hearing:	5 October 2017
Applicant:	In person
Solicitors for the Respondent:	Mr A Keevers, Sparke Helmore