Peterson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 1256
•4 May 2020
Peterson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1256 (4 May 2020)
Division:GENERAL DIVISION
File Number(s): 2020/0713
Re:Daniel Peterson
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:4 May 2020
Place:Perth
The decision of a delegate of the Respondent, made 7 February 2020 (R1, G4), not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (temporary) visa under s 501CA(4) of the Migration Act 1958 (Cth) is affirmed.
....................................[sgd].................................
Deputy President Boyle
CATCHWORDS
MIGRATION – Migration Act 1958 (Cth) – mandatory visa cancellation – s 501CA(4) – another reason why the cancellation decision should be revoked – Direction 79 – protection of the Australian community – nature and seriousness of the conduct – the risk to the Australian community – best interests of the child – strength, nature and duration of ties – extent of impediments if removed – COVID-19 – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) – ss 499(1), 499(2A), 500(1)(ba), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii)
Migration Regulations1994 (Cth) – reg 5.15A
CASES
Berryman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 421
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CZCV and Minister for Home Affairs [2019] AATA 91
DKXY v Minister for Home Affair [2019] FCA 495FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Pinder and Minister for Home Affairs [2019] AATA 1398
Re Gage and Minister for Home Affairs [2020] AATA 326
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 363 ALR 325
Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666
Re SLNY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 344
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Varley and Minister for Home Affairs [2019] AATA 376
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs, Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s501CA (Department of Home Affairs, 28 February 2019) – paras 6.1, 6.1(3), 6.2, 6.3, 7(1)(b), 8, 8(3), 8(4), 8(5), 13(2), 13(2)(a), 13(2)(b), 13(2)(c), 13.1, 13.1(2)(a), 13.1(2)(b), 13.1.1, 13.1.1(1), 13.1.1(1)(a), 13.1.1(1)(b), 13.1.1(1)(e), 13.1.2, 13.1.2(1)(a), 13.1.2(1)(b), 13.2, 13.3, 14, 14(1)(a), 14(1)(b), 14(1)(c), 14(1)(d), 14(1)(e), 14.2, 14.3(1), 14.5(1), Part C
REASONS FOR DECISION
Deputy President Boyle
4 May 2020
The Applicant seeks review of a decision of a delegate of the Respondent, made
7 February 2020 (R1, G4), not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (temporary) visa under s 501CA(4) of the Migration Act 1958 (Cth) (the Act).
The Applicant’s visa was cancelled pursuant to s 501(3A) of the Act because the Applicant does not pass the character test by reason of his substantial criminal record and because he was serving a full-time term of imprisonment for an offence against a law of a State.
The application for review,[1] made 11 February 2020, was made in accordance with
s 500(1)(ba) of the Act, which allows applications to be made to the Administrative Appeals Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) of the Act not to revoke a decision to cancel a visa. The Tribunal is satisfied that it has the jurisdiction to review the decision.
[1] R1, G1.
THE ISSUE
The issue for determination is whether the Tribunal should exercise the power in s 501CA(4) of the Act to revoke the mandatory cancellation of the Applicant’s visa. That will require determination of:
(a)whether the applicant passes the character test (as defined by s 501 of the Act); and
(b)if not, whether there is a ‘another reason’ why the mandatory cancellation decision should be revoked.
BACKGROUND
The Applicant is a 39 year old citizen of New Zealand who has been ordinarily resident in Australia since arriving in January 1992 when he was 11 years old.[2]
[2] R1, G37.
The Applicant last arrived in Australia on 9 June 2015 and was granted the Class TY Subclass 444 Special Category (temporary) visa at Eagle Farm Airport (Brisbane) in accordance with ss 32 and 65 of the Act and reg 5.15A of the Migration Regulations 1994 (Cth).
The Applicant’s record is as follows:
Court Court Date Offence Offence Date Court Result Perth Magistrates Court
6 Mar 2018
Exceed 0.08g alcohol per 100ml of blood
6 Feb 2016
$900 fine; MDL disq. 10 mths (CC)
Perth District Court
2 Mar 2018
Grievous bodily harm
6 Feb 2016
3 yrs 6 mths’ imp. (CC)
from 29 Jan 2018
Mandurah Magistrates Court
5 May 2009
Being armed in a way that may cause fear
13 Dec 2008
Fine $750
Mandurah Magistrates Court
6 Feb 2009
Assault Occasioning Bodily Harm
13 Dec 2008
18 mths’ imp., susp. for 2 years
Mandurah Magistrates Court
27 Mar 2007
No Motor Driver’s Licence
Excess 0.08%
23 Mar 2007
Fine $200
Fine $800; MDL disq. 9 mths
Mandurah Magistrates Court
20 Sep 2005
Reckless driving
17 Sep 2005
Fine $300; MDL disq. 6 mths
Mandurah Court of Petty Sessions
9 Mar 2005
Causing excessive noise (hoon legislation)
Resist Arrest
Failed to stop when called upon
20 Nov 2004
Fine $500
Fine $200
Fine $500
Mandurah Court of Petty Sessions
9 Mar 2004
Dangerous driving
5 Mar 2004
Fine $350
Mandurah Court of Petty Sessions
24 Jul 2002
Common Assault
Criminal Damage
Fine $500
Fine $500
Mandurah Court of Petty Sessions
29 May 2002
Possess prohibited weapon x 2
Possess weapon
Fine $150 (global)
MDL Suspensions
12 Oct 2005
Traffic – Demerit Suspension
MDL disq. 3 mths – (served 1825hrs) (LIC N/A EXP) CUM
27 Mar 2004
Traffic – Demerit Suspension
MDL disq. 3 mths – (served 1130hrs)
24 Aug 2001
Traffic – Demerit Suspension
MDL disq. 3
mths – (served 1805hrs)
As noted above, on 2 March 2018 the Applicant was convicted of causing grievous bodily harm and was sentenced to a term of imprisonment of three years and six months.
On 15 January 2019 the Applicant’s visa was cancelled under s 501(3A) of the Act and a notice advising the Applicant of the cancellation was, on that day, delivered by hand to the Applicant.[3] That notice advised, amongst other things, that the Applicant could seek revocation of the cancellation of the visa and advised how the Applicant could make representations about the revocation of the cancellation.[4]
[3] R1, G8.
[4] R1, G8/44.
The Applicant requested revocation of the cancellation of the visa and made representations in support of that request.[5]
[5] R1, G9 and G10.
By the decision dated 7 February 2020 the delegate of the Respondent refused to revoke the cancellation of the Applicant’s visa.[6] The Applicant was notified of that decision by letter sent by email to his authorised representative and delivered by hand to the Applicant on 10 February 2020.[7] It is of that decision dated 7 February 2020 that the Applicant seeks review in these proceedings.
[6] R1, G4.
[7] R1, G2.
THE HEARING
The application was heard on 21 April 2020. The Applicant represented himself and appeared by video link from the Yongah Hill Immigration Detention Centre.
The Respondent was represented by Mr J Papalia of the Australian Government Solicitor who also appeared by video link. The witnesses gave evidence by telephone.
These arrangements were made necessary by the closure of the Tribunal premises to the public and parties due to the COVID-19 pandemic. The Tribunal thanks the parties for their cooperation.The Applicant gave evidence and was cross-examined. The following witnesses were called by the Applicant and gave evidence and were cross examined:
·Ms Bianca Weily
·Mr Zachariah Dawson
·Ms Lynette Marie Peterson
The following documents were admitted into evidence:
(a)Witness statement by Daniel Peterson, dated 31 March 2020 (Exhibit A1);
(b)Witness statement by Bianca Lee Weily, dated 1 March 2020 (Exhibit A2);
(c)Witness statement by Cruz Peterson, dated 18 February 2020 (Exhibit A3);
(d)Witness statement by Lynette Marie Peterson, dated 1 April 2020 (Exhibit A4);
(e)Witness statement by Heidi Rachel Roil, dated 14 February 2020 (Exhibit A5);
(f)Witness statement by Nicholas Evans, received on 7 April 2020 (Exhibit A6);
(g)Witness statement by Mark Reynolds, received on 7 April 2020 (Exhibit A7);
(h)Witness statement by Zachariah Dawson, dated 12 February 2020 (Exhibit A8);
(i)Witness statement by Brent McCallum, dated 17 February 2020 (Exhibit A9);
(j)Witness statement by Glennis McCallum, dated 18 February 2020 (Exhibit A10);
(k)Witness statement by Ian Leach, dated 18 February 2020 (Exhibit A11);
(l)
Letter from Mark Mahon, Counselling and Support, Holyoake, dated
27 March 2020 (Exhibit A12);
(m)G Documents and Supplementary G Documents (Exhibit R1); and
(n)Respondents Statement of Facts, Issues and Contentions (Exhibit R2).
THE EVIDENCE
The Applicant
As well as the Applicant’s statement of 31 March 2020 (A1), a number of other statements of the Applicant were included in the G documents.[8] The other statements are at
R1, G12, G13 and G14. The Applicant also made statements in his request for revocation of the cancellation of the visa and supporting representations (see [10] above). At the hearing, under affirmation, the Applicant stated that the contents of his statements and request for revocation and representations in support thereof were true and correct.[9][8] R1.
[9] Transcript at 19-20.
A significant portion of the Applicant’s statements repeat the same information and make the same submissions. Most of the information set out in the Applicant’s earlier statements is also set out in his most recent statement A1.[10] Materially in that statement A1 the Applicant says:
[10] R1, G12-14.
(a)He has been with his partner, Bianca Weily, for 11 years and they have a seven year old son.
(b)He has only known Australia as home, having come to Australia as an 11 year old.
(c)He does not know New Zealand and has no connections there.
(d)Around 10 years ago he bought a house, having worked hard to save the deposit.
(e)He has always suffered from depression and anxiety and his house is his ‘safe place’
(f)His mental health has improved since he has been in prison and has undertaken various courses and started going to church.
