Pewhairangi and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)
[2022] AATA 2596
•12 July 2022
Pewhairangi and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 2596 (12 July 2022)
Division:GENERAL DIVISION
File Number: 2022/3352
Re:Pewhairangi
APPLICANT
AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member George
Date of Decision: 12 July 2022
Date of Reasons: 2 August 2022
Place:Sydney
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 19 April 2022 that the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa not be revoked under subsection 501(CA)(4) of the Migration Act 1958 (Cth) is affirmed.
[SGD]
Senior Member George
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass the character test – consideration of Ministerial Direction No. 90 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCAFC 185
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
Minister for Home Affairs v Buadromo [2018] FCAFC 15
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member George
2 August 2022
INTRODUCTION AND BACKGROUND
Mr Pewhairangi, also known as Mr Paese,[1] (“the Applicant”) is a New Zealand citizen and resided in Australia on a Class TY Subclass 444 Special Category (Temporary) visa until it was mandatorily cancelled on 27 November 2020 under s 501(3A) of the Migration Act 1958 (“the Act”).[2] The Applicant is aged 26 years and has substantially resided in Australia since the age of five, with occasional visits back to New Zealand.[3]
[1] Exhibit R1, s 501 G-Documents, G5, page 28.
[2] Exhibit R1, s 501 G-Documents, G25, pages 152-158.
[3] Exhibit R1, s 501 G-Documents, G24, pages 150-151.
In a declaration dated 19 December 2020, the Applicant made written submissions to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[4] On 19 April 2022, the Respondent decided to not revoke the cancellation.[5]
[4] Exhibit R1, s 501 G-Documents, G8, page 46.
[5] Exhibit R1, s 501 G-Documents, G2, pages 7-8.
On 27 April 2022, the Applicant lodged an application for review of the 19 April 2022 decision in this Tribunal.[6] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[6] Exhibit R1, s 501 G-Documents, G1, pages 1-6.
The hearing proceeded on 22 June 2022 by audio-visual means. The Applicant was represented by his Migration Agent, Mr Chand. The Respondent was represented by Mr Young of Minter Ellison.
The Applicant gave evidence at the hearing, as did his mother Ms RR.
The Tribunal received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that the Minister may revoke the original decision under s 501(3A) 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 s 501); or
(ii)that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Accordingly, the issue in this matter is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised if either of s 501CA(4)(b)(i) or s 501CA(4)(b)(ii) of the Act are met.[7]
[7] Minister for Home Affairs v Buadromo [2018] FCAFC 151.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), 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”.
On 23 October 2020, the Applicant was convicted in the District Court of New South Wales at Wollongong for “Aggravated robbery and use of violence cause wounding/GBH-SI”. The Applicant was sentenced to a term of imprisonment of 3 years and 4 months, backdated to 10 January 2020, with a non-parole period of two years.[8]
[8] Exhibit R1, s 501 G-Documents, G5, pages 28-29.
The operational effect of ss 501(6)(a) and 501(7)(c) is such that the Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. The Applicant cannot rely upon s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
Is there another reason why the cancellation of the Applicant’s visa should be revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[9]
[9] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
For the purposes of deciding whether to refuse or cancel a non-citizens visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
(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)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests
Paragraph 7(2) of the Direction provides that the primary considerations should generally be given more weight than the other considerations. Paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.
BACKGROUND AND OFFENDING
The Applicant first arrived in Australia in 2001, aged five years, with his parents.[10] The Applicant’s immediate family all reside in Australia and consists of his parents, a step-parent, and a brother.[11]
[10] Exhibit A1, page 1.
[11] Exhibit A1, page 8.
At the time of his offending and arrest, the Applicant resided with his mother and stepfather,[12] which seems to be a “loving environment’.[13] He was employed as a scaffolder.[14] The Applicant has employment prospects in property maintenance if released back into the Australian community.[15]
[12] Exhibit A1, Annexure 3, page 3.