(g)He wants to stay in Australia to stop his son going down the same wrong course that he went down. His son needs a father around to teach him right from wrong.
(h)If he were to be deported to New Zealand, his son would not be able to go with him because his son has committed to his pets and would not be allowed to take them to New Zealand.
(i)His partner, Bianca, has hardly missed a visit while he has been in prison over the last two years.
(j)
Bianca has found it hard to cope emotionally and financially with him in prison.
She has managed to look after their son and to make the mortgage payments on the house.
(k)Bianca does not smoke, drink or take drugs.
(l)He can feel a difference in himself since he has been alcohol and drug free for the last four years. It has helped with his mental health and he will not go back to taking drugs and drinking.
(m)The Australian drug culture has ruined his life. He is putting his life back together.
(n)People he previously mixed with tried to drag him down because they did not want him to have a good life because their lives were not good. People around him were only happy when he was doing bad things.
(o)He has always felt that people were against him doing well. He will not mix with those people and will choose his friends carefully in the future.
(p)He has always felt alone and an outsider. He started taking drugs to fit in. He took marijuana, speed, LSD and alcohol but stopped ‘cold turkey’ about a year after he started.
(q)He sought help from his mother, however, she was unable to help.
(r)He ended up taking medication and after about 10 years he started to ‘feel himself again’. In his bad times he tried to take his life a couple of times. When the medication stopped working he went back to alcohol and drugs to fit in.
(s)His family had issues. His sister was messed up. His father found it hard to show love. He died about three years ago.
(t)Drugs and alcohol have caused him to make mistakes. He would now rather have no friends than the wrong friends. He is happy just to be with his family.
(u)He deeply regrets hurting the person on the day. He is thankful that ‘the accident’ was not worse and that he did not take his life. He hopes that the person can forgive him. He is not the same person that he was when he committed the offence
(v)He regrets having joined the Outlaws motorcycle gang. He had hung around the member of the Outlaws and felt that he had to join ‘to be accepted by those people’. His partner Bianca was never supportive of him joining.
(w)The club was a negative influence and kept him away from his family so he decided to quit the Outlaws. He would never hang around or be associated with an outlaw motorcycle gang in the future.
(x)He wants to be able to guide his son and steer him away from drugs.
(y)He put his faith in his lawyer who represented him on the grievous bodily harm charge and that lawyer let him down. He wanted to plead guilty from the beginning but the lawyer said not to and then told him at the last minute to plead guilty ‘because of the evidence’.
(z)
At the sentencing hearing the lawyer failed to mention to the judge that the Applicant had been under ‘house arrest’ for two years leading up to the hearing and had not breached the terms of his parole or once failed a drug test.
In sentencing him the judge had not mentioned the fact that for two years of house arrest he had not breached the law.
(aa)If he does not get his visa back he will not be able to teach his son important things in life like how to fix cars and how to treat women and how to respect people and work for things that you want.
(bb)He is fearful that is he is sent to New Zealand he will be alone and will revert to making bad decisions.
(cc)Despite what the sentencing judge said, he does respect the law.
(dd)While he has been in prison and detention he has done the right thing, has not failed any drug and alcohol tests, has not broken the law and has undertaken AA (alcoholic anonymous) and NA (narcotics anonymous) courses and tried to better himself.
(ee)The guards have complimented him on his politeness.
(ff)He has only four immediate family members left. Together with his family he will attend church, continue to better himself and will seek professional help.
(gg)He intends to marry his partner.
In his statement which appears at R1, G12, the Applicant provided much of the information set out in his statement A1, and in addition said:
(a)If he is sent back to New Zealand, Bianca and his son would go and live with her family in Tasmania.
(b)Before he went to gaol his father was dying and his mother was not able to cope.
(c)He does not know any of his family in New Zealand who could look after him.
(d)He has stopped taking his medication for the last two years and has changed his diet as he has worked out that certain foods give him anxiety. He now feels as well as he did when he was 16.
(e)His partner, Bianca, writes him a letter every week and his son sends him drawings.
(f)He has tattoos on his face which he is looking at having removed.
(g)
His partner did not know that he was on drugs when they were living together.
His drug taking increased because he could not handle the pressure of his father dying.
(h)In addition to his AA and NA attendances, he has undertaken a violence management course and has done volunteer work while in prison.
(i)He worked as a polly welder at Alcoa for 7 years and worked at Bunnings and worked as a painter.
(j)Neither of his parents did drugs and told him not to, however, being stupid, he did try drugs and has been paying for it ever since. His partner would not stand for him using meth again and he knows that he would lose her if he did.
(k)He has only been back to New Zealand once since he left as an 11 year old.
In his statement signed by the Applicant on 31 March 2019 appearing at R1, G13, the Applicant makes many of the same comments as are made in the two above statements. In addition he says:
(a)He did not know his victim other than that he was associated with the same motorcycle gang with which the Applicant had been affiliated.
(b)The reason that he ended his membership of the Outlaws motorcycle gang was that he did not want to expose his partner and son or himself to the criminal element attached to the Outlaws culture. Being a member of a gang was not a good role model for his son and was not consistent with him being a contributing member of society.
(c)The club agreed that he could leave, however, not long after he left he was informed that the club was seeking retribution for his leaving. A ‘bash on site’ order had been issued.
(d)At around the same time he was laid off work at Alcoa where he had been for around seven years. At around that time his father also died and he started taking drugs because of his anxiety and stress.
(e)His partner had flown to visit her family in Tasmania and his cousin had told him that his partner was having an affair. His drug use ‘spiralled’ and he attempted to take his own life.
(f)He saw the victim on his motorcycle and he decided to ‘strike first’ and drive his car at the victim pinning him and his motorcycle against the wall.
(g)Since being incarcerated he has identified areas of his behaviour that he needs to address. He has put together a ‘release prevention plan’.
(h)He has completed the Sycamore Tree seven week program which focuses on the impact of crime on victims. This has given him ‘ownership’ of his criminal behaviour.
(i)He is involved[11] in the medium intensity general offending program. This is a four and a half month program aimed at providing insight into the offending behaviour and identifying triggers for that behaviour.
(j)
His making a false declaration on his immigration card by failing to declare that he had a criminal conviction was caused by his cousin having filled in the card.
The Applicant was unaware that his cousin had ticked the ‘no’ box in response to the question of whether the Applicant had a criminal conviction.
[11] This statement was made while the Applicant was in Acacia Prison.
The Applicant’s statement dated 17 January 2020 does not contain any information that is not included in the other three statements.[12]
[12] R1, G14.
As noted above, the Applicant’s partner and his mother also gave evidence at the hearing.
The Applicant’s mother
The Applicant’s mother provided three statements.[13] In these statements the Applicant’s mother says:
[13] A4 and R1, G24/180 and G24/181.
(a)She 70 years of age.
(b)Her husband, the Applicant’s father, died in August 2016. He spent the last three months of his life in home palliative care during which time the Applicant was able to visit his father. The Applicant was at that time on home detention.
(c)The Applicant is family oriented and a loving father and fiancé. He is ‘loving, honest, trustworthy and of good character’.
(d)He has turned his life around since his arrest and has been successfully rehabilitated.
(e)Her father was killed in an accident when she was young and the Applicant being sent to New Zealand would have the same traumatic effect on her.
(f)If he were to be sent back to New Zealand his partner, Bianca, and her grandson would move to Tasmania. The Applicant’s mother would not be able to travel to New Zealand to visit the Applicant if he were to be deported because she has no family in New Zealand.
(g)The Applicant has expressed remorse for his offending.
(h)He was poorly represented by his lawyer who told him to plead not guilty and then had him change his plea.
(i)
The Applicant has been a great help to her and was a great help to his father.
He did jobs for his father after he became sick and could not do the jobs himself.
(j)His partner Bianca and his son have regularly visited the Applicant while he has been in prison and immigration detention.
(k)When the Applicant was at school he had to endure racist discrimination and was bitten on the back by an aboriginal boy which caused the doctor to order the Applicant be tested for HIV and hepatitis infection.
(l)After he left school he became an upholsterer and then worked for Alcoa and saved enough money to pay the deposit to buy his house.
The Applicant’s partner
The Applicant’s partner, Ms Bianca Weily, provided two statements.[14] In those statements Ms Weily says:
[14] A2 and R1, G16.
(a)She has known the Applicant for 12 years and has been his partner for 11 years. She and the Applicant have a seven year old son. They intend to get married.
(b)The Applicant does not have any family in New Zealand. All of his immediate and close family is in Australia.
(c)She is originally from Tasmania and would not be able to move to New Zealand because her family and support are in Australia and they have pets which would not be able to be relocated to New Zealand. She also has a job in aged care which she loves.
(d)She has managed to ‘step up’ since the Applicant went to prison and has been able to keep their home.
(e)Her son has suffered from separation anxiety since the Applicant was imprisoned and has been seen by a counsellor through pre-primary and grade one.
(f)Their son and the Applicant played games and sports together and drew and collected toys. They are very similar and like the same things. Being separated from the Applicant has knocked their son back.
(g)She would be devastated if the Applicant were to be deported. She has visited him every week since he has been in prison and immigration detention. She takes their son with her when she visits the Applicant.
(h)She is aware of the Applicant’s offending but does not think that he is a bad person ‘because of the mistake he made. Daniel is not his crime’. He was at the time going through a lot and had the wrong people around him
(i)
He has now changed and has been severely punished for his actions already.
He has shown remorse for what he did and has sworn that he will not touch substances again. He has learnt his lesson and now just wants to concentrate on her and their son.
(j)She does not drink or take drugs. She has tried to instil the same in the Applicant. She will continue to support him.
(k)She never approved him joining the Outlaws motorcycle gang. When their son was born the Applicant left the gang. He only joined the gang because he felt that he needed to be accepted by people.
(l)The Applicant is a fantastic father. Even when he was in prison he sent money to her to buy presents for their son. He cares for his sister and mother, particularly after the death of his father about three years ago.
(m)She has recently started a new job in aged care and if the Applicant were home he could look after their son so that she could work to support the family. Having the Applicant home would also benefit their son’s separation anxiety.
(n)She suffers from chronic sinusitis and is currently awaiting surgery.
(o)She says that their son needs his father around as she has heard of children turning to crime and making bad choices because their fathers were not around.
(p)The Applicant is kind, hard-working and trustworthy. He has attended AA and NA while in prison and has been baptised. They will continue to attend church as a family when he gets out of detention.
(q)
The Applicant was ‘unfairly judged on his past behaviour when he went to court for sentencing the judge constantly talked about [his] crime committed 7 years prior to this one…Daniel also put his trust in his lawyer as did I and he really stuffed things for Daniel’. The Applicant had wanted to plead guilty from the beginning.
The lawyer failed to mention at the sentencing hearing that the Applicant had been on home detention for two years during which time he had not breached the terms of the detention order.
(r)While he was on home detention he worked to support the family and also helped look after his father who was dying.
(s)With the worst of the corona virus yet to come, she wants the Applicant home to help look after their son and her and so that she can continue to self-isolate because she works in an aged care facility. The Applicant’s mother, because of her age, is also in the high risk category to the corona virus and would benefit from having the Applicant home to look after her.
Mr Zachariah Dawson
Mr Dawson provided two statements.[15] In those statements he says:
[15] A8 and R1, G28.
(a)He is 26 years of age and is a close friend of the Applicant who he has known for eight years.
(b)
He got the Applicant a job for about two years with BDP Industries when he was under home arrest. Mr Dawson was the Applicant’s supervisor. At work the Applicant applies himself well to any task and always delivers high quality work.
He is easy going and well regarded by his peers.
(c)Through his conversations with the Applicant he found him to be honest and truthful.
(d)The Applicant went ‘above and beyond’ at work, always looked out for his co-workers’ safety and dealt well with customers.
(e)While driving to and from work they often discussed ‘his accident’ and the Applicant expressed remorse, wishes that he had never hit the guy and wants to move on and grow old with his family. He wants to ‘lead by example, teaching his son right from wrong’.
(f)At the time of the ‘incident’ the Applicant had just lost his father, lost his job and was struggling with alcohol and drugs. He no longer drinks or takes drugs.
(g)The Applicant has close social and family ties, is kind and generous and is always helping someone. He visits his mother weekly and does jobs around her home.
(h)The Applicant believes that his parole was refused because it was thought that his son would be better without him.
(i)If the Applicant is deported it will be a tremendous loss to his family and friends.
Statements and letters of support
In addition to the statements and letters admitted into evidence as listed in [14] above, and the statements and letters identified in [15], [21], [22] and [23], there were further statements and letters of support included in the G documents (R1). These were letters or statements from:
(a)the Applicant’s sister, Heidi Roil (R1, G25);
(b)Jason Martin, a former work colleague of the Applicant (R1, G26);
(c)Ian Leach, a family friend of some 25 years (R1, G27);
(d)Kirsty Fowler, a friend of the Applicant’s partner (she says that she has only met the Applicant a ‘few times’) (R1, G29);
(e)James Turnbull, a former employer of the Applicant (R1, G30);
(f)Craig Andri who says that he has known the Applicant for most of his life (R1, G31);
(g)Christopher Clements who has known the Applicant for over 10 years through his daughter who is a friend of Ms Weily (R1, G32);
(h)Daniel Bourne a friend of the Applicant’s for 25 years (R1, G33); and
(i)the Reverend Mark Arney, Chaplain Acacia Prison (R1, G21).
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act provides that:
The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) ...; and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
A ‘substantial criminal record’ is defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a) ...
(b) ...
(c) the person has been sentenced to a term of imprisonment of 12 months or more
Section 501CA of the Act provides:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
...
(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.
Ministerial Direction 79
Section 499(1) of the Act provides that:
(1)The Minister may give written directions to a person or body having functions or powers under this Act ... if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
Section 499(2A) of the Act states that:
[a] person or body must comply with a direction under subsection (1).
On 20 December 2018 the Minister for Immigration, Citizenship and Multicultural Affairs made a direction under s 499 of the Act, named ‘Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under 501CA’ (Direction 79). The commencement date for operation of Direction 79 was 28 February 2019.
Paragraph 6.1 sets out the objectives of Direction 79. Paragraph 6.1(3) relevantly provides:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 of Direction 79 provides general guidance 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.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction 79 sets out principles which must be taken into account by persons making decisions under s 501CA(4) of the Act, including the Tribunal. They are:
(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 women or children or vulnerable members of the community such as 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.
Paragraph 7(1)(b) of Direction 79 provides that, informed by the principles set out in paragraph 6.3, the decision-maker (in this case the Tribunal) must take into account the considerations in Part C of Direction 79 in order to determine whether the mandatory cancellation of the visa will be revoked.
Paragraph 13(2), which is in Part C of Direction 79, provides:
In deciding whether to revoke the mandatory cancellation of 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.
Further guidance as to how a decision-maker is to apply the considerations in Direction 79 can be found in paragraph 8 of Direction 79 which provides:
(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.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
CONSIDERATION
Does the Applicant pass the character test?
Failure of the character test arises as a matter of law: Re Harrison and Minister for Immigration and Citizenship[16] at [63]-[45]. The character test is defined in s 501(6) of the Act. Under s 501(6)(a) of the Act, a person will not pass the character test if the person has ‘a substantial criminal record’. This phrase, in turn is defined, relevant to this case, in s 501(7)(c) (see [26] above) which provides that a person will have a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more.
[16] [2009] AATA 47; (2009) 106 ALD 666.
The Applicant has been sentenced to a term of imprisonment in excess of 12 months and, as a result, has a substantial criminal record as defined in s 501(7) of the Act and therefore does not pass the character test (s 501(6) of the Act). The only issue for consideration is therefore whether there is a reason to exercise the discretion to revoke the cancellation of the visa under s 501CA(4)(b)(ii) of the Act (see [27] above).
PRIMARY CONSIDERATIONS
First primary consideration: Protection of the Australian community from criminal or other serious conduct (Direction 79 para. 13(2)(a))
Paragraph 13.1 of Direction 79 provides that when decision-makers are considering the protection of the Australian community, they:
(1)...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. Remaining in Australia is a privilege that Australia confers on noncitizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2)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.
Nature and seriousness of the conduct (paragraph 13.1(2)(a))
Paragraph 13.1.1(1) of Direction 79 provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b) The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c) The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f) The cumulative effect of repeated offending;
g) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
i) 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; or 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 197A of the Act;
The Applicant’s criminal and driving offending record is set out in [7] above.
The conviction which caused the cancellation of the Applicant’s visa under s 501(3A) of the Act was the conviction for grievous bodily harm recorded on 2 March 2018 for the offence committed on 6 February 2016.
The circumstances of the offending on that day were set out by Birmingham DCJ at the Applicant’s sentencing as follows:[17]
In this case, the victim was a rider of a motorcycle who was straddling his parked motorcycle who you drove at. He was in a vulnerable unprotected position. You were in a motor vehicle capable of causing considerable harm and did.
The circumstances of the offending have been read by the State prosecutor, Ms Yeung, and those facts are accepted by your counsel, Mr Dobson, and I incorporate those remarks and facts into these remarks.
[17] R1, SG2/341-342.
The circumstances of the offending as read by the State prosecutor were as follows:[18]
[18] R1, SG2/328-330.
Those facts are that about 1.30 pm on Saturday, 6 February 2016, the offender attended the bottle shop of the Peel Ale House located at Guava Way, Halls Head. He drove to the location in his silver Holden Commodore sedan, registration number MH-843V.
The offender drove into the bottle shop drive-through via the exit and was advised by staff that he could not go that way. He ordered alcohol and moved his car into the adjacent car park.
An employee from the bottle shop carried two cartons of beer to the offender's car and walked back towards the store.
The 31-year-old victim rode into the car park on his Harley Davidson motorcycle and parked along a nearby wall. The victim was a wearing vest which contained the name of an outlaws motorcycle gang. The offender was formerly associated with that gang and became angry on seeing the vest. He did not know the victim at all.
The offender accelerated heavily and drove directly at the victim who was still seated on his motorcycle. He impacted the side of the motorcycle crushing it against the wall pinning the victim's legs. He reversed his vehicle as the victim attempted to crawl off the motorcycle and get away from the area.
The offender once more accelerated heavily and drove directly at the victim again, smashing into the side of the motorcycle and hitting the victim. He reversed once more and again accelerated heavily into the side of the motorcycle. He reversed his vehicle and drove from the scene making no attempt to render assistance to the victim.
Members of the public who had seen the incident went to the aid of the victim and emergency services were called. Police and ambulance officers arrived and the victim was conveyed to the Peel Health Campus and onto Fiona Stanley Hospital for medical treatment.
The offender was located at his residence a short time later and arrested.
The offender was initially unable to participate in a formal record of interview with the police as he stated he had not slept in some time and was too fatigued.
He subsequently participated in a formal record of interview and made significant admissions.
The victim's injury consisted primarily of a badly broken leg. Medical reports state that there were four breaks on the leg including a compound fracture where the bone protruded from the skin.
The victim required surgery to repair the injury which included the insertion of a pin into his leg. The victim still suffers pain in his right leg and cannot kneel on the right leg and squatting is painful such that he can no longer perform previous work as a belt splicer and has had to take on a role as a leading hand instead which is less pay.
It is likely that the victim will require further surgery in the future to remove the pin in his leg.
Having incorporated the facts as read by the State prosecutor, Birmingham DCJ then observed:[19]
[19] R1, SG2/342-343.
In essence, the nature of the offending involved you having gone to the bottle shop at the Peel Alehouse in Halls Head, noted the victim arrive on his motorcycle at a time when you were then in your motor vehicle in the car park.