[13] Exhibit A1, Annexure 3, page 10.
[14] Transcript, page 17, line 40.
[15] Transcript, page 18, lines 6-18.
The evidence of the Applicant’s mother, Ms RR, is that she escaped from a violent domestic relationship when the Applicant was 12 years old. Ms RR left with the Applicant’s brother but, reluctantly, not initially with the Applicant. Ms RR says that the Applicant did not cope well with the separation of his parents.[16]
[16] Exhibit R3, S24, page 48-49.
The Applicant has relied upon a psychosocial assessment report prepared by Mr Brian Bembrick, a social worker employed by Legal Aid New South Wales, for the purposes of his sentencing proceedings in the District Court on 23 October 2020.[17] This document details the Applicant’s background, education and employment history, and history of addictive behaviours including substance abuse and gambling. Mr Bembrick reported that the Applicant suffered from an Alcohol use Disorder and a Gambling Disorder.[18]
[17] Exhibit A1, Annexure 3.
[18] Exhibit A1, Annexure 3, page 7.
Mr Bembrick reported that when the Applicant’s “parents’ relationship started to unravel with increasing conflict between them as [the Applicant] entered adolescence”.[19] The Applicant then experienced behavioural problems in school, including engaging in bullying and subsequently being bullied, which he linked to his parents’ relationship breakdown.
[19] Exhibit A1, Annexure 3, page 4.
After several changes of school, the Applicant completed his Higher School Certificate at the age of 18 years and Mr Bembrick reported:
He started drinking more heavily about this time and he told me he was involved in an incident after his nineteenth birthday which resulted in charges and a suspended sentence.[20]
[20] Exhibit A1, Annexure 3, page 5.
The incident referred to was dealt with by His Honour Acting Magistrate McRobert in the Local Court at Wollongong where, on 23 September 2016, aged 20 years, the Applicant was convicted of “Steal from the person” and Common assault-T2”. He was sentenced to a concurrent term of imprisonment for six months, suspended on entering a bond supervised by the NSW Probationary Service “…for counselling, educational development… and alcohol rehabilitation”. Additionally, the Applicant was fined $500 for the offence of “Resist or hinder police officer in the execution of duty”.[21]
[21] Exhibit R1, s 501 G-Documents, G5, pages 28-29.
When His Honour asked the Applicant “Why did this happen?”, the Applicant replied, “Too intoxicated and wasn’t thinking at the time.”[22]
[22] Exhibit R1, s 501 G-Documents, G7, page 41.
In sentencing the Applicant, His Honour’s sentencing remarks include a description of the Applicant’s offending. This can be summarised that the Applicant snatched the purse of a woman who was sitting on the ground outside a nightclub early on a Sunday morning. After thinking “… it was a funny idea, or good idea, to pick it up and run”,[23] the Applicant snatched the purse. He was chased to a car park and seen walking from behind a set of stairs. The events that followed were then addressed by His Honour during sentencing:
One of [the victim’s] friends walked to the stairs from which you had come out and located a purse, and noticed that her driver’s license, bank card and $20 cash was missing. You were confronted by the victim and her friends and said that you did not know what they were talking about essentially. Despite just having subjected this young woman to the indignity of having her property stolen from her you yelled at her, “You’re a piece of shit”, whilst denying having taken her property. When she continued to confront you about this you stepped closer to her and using both hands pushed her in the chest causing her to fall to the ground.
As a result of that she had immediate pain because her head slammed against the ground and she had pain to her hand and shoulder as well. Though I accept that that was a push rather than a punch but having said that it is to my mind gravely similar to issues where drunken persons punch people causing them serious injury or in some cases death. Police were contacted and arrived shortly after. You were identified by police. You denied stealing anything and said that the girls were lying. When police attempted to place you under arrest you yelled out, “What I’m going.” Pulling your arm away from police, making them lose a grip on you. You were again taken under arrest and you again attempted to pull away and had to be restrained.
You were taken to the ground and handcuffed. While being searched the victim’s driver’s licence, bank card and $20 note were located in your rear pocket. To you[r] credit you have entered a plea of guilty at the first available opportunity and you have no prior criminal record. I accept that you are a young man, only 20 years of age … Balanced against that these are extremely serious offences.
Robbing people in the street, assaulting them causing them risk of serious injury possibly even death [is] serious in the extreme [and] is compounded by the fact that you lied about what you had been behaving and struggled with police officers when they attempted to take you into custody. Had you not entered a plea of guilty at the first available opportunity or if you had a significant criminal record, you would be sentenced to imprisonment on a full-time basis.[24]
[Emphasis added]
[23] Transcript, page 8, lines 41-42.
[24] Exhibit R1, s 501 G-Documents, G7, page 42.
It is unclear to the Tribunal if His Honour relied upon a Pre-Sentence Report dated 23 September 2016 that was prepared for the Court.[25] In any event, this report addresses the Applicant’s substance use in the following terms:
[The Applicant] stated that around the time of the offences he had only recently commenced consuming alcohol. He advised that he only occasionally drank alcohol, approximately once a month. He reported that since the offence he has reduced his alcohol intake and did not see his alcohol use as a current issue. He stated that he had never had any issues with drug use.[26]
[Emphasis added]
[25] Exhibit R1, s 501 G-Documents, G7, page 43.
[26] Exhibit R3, S14, page 28.
This Pre-Sentence Report and Mr Bembrick’s later report sit uncomfortably together with respect to the Applicant’s drug use. It has been submitted that the Applicant took marijuana in 2014 and 2015 but ceased when he realised that it disappointed his mother.[27] Broadly consistent with this, Mr Bembrick reported that the Applicant had been addicted to cannabis from the age of 16 to 18 years:
However, his cannabis use appears to have been replaced by binge drinking, and he discussed quite openly and sincerely regular binge drinking with work mates, usually of a Friday and Saturday night, which he referred to as “two night benders”, during which he would drink fairly large quantities of “Jack Daniel’s and Coke, two 750ml bottles.”
[The Applicant] also developed a serious gambling addiction over recent years, in his case to poker machines. He somewhat understated the problem referring to it as being “a bit of a problem” and a “bit of an addiction.” He recognises it is at a problematic level and has a good level of awareness that his alcohol misuse feeds into his gambling addiction and exacerbates this problem. In his words: “When I’m intoxicated, I forget about my losing – it doesn’t matter to me. It makes me less aware.’
[The Applicant] discussed “putting all my pay” in poker machines, “$1,800 per week sometimes” he said. He told me he hadn’t availed of professional help for the addiction.[28]
[Emphasis added]
[27] Exhibit A2, page 2, paragraph [5].
[28] Exhibit A1, Annexure 3, page 7.
Mr Bembrick’s report was relied upon by His Honour Judge O’Brien when sentencing the Applicant for the offences that have ultimately given rise to the present proceedings before the Tribunal.[29]
[29] Exhibit R1, s 501 G-Documents, G6, page 36.
On 23 October 2020, His Honour sentenced the Applicant to a term of imprisonment of three years and four months, with a non-parole period of two years, following a plea of guilty to the offence of “Aggravated robbery and use violence cause wounding/GBH-SI”.[30] The Tribunal has before it a signed copy of the statement of agreed facts of this subsequent offending.[31] The material facts are summarised in the following paragraphs.
[30] Exhibit R1, s 501 G-Documents, G5, page 28-29.
[31] Exhibit A1, Annexure 1.
At 1:00am on Saturday 21 December 2019, the Applicant and the victim were the last two people playing the poker machines at a hotel.
The victim was aged 77 years. The Applicant was aged 23 years.[32]
[32] Exhibit R1, s 501 G-Documents, G6, page 30.