You noted that he was wearing a vest from the outlaw motorcycle gang, a gang with which or with whom you were previously associated. It's said that you became angry upon seeing the vest. Even though you didn't know the victim, you accelerated and drove directly at him while he was seated on his motorcycle.
You impacted the side of the motorcycle and crushed it against the wall pinning the victim's legs. You reversed your vehicle as the victim attempted to crawl off and again drove directly at him smashing into the side of the motorcycle and again hitting the victim.
You reversed once more and again accelerated heavily into the side of the motorcycle. You then reversed and drove off from the scene making no attempt to render assistance and by any measure, this is a serious example of behaviour that constitutes the offence of grievous bodily harm.
I can well accept why the State initially indicted you on a charge of grievous bodily harm with intent to do grievous bodily harm. Your driving on the day evinced an intention to cause considerable harm to the victim, a person who was a stranger to you.
The injuries that were suffered by the victim I would have to say were significant. They were in essence compound fractures of the legs with bone protruding from the skin. It required surgery to repair the injury and as a consequence of the injury, he was unable to kneel or squat, unable to perform his previous work as a belt splicer and had to take on an alternate role with less pay.
He's likely to require further surgery in time to come to remove the pins that have been placed in his leg. It's the repeated use of a motor vehicle as a weapon that is a significant aggravating feature. It caused significant injury to an unsuspecting victim.
It was deliberate, unprovoked and you then departed without checking on his welfare or doing anything by way of assistance. If as you said in your pre-sentence report and psychological report it was of the nature of panicking and concern, one might have thought that some concern as to the welfare of the victim would have been at the forefront of your mind.
The fact that you drove off is because the only thing that was then on your mind was your own position. I'm told that you'd use drugs the preceding day and that's said to provide some explanation.
At the hearing the Applicant was taken to the statement of facts as set out in the transcript of the sentencing. He did not dispute the facts as set out. He was taken to his description in his 30 March 2020 statement of the events of that day as follows:[20]
[20] A1. Transcript at 35-36; 42.
COUNSEL:All right. So, Mr Peterson, I’m going to go back to your letter, and halfway down the fifth page:
I think when I had the accident was the victim that day, I was full of regret from being (indistinct) I made in joining the club, but I couldn’t see clearly as to what I was doing. On top of being on drugs at the time, it was like an out-of-body experience I had no control of.
…
COUNSEL:And so you refer to it as an accident. What do you mean by that?
APPLICANT: Hurting the person, you mean?
COUNSEL:Well, you describe it as an accident and then you also refer to it as a mistake later in your statement. What do you mean by that?
APPLICANT: Well, an accident -well, I can’t really honestly say it’s an accident now. It was a - just an act of stupidity. But I didn’t - honestly, I didn’t - it was like someone else was in my body driving it. It was - it was so strange. I ended up smashing up my own place, which I wouldn’t do. It was - honestly, the - the drug is something evil, like - and I have never, ever experienced nothing like it in my life, and it’s - it has honestly ruined my life, because I - if you have ever tried it, it’s - it’s something you would - you know, and I’m not saying you have tried it, but it’s evil.
…
COUNSEL:Your driving wasn’t a mistake, was it?
APPLICANT: … my actions were a mistake, what I done is very disgusting, like – I’ve got no – but my drivings weren’t a mistake, no.
COUNSEL:Well, your actions weren’t a mistake in the sense that you deliberately drove the car at the victim, didn’t you?
APPLICANT: Yes. I’ve done what I’ve done, you know, and at that time I was heavily under drugs and me now, that’s not the person I am. Like I look at it like, it’s disgusting, you know, like I can’t – I can’t believe what I’ve done, like it’s just – it’s still – it just doesn’t seem real. Like it’s like those things when they say you get a hangover it lasts a lifetime, that’s exactly what it is. I feel disgusted in what I’ve done, like, you know, for his family, but, you know, the victim, I could have taken him away from his kids. You know, I’ve had to live with that every day and it destroys me.
…
COUNSEL:It was deliberate, it wasn’t provoked, and then you left?
APPLICANT: Yes, no, it wasn’t provoked and I did do that and yes, I did leave.
The Applicant also has a conviction for assault occasioning bodily harm in 2009 and a common assault conviction in 2002. The Applicant was sentenced to eighteen months imprisonment suspended for two years for the 2009 conviction for assault occasioning bodily harm. At the hearing the Applicant’s evidence, contrary to the Australian Criminal Intelligence Commission (ACIC) report,[21] was that he had been acquitted of the assault occasioning bodily harm charge in 2009. The following exchange took place:[22]
[21] R1, G6.
[22] Transcript at 28-29.
COUNSEL:The first being that you on 13 December 2008 at Mandurah unlawfully assaulted Adam John Ragg and thereby did him bodily harm?
APPLICANT: Yes.
COUNSEL:The second offence - charge is that you on 13 December 2008 at Mandurah was to be armed with an offensive instrument, namely a claw hammer, in circumstances that were likely to cause fear to any person?
APPLICANT: Yes.
COUNSEL:So you accept that you were charged with those two offences in the Magistrates Court of Western Australia by prosecution notice?
APPLICANT: I was - under what I believed, once it had been done, I thought I was on self-defence and charged with going armed in - armed in public, because in that statement - or in the actual thing, I was the one who copped the hiding and got hit with the hammer. The two statements those people made against it were utter lies. There was one statement that was pretty much almost true, and if - because there was actually a DVD evidence of it.
COUNSEL:Okay. If you turn to the - - -?
APPLICANT: Like, I’m not stating the fact I didn’t - I - I went with the hammer and did what I did, but I actually - I showed it to them and walked away, and then these people come at me, and then that’s when it all started, and then I - I copped the hiding and I went to hospital and whatnot.
COUNSEL:Yes. Mr Peterson, have you seen the Minister’s statement of facts, issues and contentions?
APPLICANT: Not recently, no. What page is that?
The Applicant was then taken by counsel to the Respondent’s SFIC and the following exchange occurred:[23]
[23] Transcript at 29-30.
COUNSEL:But the facts that the police alleged were that at about 11.55 on Saturday, 13 December 2008, you were in company with another person, that person being called Oatley, and you (indistinct) to the Brighton Hotel in Mandurah?
APPLICANT: Yes.
COUNSEL:At that time, so just before midnight, there was a security guard, John Leleur(?), sitting on a brick planter box at the front of the hotel, and another guard, Raquel Reid, was at the front door of the hotel?
APPLICANT: Yes.
COUNSEL:Now, you were in the passenger side of a white Ford sedan?
APPLICANT: Yes, that is right.
…
COUNSEL:That sedan pulled up at the front of the hotel. You exited the car, and got out of the passenger side. You had a claw hammer in your hand and you ran towards Mr Leleur?
APPLICANT: Yes.
COUNSEL:Mr Leleur saw you and ran to the other side of the garden box?
APPLICANT: No, that is not true.
COUNSEL:Another member - thank - Mr Peterson, what I’m going to put to you is the facts that the police allege and then ask you - take you to what’s in the - the bundle of documents?
APPLICANT: Okay. Sorry.
COUNSEL:A third member of the Brighton Hotel staff, Mr Ragg, saw you get out of the car and confronted you. Police allege that during the melee, that is, the confrontation between you and Mr Ragg - - -?
APPLICANT: Yes.
COUNSEL:Mr Ragg was struck by you with the hammer? (Indistinct). But at the same time, he also kicked you in the stomach. Is that the assault that you were talking about? That is, you were bashed up?
APPLICANT: Yes, that’s the assault that happened, but not in that case. I walked up to the other party, John, I think it is, and I showed him the hammer and then I have walked backwards, and then Mr Ragg has come up and kicked me in the side and then given me a few hits, and I have gone to the ground and then he has grabbed me and then we’re wrestling, and by this stage I had forgotten I had the hammer in my hands. I have gone up to grapple with them and I have struck him with the hammer, and then that’s basically all I knew. I have - then I have been hit all different directions, beaten up. I actually got hit with the hammer myself. I have got a scar on my eye here from it. You know, I’m not condoning what I have done. Like, it was very silly. I should - you know, now I wouldn’t even do something like that, but at the time, I - it was stupid actions that I did do. But there was a DVD of it - of the event, and that’s why I got acquitted of it, because I didn’t actually go up to hit this person. I just pretty much showed them the hammer. I was - and the same thing, I was drunk and under the influence of drugs again, or I wouldn’t have done it.
The Applicant was then taken to a letter that his lawyer who represented him on the charges arising out of that incident wrote to the police in December 2008.[24] The following exchange then took place:[25]
COUNSEL:Can I get you to have a read of that two-page letter?
APPLICANT: Yes, I see that. That does say that he run, but I don’t have any recollection of him running and I don’t really have any recollection of that, as I have been hit with a hammer and I was pretty intoxicated and whatnot, and I know it did - was a statement after a few days, but - but I do see what you - what you mean there.
[24] R1, SG4/598.
[25] Transcript at 31.
Relevantly what that letter said was:
…Mr Peterson admits that he was in possession of a hammer and that he did arrive at the Brighton Hotel wielding the hammer with the intention to deal with a dispute between himself and one of the other security officers (not the victim Wragg).
He further admits that he did approach his intended opponent but that the person started running away and he was then intercepted by Wragg who kicked him in the stomach which doubled him over.
The Applicant explained that the cause of the altercation on that evening was that a tattoo shop in Mandurah in which his cousin worked, his cousin was also involved in the altercation at the Brighton Hotel, had been burned down the night before. The Applicant was asked whether, but denied, that the tattoo shop was associated with the Outlaw motorcycle gang.[26]
[26] Transcript at 33.
The Tribunal accepts that the Applicant was, as the ACIC report records, convicted of assault occasioning bodily harm in February 2009 for which he received a sentence of imprisonment of eighteen months suspended for two years. The Tribunal notes that this conviction is also recorded in the Western Australian Police History for Court – Criminal and Traffic report and was referred to by Birmingham DCJ in his sentencing remarks in February 2018.[27]
[27] R1, SG4/545; R1, SG2/345.
Birmingham DCJ assessed the Applicant’s offending history as follows:[28]
When I have regard to your previous behaviour it indicates a persistent defiance and disregard for the law. You certainly cannot be considered to be a person of good character. Your previous convictions include offences for violence, including assault occasioning bodily harm in 2008 for which you were placed on a suspended imprisonment order and offences including possession of weapons and assault charges as far back as 2002, resisting arrest in 2005.
[28] R1, SG2/345.
In relation to the attack in the hotel bottle shop in February 2016, his Honour characterised the Applicant’s offending as follows:[29]
In this case this was a deliberate attack by you, seemingly out of revenge for threats that had been made to you. It places the conduct towards the upper end of the scale.
There's nothing to suggest that any conduct on the part of the victim had any role to play in your attack upon him. He was a stranger to you. You didn't know him. He just happened to be a member of a gang that you were no longer a member of and you thought that he was an appropriate person for you to mete out any anger you had against that club, for whatever reason.
I have regard to the matters that have been raised by your counsel in mitigation and the pre-sentence and psychological reports, your plea and also the steps you've taken towards addressing anger management issues with private psychological treatment in recent months.
In my view, however, the seriousness of the offending is such that the only appropriate disposition is a term of imprisonment of three years and six months.
[29] R1, SG 2/347.
The Applicant’s offending has involved significant degrees of violence and his offending is to be viewed very seriously (Direction 79 para, 13.1.1(1)(a)). The sentence imposed, specifically the three and a half year sentence imposed for the grievous bodily harm offence, indicates that the Applicant’s offending is to be viewed as serious (para, 13.1.1(1)(d)) and the Tribunal also notes that the Applicant has provided false or misleading information to the department by his false immigration entry card (see [18(j)] above) (para. 13.1.1(1)(g)).
The Applicant also has convictions for common assault, criminal damage, resisting arrest and possession of a weapon. The Respondent also points to the Applicant’s convictions for driving offences and notes that the Applicant has two convictions for driving under the influence of alcohol and separate convictions for dangerous and reckless driving between 2004 and 2018. Separately, the Applicant has three suspensions of his motor driver’s licence arising from demerit point suspension.
In relation to the driving offences, the Respondent submits that continued traffic offences of that kind clearly point to an incapacity on the part of the Applicant to distinguish right from wrong and cites various decision of the tribunal that have so found. Three of the more recent tribunal decision cited are ReGage and Minister for Home Affairs[30] at [75]-[76] (Member Burford); Re SLNY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[31] at [43] (SM Dr Evans-Bonner); and Re Berryman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[32] at [80]-[81] (DP Boyle).
[30] [2020] AATA 326.
[31] [2020] AATA 344.
[32] [2020] AATA 421.
The Tribunal notes that there is a significant gap between the Applicant’s December 2008 offences (assault occasioning bodily harm and being armed in a way that may cause fear) and his next offences in February 2016 (grievous bodily harm and exceeding 0.08 alcohol), however, the nature and seriousness of the Applicant’s offending weighs heavily against the revocation of the cancellation of the Applicant’s visa. Obviously of most significance are the attack in December 2008 involving the use of a hammer and the attack using a car as a weapon on a member of the Applicant’s former Outlaw motorcycle gang in February 2016 which, as Birmingham DCJ put it, was ‘deliberate, unprovoked’ and ‘evinced an intention to cause considerable harm to the victim, a person who was a stranger to you’ (see [45] above).
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (13.1(2)(b))
Paragraph 13.1.2 of Direction 79 provides:
(1) 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 available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Senior Member Dr M Evans-Bonner in CZCV and Minister for Home Affairs.[33] (CZCV) summarised the task for the Tribunal as follows:
56. In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]- [43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
[33] [2019] AATA 91.
In BSJ16 v Minister for Immigration and Border Protection,[34] Moshinsky J stated, at [68]:
...there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.”
[34] [2016] FCA 1181.
The Tribunal agrees with and adopts the approach indicated in the above cases.
Nature of harm to individuals or the Australian community (13.1.2(1)(a))
The nature of the harm to individuals and to the community if the Applicant were to offend violently as he has in the past is obvious and serious. As noted by Birmingham DCJ, the injuries that the victim of the 2016 attack suffered were serious and life-changing.
The attack was of such a nature as to be likely to endanger life or cause permanent injury to health. Even the Applicant says that he is ‘thankful that the accident wasn’t worse and I didn’t take his life’.[35][35] A1, fourth page.
The Applicant’s poor driving record is also of concern. It is, in the Tribunal’s view, indicative of the Applicant having low regard for the law generally.
The likelihood of the non-citizen engaging in further criminal or other serious conduct – risk of re-offending (13.1.2(1)(b))
Throughout his submissions the Applicant attributes his history of violent offending to his drug and alcohol abuse and to his having associated with and sought acceptance by the wrong sort of people. He says that he is no longer the person who committed those offences. He says that he is now ‘clear of any poisons in [his] body’.[36]
He points to the various courses and programs that he has undertaken since being imprisoned and to his wanting only now to settle down, marry his partner and raise his son. He also says that he now regularly attends church, having been baptised while in prison in June 2018,[37] and that if he is allowed to stay in Australia, he will attend church with his partner and their son. Repeatedly through his various statements and in his evidence at the hearing, the Applicant referred to his desire to be a role model for his son and to be able to teach him right from wrong and not to make the same mistakes that he made.[36] A1 seventh page.
[37] R1, G22/148.
In his personal circumstances form submitted in support of his request for revocation of the cancellation of his visa,[38] the Applicant, having identified drugs and alcohol as being the cause of his previous offending conduct, identifies as factors militating against his
re-offending as the support that would be provided by his partner and his son and the fact that his partner does not drink alcohol or use drugs.[38] R1, G10/63.
It is the case that since being imprisoned the Applicant has undertaken a number of courses. There is also nothing before the Tribunal indicating that the Applicant has failed or refused a drug test while in prison and detention. The material before the Tribunal included certificates evidencing the Applicant having undertaken the following courses and programs:[39]
(a)Recover from Addiction, Acacia Prison (attending 12 weekly meetings);
(a)Sycamore Tree Project, Prison Fellowship Australia (November 2018);
(b)Medium Intensity Program, Acacia Prison (August 2019);
(c)Painting Skills (May 2018);
(d)Men’s Group, Yongah Hill Immigration Detention Centre (November 2019);
(e)Men’s Group, Yongah Hill Immigration Detention Centre (December 2019);
(f)Lifeskills, Yongah Hill Immigration Detention Centre (November 2019); and
(g)Lifeskills, Yongah Hill Immigration Detention Centre (December 2019).
[39] R1, G22/149-157.
The Applicant was asked at the hearing about the courses and programs that he had undertaken while in prison. He was taken to the Department of Justice Treatment Assessment Report[40] created 14 November 2018:[41]
[40] R1, SG3/398-401.
[41] Transcript at 45-46.
COUNSEL:It then has some comments about the grievous bodily harm and matters you discussed with the author. On page 399 it goes into an assessment (indistinct) to you, (indistinct), LSRNR, that’s the level of service (indistinct) and it indicates that you were rated then as being a high risk of general offending, do you accept that’s the case?
APPLICANT: Yes.
COUNSEL:If you turn over the page it also indicates that a violence risk scale was conducted on you, and that you had a total score of 35 and were considered to be a moderate risk of reoffending in a violent matter?
APPLICANT: Yes.
…
COUNSEL:If you turn to page 401 it provides a summary:
Based on the current assessment, Mr Peterson presents a high risk of general reoffending on the LSRNR, and a medium risk of violent offending on the VRS. It is recommended that Mr Peterson complete a medium intensity programme (indistinct) violent offending and substance abuse. Mr Peterson is seen to be between action and preparation stage of change regarding treatment factors. He is ready to engage in treatment programmes.
COUNSEL:You actually did participate in the medium intensity programme, didn’t you?
APPLICANT: Yes, I did. I did in prison and on my - - -
…
COUNSEL:All right. Well, I will take you to page 359, which is page 3 of the report?
…
And in the middle of the page the author notes:
The possibility of deportation and the destabilising effects of this may serve as a perpetuating factor in relation to your risk of recidivism. According to your (indistinct), you have no family in New Zealand and you would not know how to survive if these (indistinct). Mr Peterson’s deficits in relation to emotional regulations and difficulties experienced in abstaining from substance use may reflect further risk factors, other perpetuating factors could include future relationship issues, and your perception of being subject to bullying behaviour. You also expressed concern regarding your response to people making judgments based on your tattoos and the possibility of retribution from the OMCG, both of which represent his potential for (indistinct). Due to your pattern of offending, your belief regarding your entitlement to use violence in response to perceived threats may well (indistinct) represent consideration in relation to risk of recidivism.
The Applicant was then asked about various of his statements wherein he explains his behaviour by the fact of his being bullied at school and how he responded to that bullying with aggression which, when drugs and alcohol were added, was exacerbated. He was then asked about his involvement in the Outlaws motorcycle gang and its culture of violence.[42]
[42] Transcript at 47.
The Applicant was then taken to the Corrective Services Parole Assessment report dated 9 September 2019;
COUNSEL:And then on 429 at the bottom of the page under the heading “Victim Issues”:
Mr Peterson was interviewed by the Victim/Offender Mediation Unit, VMU, at Acacia Prison 2 September 2019. When discussing the offence with VMU he reported witnessing the victim wearing a (indistinct) from the same outlaw motorcycle gang he used to be a member of. He claimed upon leaving the OMCG they had threatened him with physical violence for leaving. Mr Peterson claimed his thinking was impaired by his illicit substance use, and fearing the OMCG had attended the same location to cause him harm, he attacked the victim. In the VMU report he claims to have resolved the issues through a third party and is not expecting any retribution as a result of this behaviour.