The victim withdrew his money from the poker machine. The victim then left the hotel at 1:13am and was followed by the Applicant approximately 30 seconds later. At 1:24am the victim and the Applicant were shown on CCTV footage walking together, however shortly thereafter, the offender pushed the victim into the rear yard of a residence. The statement of agreed facts read:
The offender punched the victim to the left side of his head and face on more than one occasion. He immediately felt dizzy and fell to the ground. The offender said “Give me your money”. The offender placed his hand into the victim’s trouser pants pocket and took $120 (2 x $50 notes, 1 x $10 note and coins totalling $10). The victim said to the offender “Why are you hitting me … leave me alone”. The offender repeatedly said “Give me your money”.[33]
[Emphasis added]
[33] Exhibit A1, Annexure 1, page 2.
The victim’s “shirt was soaked with blood”. He had lost his hearing aids. The victim was later assisted by a taxi driver, with whom he was familiar.[34]
[34] Exhibit A1, Annexure 1, page 2.
In assessing the objective seriousness of the Applicant’s offending, His Honour said:
The injuries, although not resulting in any permanent disability are nonetheless of some moment. That having been observed they are not at a level of seriousness that sometimes is accompanied by a charge of wounding. They involved a total of seven sutures. Plainly more than one blow was inflicted. The blows were forceful, demonstrated if for no other reason, by the fact that the victim’s dentures were imprinted within the inside of his cheek.
The victim was aged 77 and vulnerable on account of his age. He was an easy target for a fit young man like the offender and his attack upon the victim was on any view, cowardly. Members of our community are entitled to walk the streets at night without fear of being attacked in the way that this offender set upon his victim. There was a limited degree of planning involved but there was planning of a very modest nature. It involved making a decision to follow the victim from the hotel, engaging in some conversation with him and then making a decision to commit the crime. A small amount of property was stolen, $120.[35]
[Emphasis added]
[35] Exhibit R1, s 501 G-Documents, G6, page 34-35.
In the current proceedings, and contrary to His Honour’s findings, the “Applicant instructs that he did not hit the victim and that he did not take the victim’s money”.[36] The Applicant “… instructs that the victim on numerous occasions asked him for directions which made him quite mad, so he turned around and pushed the victim to get away from him”.[37] In examination-in-chief, the Applicant gave an insight into a utilitarian aspect of his plea insofar as he was seeking a discount on sentence and “pretty scared to take the risk on going all the way”.[38]
[36] Exhibit A1, page 5, paragraph [35].
[37] Exhibit A1, page 5, paragraph [34].
[38] Transcript, page 10, lines 21-23.
The Applicant seeks to challenge aspects of DNA evidence. The Applicant also seeks to challenge the actions and observations of a female person and the taxi driver who rendered assistance to the victim.[39] The Tribunal notes that it does not have the benefit of an expert to interpret the meaning of DNA results. The Tribunal has not been furnished with the witness statements of witnesses, or a copy of the electronic record of interview.
[39] Exhibit A2, page 1, paragraph [3].
The Respondent has submitted that:
To the extent that the applicant seeks to deny the facts underlying his conviction, the Minister contends that the Tribunal cannot go behind the applicant’s convictions.[40]
[40] Exhibit R2, page 5, paragraph [5].
The Applicant disagrees with this submission, although the Applicant must discharge the heavy onus on a person seeking to challenge the facts essential to a criminal conviction and sentence.[41] Indeed, in these circumstances the Tribunal must be wary not to interfere with essential judicial functions exercising a criminal jurisdiction.
[41] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121.
The Tribunal balances the weight of His Honour’s sentencing remarks with the Applicant’s denials he hit the victim or took the victim’s money. In so doing, the Tribunal notes the following paragraphs from His Honour’s remarks:
He has employment available upon his release from custody. He has a strong family support network and I accept that it is his intention to reduce his alcohol intake and spend more time with his family. He acknowledges and understands that the problem that has given rise to his current circumstances is his abuse of alcohol. That level of insight is of importance in my concluding that he has good prospects of rehabilitation. I also accept that he is remorseful and contrite for what he has done.