The Applicant’s evidence[43] was that he had resolved his issues with the Outlaws motorcycle gang, at least in Australia although he speculated as to what might happen if he were to return to New Zealand.
[43] Transcript at 49.
The Applicant was asked by the Respondent’s counsel about what he had learnt in the programs that he had undertaken:[44]
COUNSEL:You spoke earlier today about how you realised that violence isn’t - I think you said a solution?
APPLICANT: Yes.
COUNSEL:What have you learnt since doing that program about interpersonal aggression?
APPLICANT: What I’ve learnt it’s a ripple effect. Like, if - you know, it’s not just the victim you hurt, it’s the whole family, it’s the people that see it, it’s everyone around, it’s not just that one person. You know, you could destroy your life and how it ripples down. The fact - you know, like, if I had have killed this fellow how are his kids going to grow up? You know, there’s just different factors like that. You know, how is my son going to - you know, if I get sent away the ripple effect that I - from my actions what I’ve done, how it’s going to affect his life. You know, like, my mum, this victim’s mum, his family, just even the people at the bottle shop that seen it, you know, they must be horrified thinking, what if that happened to them.
[44] Transcript at 58.
The Tribunal notes that the recommendation of that Parole Assessment report[45] was as follows:
Mr Peterson informed his behaviour was the result of his amphetamine and alcohol use and claimed that he would not have committed the offences had he been sober. Mr Peterson was engaged in the Medium Intensity Program during his sentence, however, the completion report states he lacks insight into his illicit substance and alcohol use. Further Mr Peterson is a person of interest to Immigration and Border Force as he has appealed his deportation.
Given the above information, Mr Peterson’s release to Parole is not supported.
[45] R1, SG3/428.
Notwithstanding the report recommendation, parole was granted, on conditions,[46] with the reasons for the Prisoner Review Boards decision identified as:
(i)Successful completion of the Medium Intensity General Offending Program;
(ii)Participation in voluntary programs;
(iii)Gaps in offending history indicating an ability to lead a pro-social lifestyle;
(iv)Salutary impact of the term of imprisonment;
(v)The Applicant’s Parole plan; and
(vi)The fact that conditions of parole will further reduce the risk to the safety of the community.
[46] R1, G20.
While the Tribunal acknowledges that parole was granted, it also notes that the Parole Board is assessing risk for the period from the date the prisoner is released on parole until the expiry of the maximum sentence. The parole period is a period of supervision during which the prisoner, depending on the terms, will be supervised by, and report regularly to a community corrections officer who will monitor the prisoner’s compliance with the parole conditions imposed by the Board. That does not mean that the Parole Board is of the view that the Applicant is not a risk to the community, not even for the period of his parole.
The import of the parole order[47] is that the Parole Board was of the view that, with monitoring and supervision during the period of parole, the Applicant did not pose an unacceptable risk to the safety of the community.
[47] R1, G20/143.
The comforts that the Parole Board have in making an order for parole are that, firstly, it can impose conditions and, secondly, if the prisoner re-offends or breaches the conditions imposed, he will be taken back into custody and out of the community. This Tribunal does not have the benefit of those comforts when assessing whether an Applicant is an acceptable risk. Once an applicant’s visa is restored, the applicant is released free and unconditionally back into the community.
The Tribunal also notes and agrees with Senior Member Dr Evans-Bonner comment in Varley and Minister for Home Affairs[48] at [110] that:
The Tribunal cannot, however, defer to the opinion of the PRB to the extent that the Tribunal fetters its own discretion. The Tribunal must undertake its own independent consideration of the Applicant’s likelihood of reoffending, based on the merits of the Applicant’s application before the Tribunal and the submissions and evidence before the Tribunal.
(see also Gage and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[49] at [107])
[48] [2019] AATA 376.
[49] [2020] AATA 326.
The Parole Assessment report was not the only document to raise the suggestion of the Applicant lacking insight into his illicit drug and alcohol use or his offending behaviour.
At the Applicant’s sentencing, Birmingham DCJ, in discussing the pre-sentencing report and the psychological report (unfortunately neither of which is before the Tribunal due to State legislative constraints) with the Applicant’s counsel, commented that:[50]
I note in the reports that he tends to minimise his conduct
[50] R1, SG2/332.
The Applicant’s attitude towards his offending and his potentially minimising his culpability and blaming others was explored with the Applicant at the hearing. The Tribunal took the Applicant to the sixth page of his statement A1:
TRIBUNAL:Towards the middle of that page you say - well, about 10 lines down you say:
Everything the lawyer told me to do made it so much worse for me in the Judge’s eyes. When I first met my lawyer he told me that he didn’t like police and that he had no respect for them. How can he defend people when he has no respect for the law? I feel I was unfairly treated by him which led me to the sentence I received. He never once mentioned that I was on house arrest for two years and never once made a mistake or failed a drug test or anything.
TRIBUNAL:Is that your recollection of - this is Mr Dobson you’re talking about, is it?
APPLICANT: Yes. Yes, he - nothing ever was brought up of anything good I’d done. I was just made to sound like a monster which I understand, and everything the Judge said it was basically what the lawyer had told me to do. At the start after my dad passed I wanted to plead guilty from the start, and then when we were standing in the court, he said - and I was under the influence that we’re going guilty, and then he just said not guilty, and I looked at him and he just sort of put his hand up, he goes, ‘I’ll talk to you after’, and then when we got back to his office, ‘No, I’ll be able to get you off’. And I’m, like, ‘How?’. I said, ‘There’s no way you can get me’ - you know, like, I just couldn’t understand. I was thinking maybe he knows something I don’t know.
TRIBUNAL:Okay. I’m interested in your comment here that you say:
He never once mentioned that I was on house arrest for two years and never once made a mistake or failed a drug test or anything.
Can you turn to page 331 of the documents?
…
TRIBUNAL:And if you go to the bottom of that page, this is the transcript of the hearing before Judge Birmingham, and this is Mr Dobson talking about a pre-sentence report that the Judge had ordered and which was being discussed. We don’t have a copy of that pre-sentence report in front of us, but Mr Dobson then says:
The basis was to be his behaviour on the home detention. It’s referred to as being exemplary.
APPLICANT: Yes.
TRIBUNAL:‘He has cleaned his life up significantly’. Well, Mr Dobson did refer to the fact that you’d been on home detention, didn’t he?
APPLICANT: Yes, he has mentioned there, but I just mean more like, say - you know, put in a bit more. It just seemed like everything I had listened to Mr Dobson just went the wrong. I must not have listened to that …
TRIBUNAL:Well, it was the subject - it appears to have been the subject of the presentence report, so that was clearly put before Judge Birmingham and also referred to by Mr Dobson.
APPLICANT: Okay. Well, sorry, I just.
The Applicant was then taken to Birmingham DCJ’s comment about the Applicant minimising his conduct (see [77] above) and the following exchange took place:
APPLICANT: Okay. Well, I didn’t understand that too well, sorry.
TRIBUNAL:Well, what the Judge is saying there is that you tend to downplay and blame other people.
APPLICANT: Okay
TRIBUNAL:Do you think that’s a fair assessment?
APPLICANT: I don’t blame other people, no.
TRIBUNAL:Well, you blamed Mr Dobson, didn’t you?
APPLICANT: Well, I did for the fact of what he told me to do. I listened to everything he wanted me to do.
The Applicant then conceded that he ‘had read it wrong’
In this context the Tribunal also notes the repeated characterisation by the Applicant in his statements of his violent attack at the bottle shop in 2016, in relation to which he was convicted of grievous bodily harm, as ‘an accident’. The Applicant was cross-examined on this characterisation:
COUNSEL:And so you refer to it as an accident. What do you mean by that?
APPLICANT: Hurting the person, you mean?
COUNSEL:Well, you describe it as an accident and then you also refer to it as a mistake later in your statement. What do you mean by that?
APPLICANT: Well, an accident -well, I can’t really honestly say it’s an accident now. It was a - just an act of stupidity. But I didn’t - honestly, I didn’t - it was like someone else was in my body driving it. It was - it was so strange. I ended up smashing up my own place, which I wouldn’t do. It was - honestly, the - the drug is something evil, like - and I have never, ever experienced nothing like it in my life, and it’s - it has honestly ruined my life, because I - if you have ever tried it, it’s - it’s something you would - you know, and I’m not saying you have tried it, but it’s evil. Like, I have seen so many people come through prison and everything just because of it. I can’t - - -
The Applicant has one child, a son with Ms Weily, who is presently seven years of age. He lives with his mother and was living with and being supported by the Applicant at the time of the Applicant going into prison.
The Applicant identifies five nephews/nieces as being residents of Australia. There was no evidence led by the Applicant as to his relationship with any of his nephews or nieces or even as to whether any of them are minor children. As far as the evidence presented to the Tribunal indicates, the only relevant minor child is the Applicant’s son.
The evidence indicates that the Applicant and his son are close. The statements and letters from family and friends, as well as the Applicant’s statements, all attest to a close and loving relationship. The child provided a statement (A3) and there was a handwritten letter from the son at R1, G15/91. There were also numerous photographs showing the Applicant and his son together.[60]
[60] R1, G17.
The evidence of Ms Weily was that their son and the Applicant were close, that their son missed the Applicant and that he had cried when they had attended the prison on the Applicant’s ‘release’ only to have the Applicant taken from the prison into immigration detention.
The Respondent acknowledges[61] that it would be in the best interests of the Applicant’s minor son if the cancellation was revoked, and that this should be afforded some weight by the Tribunal. In closing submissions counsel for the Respondent said:[62]
It is clear that, notwithstanding the applicant’s incarceration and subsequent immigration detention, that there has been meaningful contact between them. It is evident that the likely effect of separation from the applicant of his son will have a negative impact upon [omitted]. The Minister accepts that it would be in the best interests of [omitted] for the cancellation decision to be revoked.