In answer to a question I posed to him, he told me that he felt terrible for what he had done to the victim and that he thinks about it most days. I have no reason to doubt that he was being truthful and I accept what he told me in that regard.[42]
[Emphasis added]
[42] Exhibit R1, s 501 G-Documents, G6, page 37.
Although the Tribunal does not have a transcript of the dialogue between His Honour and the Applicant, it was open at that time for the Applicant to tell His Honour that he did not punch the victim or take the victim’s money. These were facts essential to the Applicant’s criminal conviction and sentence. Instead of denying these facts, the Applicant expressed remorse and contrition.
Balancing the evidence before it, the Tribunal prefers the account of the Applicant’s offending contained in His Honour’s sentencing remarks to the Applicant’s denials that have been pressed during these proceedings. The Applicant has not discharged the heavy onus on him in seeking to challenge the facts essential to his criminal conviction and sentence for his 2019 offending.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. The Tribunal will now turn to addressing these considerations.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
In 2016, the Applicant committed a common assault against a woman after committing an act of stealing.
In 2019, the Applicant committed an aggravated robbery using violence against a 77-year-old man.
The Applicant’s offending is viewed very seriously by the Tribunal.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention.
In 2016, the Applicant committed an offence of resisting, or hindering, a police office in the execution of their duty. This is a crime committed against a government official in the performance of their duty.
In 2019, the Applicant committed an aggravated robbery using violence against a vulnerable member of the community, namely against an elderly man 54 years his senior.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending.[43]
[43] Pavey and Minister for Home Affairs [2019] AATA 4198, [44].
The Applicant has been sentenced to a term of actual imprisonment for his 2019 offending, which indicates the objective seriousness of his offending.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
The Applicant has submitted that his offending has not escalated in seriousness.[44] Objectively the differences in sentences for the Applicant’s 2016 and 2019 offending suggest otherwise.
[44] Exhibit A2, page 2, paragraph [4].
There is a significant difference in sentence between a term of imprisonment of six months suspended, and three years and four months with a non-parole period of two years. This remains so even considering the Applicant’s otherwise good character for his 2016 offending, of which he did not have the full benefit for his 2019 offending.
On this basis the Tribunal is satisfied that the Applicant’s offending has escalated in seriousness, however given that there are only two incidents of offending the Tribunal does extrapolate this escalation into a trend.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
The Applicant’s offending is violent and alcohol fuelled. The Applicant has offended against a woman, an elderly man, and police in the execution of their duties. The cumulative effect of the Applicant’s offending represents significant breaches of the peace.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
There is no evidence before the Tribunal that the Applicant has provided false or misleading information to the Department. Therefore, the Tribunal does not regard this factor to be relevant.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.
There is no evidence before the Tribunal that the Applicant was formally warned about the consequences of further offending in terms of his migration status as a non-citizen. Therefore, the Tribunal does not regard this factor to be relevant.
The Tribunal does not consider factors (f) or (g) of paragraph 8.1.1(1) of the Direction applies to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that in considering the need to protect Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posted by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
·the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
·the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account (i) information and evidence on the risk of the non-citizen re-offending; and (ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and
·where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
His Honour Judge O’Brien remarked that the Applicant had “committed a very serious offence” in 2019, which carried maximum penalty of 25 years imprisonment.[45] He went on to say though that:
In my assessment the offending falls at a point well below the midrange of objective seriousness for offences of this type – notwithstanding that it is undoubtedly an offence of some seriousness.[46]
[45] Exhibit R1, s 501 G-Documents, G6, page 30.
[46] Exhibit R1, s 501 G-Documents, G6, page 36.
For the 2016 offending, His Honour Acting Magistrate McRobert made it clear that he regarded the Applicant’s offending as “extremely serious”.
The Tribunal is satisfied that nature of the Applicant’s offending to date is very serious.