[61] Respondent’s SFIC para. 49.
[62] Transcript at 111.
The Tribunal accepts that the Applicant has a close relationship with his infant son and that he plays a significant part in his life. It appears on the evidence that the Applicant financially supported Ms Weily and their infant son and there is nothing to indicate that the Applicant’s influence on the child was other than positive.
The Tribunal finds that the best interests of the Applicant’s minor son would be served by the revocation of the cancellation of the Applicant’s visa. Moderate weight should be given to this consideration.
Third primary consideration: Expectations of the Australian community (13(2)(c))
Paragraph 13.3 of Direction 79 provides:
(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 not revoke the mandatory visa cancellation of such a person. Non-revocation 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 hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The Tribunal also refers to the principles and expectations set out in paragraph 6.3 of Direction 79 (see [33] above).
The proper construction of paragraph 13.3 of Direction 79 has been the subject of much judicial analysis. The starting point for most of the recent analysis was Justice Mortimer’s decision in YNQY v Minister for Immigration and Border Protection[63] (YNQY). The two approaches that emerged following her Honour’s decision in YNQY were the so-called broad approach of the type taken by Griffiths J in DKXY v Minister for Home Affairs[64] (DKXY) and the so-called narrow approach of the type taken by Perry J in FYBR v Minister for Home Affairs[65] (FYBR) (for an analysis of those approaches see [99]-[114] of Pinder and Minister for Home Affairs[66]).
[63] [2017] FCA 1466.
[64] [2019] FCA 495.
[65] [2019] FCA 500.
[66] [2019] AATA 1398.
That debate as to which approach is correct appears to have been resolved by the Full Court of the Federal Court in FYBR v Minister for Home Affairs[67] (FYBR (FC)). The Full Court, in effect, found that the narrow approach taken by Mortimer J in YNQY and by Perry J in FYBR is the correct approach. That is the approach that the proper characterisation of this consideration is a ‘kind of deeming provision’ – expressing ‘an expectation deemed by the government to be held by the Australian community’ (FYBR (FC) at [61] and [80] per Charlesworth J; see also Stewart J at [89]). A thorough analysis of the Full Court decision in FYBR (FC) is set out by Member Burford at [162]-[170] in her decision in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[68] (Rehman).
[67] [2019] FCAFC 185.
[68] [2019] AATA 4424.
Special leave was sought to appeal the decision in FYBR (FC). On 24 April 2020 the High Court (Kiefel CJ and Keane J) refused special leave.[69]
[69] [2020] HCATrans 56.
Justice Stewart in FYBR (FC) found:
89.It is therefore to be expected that the Government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting “community expectations” then, in that sense, they might accurately be understood as “deeming” what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one or even necessarily dominant set of community expectations in this field.
90.However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590-591 per Bowen CJ and Deane J; Bread Manufacturers of NSW v Evans [1981] HCA 69; 180 CLR 404 at 429-430 per Mason and Wilson JJ; CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 at [37] per French CJ and [292] per Kiefel J.
91.The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case – they are to be understood and applied normatively.
Justice Charlesworth also observed:
75.Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
…
79.....The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) “generally” provides, as he or she is permitted to do. Read as a whole, the reasons of the primary judge should not be understood as suggesting otherwise.
Member Burford put it in Rehman as follows:
173.It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government’s view deeming the expectations of the Australian community to be that the Applicant, having committed a serious crime, should not hold the visa. Those expectations remain a primary consideration to which appropriate weight must be given. As expressed, or “deemed” in the Direction, they weigh against revocation with respect to “serious crimes”.
174.However, it remains for the Tribunal to determine what constitutes appropriate weight to be given to this consideration in the ultimate decision. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations.
The Tribunal finds that the Applicant has committed serious, violent crimes and that the Australian community would expect that the Applicant should not hold a visa, that is, that the cancellation of his visa should not be revoked. This weighs against the revocation of the cancellation of the Applicant’s visa. Given the seriousness and nature of the offences, the Tribunal finds that this consideration should be given significant weight.
OTHER CONSIDERATIONS
Paragraph 14 of Direction 79 provides:
(1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a) International non-refoulement obligations;
b) Strength, nature and duration of ties;
c) Impact on Australian business interests;
d) Impact on victims;
e) Extent of impediments if removed.
International non-refoulement obligations (14(1)(a))
The Applicant is a citizen of New Zealand. There are no non-refoulement obligations owed by Australia to the Applicant. This is not a relevant consideration in this matter.
Strength, nature and duration of ties (14(1)(b))
Paragraph 14.2 of Direction 79 is as follows:
(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant arrived in Australia in January 1992 as an 11 year old. Weight is to be given to the fact that the Applicant arrived as a young child (14.2(1)(a)).
The Applicant generally has a reasonable record of employment. At the hearing the Applicant gave his work history as follows:
TRIBUNAL:And can you just give me a summary of your employment since that time?
APPLICANT: Well, I worked at – I’ve worked at a few different things. I did like brickies labouring, I worked at – I did like voluntarily worked when I was at year 11. And then I was at the SES helping out there. And then when I went onto work then I was at the, what’s it called, WA Salvage when they were still open. And then I went onto a green corps thing through the dole, I was working for them, just to get my skills up on horticulturing and stuff like that. After I left there it’s a bit of a mind blank through there but I was a motor trimmer and then I did a little bit of tattooing and then I went back to motor trimming. And then that’s when I went and started working at Alcoa and I worked there for seven years, did multiple things there like from bobcat work to stop and go to excavators, to polywelding. Yeah, pretty much whatever needed done, asphalt, any maintenance that was around Alcoa. And being at Alcoa it was a non-drug – you got drug tested all the time, so that was around when I was hanging around with the Outlaws, I was working.
TRIBUNAL:And at the time of the incident in September 2017 were you working then? I’d just not long been let go because they’d fired me because of incidents that they said that I got set up, told to do this job and I done it because it’s a lot of red tape there, you’ve got to have JHAs and all this. And I didn’t want to do it because the new boss we’d always been arguing about this job. So I did the job for them and then it come out everything went fine but then he took photos and said it was done like this. Everything and I had people backing me up saying, “No, you told them to do this” but he was the boss, so I got let go. But then later on a few other people got let go but then later on a few other people got let go and I found it was because it was coming to the seven year annual leave and it was a new company, they didn’t want to pay us out.
TRIBUNAL:Who were you working for then?
APPLICNAT: WBHO, it was CCK but then South African people bought it out, bought a few different companies and it merged into WBHO.
A document[70] setting out the Applicant’s full work history was also included in the documents provide to the delegate in support of the Applicant’s request for revocation of the cancellation. While there have been short periods of unemployment, the Applicant has generally been employed since 1998.
[70] R1, G23.
The Applicant’s family and social links are in Australia. His mother, his sister, his partner and his son are Australian residents. In his personal circumstances form[71] the Applicant identifies four uncles/aunties, 15 cousins and five nephews/nieces as being residents of Australia. As noted above, there was no evidence led by the Applicant as to his relationship with any of his nephews or nieces or even as to whether any were minor children.
[71] R1, G10/62.
The evidence of the Applicant’s partner and his mother (see [21] and [22] above) was that the Applicant has provided support to them. His mother’s evidence was that the Applicant has assisted her around her home since her husband’s death. It is also clear that both would be significantly emotionally impacted if the Applicant were to be deported. The Applicant’s partner’s evidence was that if he were to be deported she would not go to New Zealand but would rather shift to Tasmania where her parents live.
The Applicant’s partner’s evidence was that she suffered chronic sinus infections and needed surgery. Apart from that there was no evidence that the Applicant’s partner would not be able to continue to support herself and their child if the Applicant were to be returned to New Zealand. She has, since the Applicant has been incarcerated, been employed. She is presently employed in aged care, and has been able to meet the mortgage payments on their house. At the hearing she was asked whether there was anything stopping her from going to live with the Applicant in New Zealand if he were to be deported. Her evidence was:[72]
There’s nothing that would stop me but I feel like it’s, you know, a whole new country, something that we don’t know. I wouldn’t have any family, I don’t know anybody there. Here I only have Daniel and his family, all of my family are in Tasmania. So Daniel and his family is what keeps me here. I wouldn’t want to take my son to a different country that we don’t know.
[72] Transcript at 79 to 80.
The evidence presented by the Applicant indicates that he is well-liked and that his being forced to leave Australia would have an emotional impact on his family and friends, in particular his immediate family of his mother, his partner, their son and his sister. There is nothing to suggest, however, that the impact would be anything other than an emotional impact. While it appears that the Applicant has on occasions done odd jobs around his mother’s house and that he has provided financial support to his partner, the evidence does not suggest than anyone is, or would be, dependent on the Applicant for financial support.
The Applicant’s life from the age of 11 has been in Australia and his family and social connections are in Australia. His father is buried in Australia. The Tribunal accepts that the removal of the Applicant from Australia would have a significant emotional impact on the Applicant, his family and his friends.
The Tribunal finds that this consideration weighs in favour of revocation of the cancellation of the Applicant’s visa.
Impact on Australian business interests (14(1)(c))
Neither party made any submissions on this consideration and the Tribunal finds that this consideration has no application in the present matter.
Impact on victims (14(1)(d))
The only evidence relevant to this consideration was that the victim of the Applicant’s 2016 assault did not want a restraining order in relation to him made against the Applicant and that he had declined to provide a victim impact statement to the court.[73] As the Applicant’s counsel at the sentencing hearing commented, that is ‘probably an indication of the world the victim lives in’.
[73] R1, SG2/341.
Similarly there is nothing before the Tribunal which would allow any assessment to be made of the impact of revocation of the cancellation of the Applicant’s visa on the victim of his assault with a hammer in 2008.
Because of a lack of any relevant evidence, or even submissions by either party, this is not a relevant consideration in this case.