Likelihood of engaging in further criminal or other serious conduct
In sentencing the Applicant, His Honour Judge O’Brien remarked that the Applicant had employment upon release from custody, a strong family network and insight into his abuse of alcohol. His Honour concluded that the Applicant had good prospects of rehabilitation.
The substance of Mr Bembrick’s report is that the Applicant has ongoing issues with alcohol and gambling that would benefit from “further participation in psycho-educative programs”.[47] Although this is acknowledged by the Applicant, the Applicant also says:
… I have definitely learned my lesson while serving my time in prison, I also think that I have rehabilitated while in jail and if I am in need of any sort of counselling I am willing to apply for classes/programs on the outside once released.[48]
[47] Exhibit R3, page 59.
[48] Exhibit R1, s 501 G-Documents, G21, page 143.
These words of the Applicant cause the Tribunal concern. They convey a level of equivocation inconsistent with a person who will certainly seek rehabilitation to prevent reoffending.
The Applicant is wrong that his repeated offending may be characterised as a “drunken mistake”.[49] The Applicant’s offending could never be a “… a funny idea, or good idea”.[50] Mr Bembrick is clear that Applicant’s offending was caused, at least in part, by his alcohol and gambling issues.[51] These issues are not resolved.
[49] Exhibit R1, s 501 G-Documents, G8, page 47.
[50] Transcript, page 8, lines 41-42.
[51] Exhibit R3, page 58, paragraph [33].
Considering all the material before it, the Tribunal is satisfied that the Applicant may engage in further criminal violence if released into the Australian community. Given the very serious nature of the Applicant’s antecedents, the Tribunal regards this risk as unacceptable.
Conclusion: Primary Consideration 1
Primary Consideration 1 weighs heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
The Applicant has submitted, and the Tribunal accepts, that there is no evidence of family violence raised in this matter.[52] Therefore, this consideration is not relevant.
[52] Exhibit A1, page 2, paragraph [17].
Conclusion: Primary Consideration 2
Primary Consideration 2 is not relevant.
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
· the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
· the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
· the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
· the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
· whether there are other persons who already fulfil a parental role in relation to the child;
· any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
· evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
· evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has submitted, and the Tribunal accepts, that the Applicant does not have minor children and that this consideration is not relevant.[53]
Conclusion: Primary Consideration 3
[53] Exhibit A1, page 7, paragraph [63].
Primary Consideration 3 is not relevant.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[54]
[54] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Analysis – Allocation of Weight to this Primary Consideration 4
Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:
·The Applicant moved to Australia when he was five years old and is now aged 26 years.
·The Applicant remains close with his mother, Ms RR, and has resided with her in a loving environment.
·The Applicant has maintained employment whilst not imprisoned or detained.
·The Applicant has committed violent offences against a woman, an elderly man, and police in the execution of their duties.
·The Applicant’s offences escalated in seriousness between 2016 and 2019 and are very serious.
·The Applicant’s preparedness to commit crimes raises serious concerns about his character.
The Applicant has engaged in serious criminal conduct. The Applicant’s conduct raises serious character concerns.
Conclusion: Primary Consideration 4
Primary Consideration 4 weighs heavily against revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. The four stipulated sub-paragraphs are considered at (a), (b), (c) and (d) respectively.
(a) International non-refoulement obligations
The Applicant does not make any claims with respect to Australia’s non-refoulement obligations.
The Tribunal is not satisfied that a claim with respect to Australia’s non-refoulement obligations arises on the evidence. This Other Consideration is therefore not relevant to the determination of this application.
(b) Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account 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 any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
Having regard to the abovementioned matters, the Applicant is aged 26 years and the evidence before the Tribunal does not support the making of findings regarding:
(a)physical ill health;
(b)substantial language or cultural barriers if removed to New Zealand; or
(c)any lesser social, medical and/or economic support available to the Applicant in New Zealand that he would otherwise be able to access in Australia. In making this finding, the Tribunal notes the evidence before it regarding some anti-social characteristics of his family in New Zealand.[55]
[55] Transcript, page 22, lines 8-47; page 23, lines 1-7.
Considering the evidence before the Tribunal, the extent of impediments if removed carry a slight level of weight in favour of exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa.
(c) Impact on victims
This Other Consideration (c) requires that decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There was no victim impact statement contained in the Crown Submissions on Sentence for the purposes of the Applicant’s sentencing for his 2019 offending.[56] There is also no evidence of a victim impact statement for the Applicant’s 2016 offending. Indeed, there is no information available to the Tribunal to indicate a negative impact on any victims should the Applicant remain in Australia. This Other Consideration (c) is therefore neutral.
[56] Exhibit R3, S30, page 76.
(d) Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Tribunal is bound to consider the impact of its decision on the Applicant’s immediate family member in Australia, where those family members have citizenship, permanent residency, or an indefinite right to remain in Australia. In so doing, the Tribunal has noted the Applicant’s extensive family ties to Australia. The Tribunal has placed weight on the Applicant’s close relationship with his mother.
The Tribunal has considered that the Applicant has lived continuously in Australia since June 2001. Although the Applicant has made some vocational contributions during that time, the Tribunal balances these contributions against his very serious criminal offending.
Given the Applicant’s strength, nature and duration of his ties to Australia the Tribunal places some weight in favour of revoking the Applicant’s mandatory visa cancellation.
Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: not relevant;
(b)extent of impediments if removed: carries a slight level of weight in favour of exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa;
(c)impact on victims: neutral; and
(d)links to the Australian community: carries some weight in favour of exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa.
CONCLUSION
Under s501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or, the Tribunal must be satisfied that there is another reasons, pursuant to the Direction, to revoke the cancellation. As noted and found above, the Applicant does not pass the character test.
Having regard to the Direction and to the totality of the evidence, the Tribunal is of the view that there is not another reason to exercise the discretion afforded by s501CA(4) of the Act to revoke the mandatory visa cancellation decision.
In reaching that conclusion, the Tribunal has had regard to the considerations referred to in the Direction. The Tribunal finds follows:
·Primary Consideration 1 weighs heavily against revocation of the cancellation of the Applicant’s visa;
·Primary Consideration 2 is not relevant;
·Primary Consideration 3 is not relevant;
·Primary Consideration 4 weighs heavily against revocation of the cancellation of the Applicant’s visa; and
·The weight attributable to the four-listed Other Considerations as found above.
·The Tribunal considers that the totality of the very heavy weight it has attributed to Primary Consideration’s 1 and 4, outweighs the weight it has allocated to the remaining Primary and Other Considerations;
·A holistic view of the considerations in the Direction therefore favours the non-revocation of the mandatory cancellation of the Applicant’s visa.
Consequently, the Tribunal cannot exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 19 April 2022 that the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa not be revoked under subsection 501(CA)(4) of the Migration Act 1958 (Cth) is affirmed.
I certify that the preceding 113 (one-hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member George
.................................[SGD].......................................
Associate
Date of Decision:
Date of Reasons:
12 July 2022
2 August 2022
Date of Hearing:
22 June 2022
Migration Agent of the Applicant:
Mr M Chand
Solicitor for the Respondent:
Mr T Young
Minter EllisonAnnexure A –Exhibit Register
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
A1
Applicant’s Statement of Facts, Issues and Contentions including Annexures 1-14
A
2 June 2022
2 June 2022
A2
Applicant’s evidence in Reply to the Respondent’s Statement of Facts, Issues and Contentions
A
17 June 2022
17June 2022
R1
Section 501 G-Documents
R
Various
15 June 2022
R2
Respondent’s Statement of Facts, Issues and Contentions
R
15 June 2022
15 June 2022
R3
Respondent’s Bundle of Evidence
R
Various
15 June 2022
1
9
0