Extent of impediments if removed (14(1)(e))
Paragraph 14.5(1) of Direction 79 provides:
(1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) The non-citizen’s age and health;
b) Whether there are substantial language or cultural barriers; and
c) Any social, medical and/or economic support available to them in that country.
In the Return to Country of Citizenship section of his personal circumstances form[74] the Applicant describes his concerns about returning to New Zealand as follows:
The gang life over there and living on the street because I will give all of the money from my house to Bianca Weily to look after my son [omitted] and may get killed by my old gang in NZ.
[74] R1, G10/66.
In response to the question in that form of whether there were any other problems he would face in going back to New Zealand,[75] the Applicant said:
Not knowing anyone in New Zealand, having no money, having nowhere to live, not being able to hug and kiss my family and if my family gets sick not being there for them.
[75] R1, G10/66.
The Tribunal asked the Applicant about his claimed concern of being targeted by the Outlaws motorcycle gang in New Zealand:
TRIBUNAL:Now, in relation to your comments about the Outlaw motorcycle gang potentially following you up in New Zealand …have you any basis for that belief other than speculation?
APPLICANT: Well, there is Outlaws over there, and I knew that from when I was in the club, because they were all around the world. And, you know, the club scene is a lot different over there than to what it is here.
TRIBUNAL:But you’ve …sorted out your issues with the Outlaws here, haven’t you?
APPLICANT: Yes. Yes, I have, but
TRIBUNAL:And the person who you injured lives here still, doesn’t he?
APPLICANT: Yes, he does.
TRIBUNAL:And there’s no issue with the Outlaws. Why would there be an issue …with the ones in New Zealand? They’re not the ones who you attacked?
APPLICANT: … if people taking something - they - it’s, like, say, myself, I went out and did those stupid actions, because I took it upon myself. It’s, like, one person could take it upon themselves and think, ‘Oh, well, we’ll teach him a lesson’. Like, it’s all sorted here, but it’s - you know what I mean, it’s just
TRIBUNAL:Well, do you have any knowledge that the Outlaws in New Zealand even know of the … attack on …
APPLICANT: I’d say they do. If I get sent back I’m sure people will let people know that I’m there. You know, it’s all via internet these days.
TRIBUNAL:But it is speculation on your part, isn’t it?
APPLICANT: Yes. Like, I just - you know, when you’ve been in there and you see what they are like, and they say it’s not - and, yes, it is all - no problem here, but it’s a totally different thing over there. They probably think, ‘Oh, we’ll show our brothers over here, you know, we look after our own’, you know, I don’t know. Yes, I know it’s only my speculation but, you know what I mean, I just don’t want to deal with it. I just want to be - just get on with my life. Like, even if I get sent back to New Zealand, I probably won’t go and live in New Zealand. I’ll probably have to go somewhere else.
In the end there was simply no cogent evidence to support the Applicant’s assertion that he would be targeted by the Outlaws motorcycle gang if he were to be returned to New Zealand. It is speculation on his part.
The only medical condition that the Applicant identified was his depression and anxiety. There was no suggestion, however, and there was certainly no medical evidence establishing that his anxiety and depression, for which he no longer takes medication (Transcript at 56), would be an impediment to the Applicant either establishing himself or obtaining employment in New Zealand. The Applicant is still a relatively young man with a reasonable work history and a number of qualifications and skills.[76]
[76] R1, G23.
Direction 79 requires the Tribunal to consider impediments in the Applicant establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of New Zealand. This is to be assessed taking into account the Applicant’s age, health, language or cultural barriers and any social, medical and economic support that would be available to him.
The Tribunal accepts that his removal from Australia would have an impact on the emotional state of the Applicant. While the Tribunal accepts that there may be some impediments to the Applicant establishing himself, there is no evidence that he would not be entitled to the same social and medical services available to other citizens of New Zealand. As noted above, the Applicant is not an old man and was working up to the time of his imprisonment. There are obviously no language barriers and there are unlikely to be, and the Applicant has not argued that there would be, cultural barriers in the Applicant establishing a basic standard of living.
This consideration does no weigh in favour of the revocation of the cancellation of the Applicant’s visa.
COVID-19
The Respondent’s SFIC made some submissions on the impact COVID-19 pandemic and the closing of the borders. The Applicant did not raise this issue.
The Respondent’s submissions were as follows:
78.The COVID-19 pandemic has led to restrictions on the movement of people in both Australia and New Zealand.
79.As the Tribunal is aware, in the event that the decision under review is affirmed, officers of the Respondent’s Department are required by force of s 198 of the Act to remove him from Australia “as soon as reasonably practicable” (and he must be detained until he is so removed).
80.Whether or not removal will be practicable is largely dependent upon international events in respect of the COVID-19 pandemic. However, it cannot be said that the applicant’s removal will never be practicable.
81.Moreover, as outlined at [71] above, Australia and the applicant’s country of origin, New Zealand, have broadly comparable health services.
81.1.Whilst in detention, the applicant will have access to medical services provided by the Respondent’s health services contractor, International Health and Medical Services (IHMS), and those available in the WA public health system in the event he requires more complex care.
81.2.In New Zealand, the applicant will have access to the New Zealand public health system.
82.In the circumstances, the respondent contends that this “other consideration” is effectively neutral in the balancing exercise.
Recent decisions of the AAT have considered the impact of the COVID-19 pandemic and the resulting health considerations and restrictions on international travel. Senior Member Dr Evans-Bonner in Medcalf and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[77] (Medcalf) found:
160.If the Tribunal affirms the Reviewable Decision, the Respondent conceded that it is unlikely that the Applicant’s removal to New Zealand will be reasonably practicable (as required under s 198 of the Migration Act) for the immediately foreseeable future during the COVID-19 pandemic. He will therefore be detained in immigration detention for an uncertain timeframe. The Applicant also expressed a fear of being “…stuck in detention indefinitly [sic]” in his written submissions on the COVID-19 pandemic.
The Applicant also stated that he was fearful of catching the virus in immigration detention (transcript, day 2, page 73). In his written submissions on the COVID-19 pandemic the Applicant also stated that he was “very scared and worried… [because]…If the covid 19 [sic] virus is brought into detention it will spread like wild fire…”
[77] [2020] AATA 803.
This Tribunal notes that the fears apparently raised by the applicant identified by Senior Member Dr Evans-Bonner in Medcalf were not raised by the Applicant.
Senior Member Dr Evans-Bonner went on to find:
161.The Tribunal accepts that if it affirms the Reviewable Decision, the Applicant will face an additional period of detention before it will be reasonably practicable for him to be removed to New Zealand. However, to quote Member Eteuati in FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294) at [299]) “[t]his may result in prolonged but not indefinite detention for the Applicant until the risk presented by the virus … subsides”.
(see also decision of Member Burford in CKQV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[78])
[78] [2020] AATA 927.
This Tribunal similarly accepts that in the present case, if the decision under review is affirmed, the period for which the Applicant may be held in immigration detention may be longer than has been the case pre-COVID-19 pandemic, but that the detention will not be indefinite.
The Weighing Exercise
Guidance is given by Direction 79 as to how the decision-maker should apply the primary and other considerations. Paragraphs 8(3), (4) and (5) of Direction 79 are relevant. They provide:
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While these cases were generally looking at that exercise under Direction 65, the same considerations apply to the exercise required by Direction 79 which is materially in the same terms. The leading case in this regard is Suleiman v Minister for Immigration and Border Protection.[79] (See also the Full Court of the Federal Court decision in Minister for Home Affairs v HSKJ).[80]
[79] [2018] FCA 594.
[80] [2018] FCAFC 217; (2018) 363 ALR 325.
Senior Member Dr M Evans-Bonner in CZCV at [164] summarised the legal position following the various cases referred to above as follows:
Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no. 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving another consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so.
This Tribunal agrees with the above approach.
Looking at the first primary consideration, the protection of the Australian community, the relevant consideration is whether the risk is an unacceptable one taking into account the nature and seriousness of the harm that would be caused if there was a repeat of the behaviour and the likelihood of that occurring. For the reasons set out above, the Tribunal assesses the likelihood of the Applicant offending, particularly committing violent offences, as medium. The harm that would be caused if the Applicant were to repeat the offending that he has engaged in in the past is serious. The Tribunal finds that the first primary consideration weighs heavily against revocation of the cancellation of the Applicant’s visa.
The Tribunal finds that the best interests of the relevant minor child in Australia, the second primary consideration, would be served by revocation of the cancellation of the Applicant’s visa and that moderate weight should be given to this consideration.
The third primary consideration, the expectations of the Australian community, weighs against the revocation of the cancellation of the Applicant’s visa.
In relation to the “other considerations”, the consideration of strength, nature and duration of the ties that the Applicant has to Australia (Direction 79 paragraph 14(1)(b)), weighs in favour of the revocation of the cancellation of the visa. The consideration of the impediments that the Applicant would face if he is returned to New Zealand (14(1)(e)) does not weigh in favour of revocation and is, at best for the Applicant, neutral.
Having undertaken the weighing of the consideration for and against the revocation of the cancelation of the Applicant’s visa, the Tribunal finds that the considerations which weigh against the revocation of the cancellation of the visa in particular the first primary consideration, the protection of the Australian community, outweigh the considerations which weigh in favour of the revocation of the cancellation of the Applicant’s visa. Accordingly, the Tribunal finds that there is not another reason why the original decision should be revoked.
DECISION
The decision of a delegate of the Respondent, made 7 February 2020 (R1, G4), not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (temporary) visa under s 501CA(4) of the Act is affirmed.
I certify that the preceding 157 (one hundred and fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
.................................[sgd]....................................
Associate
Dated: 4 May 2020
Date(s) of hearing: 21 April 2020 Applicant: In person Counsel for the Respondent: Mr J Papalia Solicitors for the Respondent: Australian Government Solicitor
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